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[ "FIRST SECTION CASE OF SERGEY VASILYEV v. RUSSIA (Application no. 33023/07) JUDGMENT STRASBOURG 17 October 2013 FINAL 17/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sergey Vasilyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "33023/07) 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 Sergey Mikhaylovich Vasilyev (“the applicant”), on 29 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 while the criminal proceedings against him were pending; and that he had been unable to exercise his right to correspond with the Court without hindrance.", "4. On 29 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 THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and is serving a prison sentence in Yemva, Komi Republic.", "A. Criminal proceedings against the applicant 6. On 1 July 2005 the police found N.’s body in the basement of an abandoned church. In the course of their investigation, it was established that on that date N. had been seen in the company of the applicant and two women, K. and S. All of them were questioned and denied having been involved with N.’s murder. 7.", "On 3 October 2005 the police again questioned K., who indicated that the applicant had murdered N. 8. On 11 October 2005 the police arrested the applicant. He claimed to have been beaten up during his arrest. He was brought to the police station where, according to the applicant, the policemen involved in his arrest continued torturing him to make him confess to N.’s murder. On the same date the applicant was brought to the prosecutor’s office, where investigator B. questioned him at 7:40 p.m.", "According to the transcript of the questioning session, lawyer Sh. was present and assisted the applicant. The applicant first refused to give a statement, then he confessed that he had got into a fight with N. in the church and left him there. The applicant was taken to the Kostroma temporary detention centre. He was examined by a doctor who did not see any injuries on him.", "Nor did the applicant complain of ill‑treatment during his arrest or while in police custody. 9. On 13 October 2005 the Kostroma Sverdlovskiy District Court authorised the applicant’s pre-trial detention. In particular, the court noted as follows: “The court has established that [the applicant] is charged with a particularly serious offence which entails a mandatory custodial sentence in the event of a guilty verdict. The court therefore considers that, if released, [the applicant] may abscond ... [H]aving regard to the [applicant’s] previous administrative [offence] and criminal record, the court considers it possible that, if released, he may continue his criminal activity and put pressure on witnesses or interfere with the establishment of the truth.” 10.", "On 20 October 2005 the applicant was indicted on the charge of manslaughter. According to the records of the indictment, lawyer Sh. was present and assisted the applicant. According to the applicant’s submissions, Sh. appeared only for the questioning session that followed the indictment being brought forth.", "11. On 8 and 30 December 2005 the District Court extended the applicant’s detention until 3 January and 3 March 2006 respectively. The court reiterated almost verbatim its reasoning of 13 October 2005. 12. On 7 February 2006 investigator Kir.", "reclassified the charges against the applicant and indicted him with one count of murder, along with robbery and making death threats to K. and S. 13. On 27 February 2006 the District Court extended the applicant’s detention until 3 April 2006. The court noted that the applicant was charged with two particularly serious offences and again referred to the same reasons for his detention as previously given: (1) the risk of the applicant’s absconding; (2) the possible continuation of his criminal activity; and (3) the potential for him to interfere with the administration of justice, including, but not limited to putting pressure on witnesses and the victims of some of the offences charged. 14. On 20 April 2006 investigator Kir.", "again reclassified the charges against the applicant by substituting robbery with theft. 15. On 21 April 2006 the District Court extended the applicant’s detention until 22 May 2006. In its reasoning, the court noted as follows: “The court has established that [the applicant] is charged with a particularly serious offence involving violence against the person ... which entails a mandatory custodial sentence; that he has a previous criminal and administrative [offence] record; that he is unemployed; and that he does not live at his registered place of residence. The court considers that there are sufficient reasons to believe that, if released, [the applicant] might abscond, continue criminal activities, interfere with the establishment of the truth by putting pressure on witnesses or victims or otherwise interfere with the administration of justice.” 16.", "On 24 October 2006 the District Court extended the applicant’s detention until 24 December 2006, referring to the gravity of the charges against him. The applicant appealed, asking the court to release him on an undertaking not to leave town. 17. On 30 November 2006 the Kostroma Regional Court upheld the decision of 24 October 2006 on appeal, ordering that the applicant’s detention be extended until 21 December 2006. The court reviewed the applicant’s arguments concerning the alleged unlawfulness of the entire period of his detention and that there had been a lack of relevant and sufficient reasons for its extension and dismissed them.", "The court held the hearing in the absence of the applicant’s counsel. 18. On 14 December 2006 the District Court, referring to the gravity of the charges against the applicant, extended his detention until 27 March 2007. Lawyer R. represented the applicant during the hearing. 19.", "On 7 February 2007 the District Court found the applicant guilty of murder and sentenced him to ten years’ imprisonment. He was acquitted of the charges of theft and making death threats. 20. On 29 March 2007 the Regional Court upheld the applicant’s conviction on appeal. B.", "Conditions of the applicant’s detention 1. Temporary detention centre in Kostroma 21. From 11 to 21 October 2005 the applicant was held at the temporary detention centre in Kostroma. 22. The Government’s submissions as regards the conditions of the applicant’s detention in the temporary detention centre can be summarised as follows: Period of detention Cell no.", "Surface area (in square metres) Number of inmates Number of sleeping places From 11 to 12 October 2005 13 12.10 3 4 From 13 to 15 October 2005 4 5.76 3 3 From 16 to 21 October 2005 5 6.37 2 2 23. The cells were equipped with a ventilation system in good working order. The windows in the cells were covered with metal bars on the outside and a metal mesh on the inside. The cells were all lit with 100-watt electric bulbs. Only cell no.", "13 was equipped with a toilet, which was located some 1.55 metres away from the dining table and 2.90 metres away from the closest sleeping place. The toilet was separated from the living area of the cell with an eighty-six-centimetre high partition. The inmates detained in cells nos. 4 and 5 were allowed to use the toilet located outside the cells three times a day. In cells nos.", "4 and 5 there were no individual beds. The applicant was allowed one hour of daily exercise in a yard adjacent to the temporary detention centre. 24. The applicant provided the following information on the conditions of his detention there. Period of detention Cell no.", "Surface area (in square metres) Number of inmates From 11 October to 12 October 2005 13 8 3 From 12 to 14 October 2005 5 5 3 From 14 to 15 October 2005 10 4 2 From 15 to 21 October 2005 4 5 2 25. In all the cells the windows were covered with metal shutters and provided no access to natural light. The electric light, which was dim and provided insufficient lighting, was constantly on. During their detention in cells nos. 4 and 5, which were not equipped with a toilet, the inmates had to use a plastic bucket kept in the corner of the cell in plain view of other detainees present in the cell.", "The inmates were only allowed to empty the bucket once a day. There was no sink. The inmates did not receive bed linen or blankets. In cells nos. 4 and 5 there were no mattresses or pillows.", "The inmates were confined to the cell twenty-four hours a day without any opportunity for outdoor exercise. 2. Remand prison no. IZ-44/1 in Kostroma 26. From 21 October 2005 to 3 April 2007 the applicant was held at remand prison no.", "IZ-44/1 in Kostroma. (a) The description provided by the Government 27. The Government’s submissions as regards the remand prison population can be summarised as follows: Period of detention Cell no. Surface area (in square metres) Number of inmates Number of beds From 21 to 24 October 2005 4 12.4 No more than 3 6 From 24 October to 10 February 2006 53 37.1 No more than 9 12 From 10 to 16 February 2006 29 12.15 No more than 3 8 From 16 February to 14 April 2006 23 8.97 No more than 2 8 From 14 to 25 April 2006 25 28.1 No more than 7 14 From 25 April to 22 September 2006 23 8.97 No more than 2 8 From 22 to 28 September 2006 36 32.8 No more than 8 12 From 28 September to 2 October 2006 1 11.1 No more than 4 4 From 2 October 2006 to 7 February 2007 23 8.97 No more than 2 8 From 7 to 22 February 2007 25 28.1 No more than 7 14 From 28 March to 3 April 2007 25 28.1 No more than 7 14 28. At all times the applicant had an individual sleeping place, bed sheets, a mattress, a pillow, a blanket and towels.", "He was also provided with a mug, a spoon and a bowl. 29. Each cell had one or two windows, which ensured adequate access to natural light. The windows were covered with metal bars with openings measuring 7 centimetres by 20 centimetres. The ventilation system installed in the cells was in good working order.", "The electric lighting was constantly on. From 10 p.m. to 6 a.m. the cells were lit with a 40-watt bulb. 30. The toilet in each cell was separated from the living area with one-metre high brick walls and a wooden door. The distance between the toilet and the nearest bed and a dining table was at least 2 metres.", "The cells were disinfected and cleaned on a regular basis. The inmates could practice outdoor exercise in specially designated yards. (b) The description provided by the applicant 31. The applicant provided the following information on the conditions of his detention there. Period of detention Cell no.", "Surface area (in square metres) Number of inmates Number of beds From 21 to 24 October 2005 4 12 10-27 6 From 24 October 2005 to February 2006 53 24 10-12 12 Seven days in February 2006 29 12 16 8 From February to April 2006 23 12 5-16 8 Seven days in April 2006 25 30 7-24 14 From April to August 2006 23 (see above) Five days in August 2006 36 20 10 10 Three days in August 2006 1 8 9 4 From August 2006 to February 2007 23 (see above) From 7 to 21 February 2007 25 (see above) From 26 March to 3 April 2007 25 (see above) 32. The number of beds was insufficient and the inmates had to take turns to sleep. The ventilation was not in working order. It was stiflingly hot in the summer and very cold in the winter. The cells were dimly lit.", "The walls were covered with mould. The cells were infested with mice, rats, lice, spiders and cockroaches. The administration of the remand prison took no measures to exterminate them. The toilet was only separated from the living area of the cell in cells nos. 23 and 53.", "In those cells, however, a person using the toilet could be seen by guards through a peephole in the door. The guards in the remand prison were mostly female. In cell no. 25 the toilet was located a mere fifty centimetres away from the nearest sleeping place. The applicant received one set of bed linen.", "The sheets and pillow cases were torn and had holes. The food was of a low quality. The inmates were allowed to take a shower once a week. The shower room was dirty and the water smelled. Outdoor exercise was allowed for 10 to 40 minutes a day.", "(c) Domestic litigation concerning the conditions of the applicant’s detention 33. On an unspecified date the applicant brought a civil action for damages caused by his detention in appalling conditions in the remand prison during the following periods: (1) from 21 October 2005 to 22 February 2007, (2) from 28 March to 3 April 2007, (3) July‑August 2007, (4) October 2007, (5) from 24 December 2008 to 23 January 2009 and (6) from 25 February to 3 March 2009. 34. In written submissions before the court the applicant argued that he had been detained in the remand prison in overcrowded cells, where the personal space afforded to him had been as low as 0.45 square metres. He had not been provided with an individual sleeping place.", "The ventilation system had been out of order. The cells had been poorly lit. The toilet had not been separated from the living area of the cell and had offered no privacy. It had been very cold in the cells in the winter and very hot in the summer. The bed sheets had been of poor quality and had never been replaced.", "The food had been of poor quality and inedible. 35. The administration of the remand prison did not dispute the applicant’s allegations as regards the overcrowding of the cells. They explained that the population of the remand prison had constantly exceeded its designed capacity. The statutory standard of 4 square metres per inmate had not been met.", "Nor had the applicant been provided with an individual bed. 36. On 10 September 2009 the Kostroma Sverdlovskiy District Court granted the applicant’s claims in part concerning the overcrowding of the remand prison and awarded him 20,000 Russian roubles (RUB) in compensation for non-pecuniary damage. The judgment stated as follows: “As is evident from the materials in the case-file, [the applicant] was detained for a lengthy period in [the remand prison] pending criminal proceedings against him which ended with a guilty verdict. According to the cell records submitted by the [administration of the remand prison], the applicant was detained in cells no.", "25, 22, 23, 17, and 46. The court does not lose sight of the fact that the [administration of the remand prison] failed to submit the complete cell records ... . As is clear from the cell surface plan ..., cell no. 25 measured 13.6 square metres, cell no. 22 measured 14.1 square metres, [and] cell no.", "17 measured 13.1 square metres. No information was submitted in respect of cell no. 46. According to the certificate submitted by [the administration of the remand prison] (original records were not presented), the cell population of the remand prison in 2005-2007 was as follows: cell no. 25 housed from 9 to 19 inmates, cell no.", "23 housed from 3 to 14 inmates, [and] cell no. 17 housed from 2 to 12 inmates. During the period from 26 March to 3 April 2007 cell no. 25 housed from 10 to 16 inmates; [the administration of the remand prison] submitted no information in respect of cell no. 22; [and] cell no.", "17 housed from 8 to 9 inmates. From July to 15 August 2007 cell no. 25 housed from 6 to 13 inmates [and] cell no. 17 housed from 1 to 7 inmates. In October 2007 cell no.", "25 housed from 11 to 21 inmates; cell no. 17 housed from 3 to 6 inmates; [and] cell no. 23 housed from 3 to 7 inmates. From 24 December 2008 to 23 January 2009, cell no. 23 housed from 6 to 7 inmates.", "From 25 February to 3 March 2009 cell no. 17 housed from 3 to 4 inmates. Even though [the administration of the remand prison] failed to present data in respect of cells nos. 22 and 46, the [statutory] standards regarding personal space of 4 square metres [per inmate] were not complied with. In such circumstances, the court accepts as proven that [the applicant] did not always have an opportunity to sleep during the prescribed time and that the toilet did not offer privacy as required by [the applicable legislation].", "The said non-compliance with statutory standards caused him some discomfort and humiliation, i.e., physical and mental suffering. The court does not share the opinion proffered by the representative of the Ministry of Finance that such circumstances require special proof. The [court] shares the opinion of the representative of the remand prison that the administration of the remand prison could not be held liable for the number of inmates detained [in the remand prison]. Such a number is not determined by the Federal Correctional Service. It depends on other factors.", "It has been proven that during the period of the [applicant’s] detention the design capacity of the remand prison was 298 inmates, while the actual prison population amounted to 353, 420, 382 and 341 inmates. [The court] takes into account the argument made by the representative of the remand prison that out of 80 remand prisons in the country there are only two that comply with the relevant requirements.” 37. On 13 January 2010 the Regional Court upheld the judgment of 10 September 2009 on appeal. C. Investigation in response to the applicant’s allegations of ill‑treatment 38. On an unspecified date the applicant brought a complaint alleging that the policemen involved in his arrest had severely beaten and tortured him during his arrest and ensuing detention at the temporary detention centre.", "39. On 28 May 2007 an investigator at the Kostroma Town Prosecutor’s Office refused to open criminal proceedings against the alleged perpetrators. The applicant appealed. 40. On 31 July 2007 the District Court upheld the investigator’s decision.", "The court referred, inter alia, to the medical documents obtained from the temporary detention centre and statements made by the applicant, the alleged perpetrators and other witnesses. On 16 October 2007 the Regional Court upheld the decision of 31 July 2007 on appeal. D. Correspondence with the Court 41. On 17 September 2007 the applicant asked the administration of correctional colony no. IK-7 where he was serving a prison sentence to dispatch an application form to the Court.", "The application form never reached the Court. The applicant’s attempts to obtain proof of postage from the colony administration, such as the dispatch date or the outgoing number of the letter enclosing the application form, were to no avail. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 42. The applicant complained about the conditions of his pre-trial detention at the temporary detention centre and then at remand prison no.", "IZ-44/1 in Kostroma and that he had not had an effective remedy in this respect. The Court will examine the complaint under Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The parties’ submissions 43. The Government submitted that the applicant had lost his victim status. In the Government’s view, the Russian authorities had expressly acknowledged the violation of his rights set out in Article 3 and had awarded him commensurate compensation.", "In particular, they pointed out that on 10 September 2009 the District Court had granted the applicant’s claims in part concerning the conditions of his detention in remand prison no. IZ-44/1 in Kostroma and had awarded him RUB 20,000. They also argued that the applicant should have brought a similar civil action in respect of his conditions of detention in the temporary detention centre. Accordingly, his complaint in this respect should be dismissed for his failure to exhaust effective domestic remedies. 44.", "The applicant submitted that the domestic courts had failed to award him proper compensation in connection with his detention in overcrowded cells in the remand prison. 2. The Court’s assessment (a) The applicant’s victim status 45. The Court reiterates that an applicant is deprived of his or her status as a victim 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 46. As regards the acknowledgement of the violation of the applicant’s rights set out in Article 3 of the Convention, the Court notes and the parties do not dispute that on 10 September 2009 the District Court found that the remand prison had been overpopulated for the entire period of the applicant’s detention there. As a result, the applicant had not been provided with personal space as per the statutory standards and had not had an individual bed. On 13 January 2010 the Regional Court upheld the said judgment on appeal.", "47. Regard being had to the above, the Court accepts that the Russian authorities acknowledged a violation of the applicant’s rights set out in Article 3 of the Convention on account of the conditions of his detention in remand prison no. IZ-44/1 in Kostroma. (ii) Whether the redress afforded was appropriate and sufficient 48. In assessing the amount of compensation awarded by the domestic courts, the Court will consider, on the basis of the material in its possession, what it would have done in the same position for the period taken into account by the domestic court (see, mutatis mutandis, Scordino, cited above, § 211).", "49. With regard to the amount awarded, the Court observes that for a cumulative period exceeding two years during which the applicant was detained in overcrowded cells (see paragraph 33 above), the District Court awarded him RUB 20,000 in compensation for non-pecuniary damage, which, at the time, amounted to approximately 494 euros (EUR). The Court observes that this amount is much lower than what it generally awards in similar Russian cases (compare, Skachkov v. Russia, no. 25432/05, § 75, 7 October 2010; Vladimir Sokolov v. Russia, no. 31242/05, §§ 49, 58‑64, 89, 29 March 2011; and Vadim Kovalev v. Russia, no.", "20326/04, § 73, 10 May 2011). That factor in itself leads to a result that is manifestly unreasonable having regard to the Court’s case-law. 50. The Court concludes accordingly that the redress afforded was insufficient. Accordingly, the second condition has not been fulfilled.", "The Court considers that the applicant can in the instant case still claim to be a “victim” of the violation of Article 3 of the Convention on account of the conditions of his detention in the remand prison. Accordingly, this objection by the Government must be dismissed. (b) Exhaustion of domestic remedies 51. As regards the Government’s objection as to the non-exhaustion of domestic remedies, the Court reiterates that in the case of Ananyev (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 had not been 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 complaints, in breach of Article 13 of the Convention. 52. The Court further observes that that in a number of earlier cases against Russia (see, for example, Khristoforov v. Russia, no. 11336/06, §§ 18-19, 29 April 2010) it dismissed the Government’s objection as to the alleged non-exhaustion of domestic remedies by the applicant for their failure to demonstrate the practical effectiveness of the applicant’s recourse to the domestic authorities in respect of his complaints about the conditions of his detention in a temporary detention centre.", "53. Having examined the Government’s arguments, the Court finds no reason to depart from that conclusion in the present case. Accordingly, the Court rejects the Government’s argument as to the exhaustion of domestic remedies. (c) Application of the six-month rule 54. In the light of the Court’s above finding that the Russian legal system offers no effective remedy providing adequate redress, the Court considers that the six months’ period should start running from the end of the situation complained of.", "55. The Court observes that the applicant’s complaint concerns different detention facilities in Kostroma, namely a temporary detention centre and remand prison no. IZ-44/1. The applicant was detained in the temporary detention centre from 11 to 21 October 2005. Then he was transferred to the remand prison where he was held from 21 October 2005 to 3 April 2007.", "In this connection the Court reiterates that detention facilities of different types, such as temporary detention centres and remand prisons, have different purposes and vary in the material conditions they offer. The difference in material conditions of detention creates the presumption that an applicant’s transfer to a different type of facility would require the submission of a separate complaint about the conditions of detention in the previous facility within six months of such a transfer (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 76, 17 January 2012). 56. Examining the applicant’s situation in the light of the above principles, the Court observes that the applicant’s detention in the temporary detention centre in Kostroma ended on 21 October 2005 and, accordingly, if he wished to complain about the conditions of his detention in that centre, he should have done so by 21 April 2006, whereas his application was lodged on 29 June 2007.", "It follows that the applicant’s complaint about the conditions of his detention in the temporary detention centre in Kostroma has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. As regards the remaining period of the applicant’s detention, no issue under the six-month rule arises. (d) Conclusion 57. Having regard to the above, the Court finds that the complaint concerning the conditions of the applicant’s detention in remand prison no. IZ-44/1 in Kostroma and the complaint concerning the lack of an effective remedy in this respect 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 58.", "The applicant asserted that he had been detained in appalling conditions in remand prison no. IZ-44/1 in Kostroma. All the cells had been overcrowded. The applicant challenged the veracity of the data submitted by the Government as regards the population and the size of the cells in which he had been detained. In that connection he referred to the findings made by the Kostroma Sverdlovskiy District Court, which on 10 September 2009 had held that the cells in which the applicant had been detained had been overcrowded.", "He further relied on statements made by Kh. and V., who had been detained together with him at the remand prison and who had provided a description of the conditions of detention in the remand prison similar to that of the applicant. As regards his application to the domestic courts in connection with the poor conditions of detention in the remand prison, the applicant considered that it could not have been considered an effective remedy for his complaint under Article 3 of the Convention in view of the structural nature of the problem of overcrowding of remand detention facilities in Russia. 59. The Government submitted that the conditions of the applicant’s detention had been compatible with the standards set forth in Article 3 of the Convention.", "The Government relied upon excerpts from the remand prison population register and certificates prepared by the administration of the remand prison in August 2010. The Government also considered that the applicant had an effective remedy in respect of his grievances under Article 3 of the Convention. He had lodged a civil action seeking damages resulting from his detention in the remand prison. His claims were duly considered and granted in part by domestic courts at two levels of jurisdiction which fact showed the accessibility and efficiency of the remedy. 2.", "The Court’s assessment (a) Article 3 of the Convention 60. For an overview of the general principles, see the Court’s judgment in the case of Ananyev (Ananyev, cited above, §§ 139-59). 61. Turning to the circumstances of the present case, the Court notes that the parties disagreed on most aspects of the conditions of the applicant’s detention. However, where conditions of detention are in dispute, there is no need for the Court to establish the veracity of each and every disputed or contentious point.", "It can find a violation of Article 3 on the basis of any serious allegations which the respondent Government do not dispute (see, mutatis mutandis, Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009). 62. In the present case, the Government provided excerpts from the original remand prison population register and certificates prepared by the remand prison administration in 2010. The Court further notes that the applicant’s complaints concerning the conditions of his pre-trial detention were, in fact, examined by domestic courts at two levels of jurisdiction (see paragraphs 33-37 above).", "The national judicial authorities established that the remand prison had been overcrowded during the period in question. They further found that the personal space afforded to the applicant had been below statutory standards, he had not been provided with an individual sleeping place and the toilet had offered no privacy. The Government did not proffer any explanation for the discrepancy between the domestic courts’ findings and the data contained in their observations, on which they based their argument that the personal space afforded to the applicant had been in compliance with the statutory requirement of 4 square metres per person. 63. Having regard to the principles cited above and the fact that the Government did not submit any convincing explanation as to the discrepancies in the materials submitted, the Court accepts as credible the applicant’s submissions that the cells in the remand prison where he was detained were overcrowded and he was not at all times provided with an individual bed.", "64. In the Court’s opinion, such conditions of detention must have caused the applicant considerable mental and physical suffering diminishing his human dignity, which amounted to degrading treatment within the meaning of Article 3 of the Convention. 65. The Court takes cognisance of the fact that in the present case there is no indication that there was a positive intention on the part of the authorities to humiliate or debase the applicant, but reiterates that, irrespective of the reasons for the overcrowding, it is incumbent on the respondent Government to organise their custodial system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006, and Benediktov v. Russia, no.", "106/02, § 37,10 May 2007). Accordingly, the Court finds that there has been a violation of Article 3 of the Convention on account of the inhuman and degrading conditions of the applicant’s detention in remand prison no. IZ-44/1 in Kostroma from 21 October 2005 to 3 April 2007. 66. 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 during the period in question.", "(b) Article 13 of the Convention 67. The Court takes note of its earlier findings (see paragraphs 51‑53 above), and concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law enabling the applicant to complain about the conditions of his detention in the remand prison. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 68. The applicant complained that he had been detained pending investigation and trial in the absence of sufficient reasons.", "He relied on Article 5 of the Convention which reads, in so far as relevant, as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 69. The Government contested that argument. They submitted that the applicant had not appealed against the detention orders.", "They further argued that the applicant’s pre-trial detention had been based on relevant and sufficient reasons. He had been charged with very serious offences. If released, he could have put pressure on K. and S, or, in view of his prior criminal record, he could have continued criminal activities or otherwise interfered with administration of justice. 70. As regards the Government’s comment that he had failed to appeal against the detention orders, the applicant pointed out that on 24 October 2006 he had appealed against the extension of his pre-trial detention, thus providing an appeal court with an opportunity to review the reasonableness of his pre-trial detention.", "He further submitted that the reasons furnished by the domestic courts for his detention pending criminal proceedings against him had not been based on any factual evidence. The domestic judicial authorities had never discussed the Government’s allegations that the applicant should have remained in custody in view of the threats he had made to K. or S. In any event, once all the witnesses had been questioned, the risk that the applicant might have put pressure on them had been non-existent. Lastly, at no time had the domestic courts considered the imposition of alternative measures of restraint to ensure the applicant’s presence during the trial. A. Admissibility 71. In so far as the Government may be understood to suggest that the applicant had failed to exhaust effective domestic remedies in respect of his complaint about the length of the pre-trial detention in that he had not appealed against certain detention orders, 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 (see Pshevecherskiy v. Russia, no. 28957/02, § 50, 24 May 2007). 72. Following the arrest on 11 October 2005 the applicant remained in custody until his conviction on 7 February 2007.", "It is not disputed that he did not lodge any appeals against the District Court’s decisions prior to 24 October 2006. On that date, however, he did challenge the District Court’s decision before the Regional Court. On 30 November 2006 the Regional Court reviewed the lawfulness and reasonableness of the entire period of the applicant’s pre-trial detention, upholding the decision of 24 October 2006 on appeal (see paragraph 17). 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 24 October 2006 (see Shcheglyuk v. Russia, no. 7649/02, § 36, 14 December 2006).", "73. The Court further notes that 30 November 2006 was the only date on which the appeal court examined the issue of the applicant’s continued detention. The applicant did not challenge the subsequent court order of 14 December 2006 extending his detention until 27 March 2007. 74. The Court reiterates that the question of exhaustion of domestic remedies in respect of the extension order of 14 December 2006 will only arise if the examination of the reasons given by the domestic court would 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 pre-trial detention is found to have exceeded a reasonable time on the most recent date on which an appeal court examined the detention matter, any detention after that date will also be found, except in extraordinary circumstances, to have necessarily kept that character throughout the time for which it was continued (see Stögmüller v. Austria, 10 November 1969, § 9, Series A no. 9). 75. The Court thus considers that the issue of exhaustion of domestic remedies in respect of the applicant’s detention after 14 December 2006 is closely linked to the merits of the complaint that his detention before that date 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 complaint in respect of his detention pending investigation and trial before 14 December 2006.", "76. 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. B. Merits 1.", "General principles 77. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a necessary condition for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no.", "26772/95, §§ 152-53, ECHR 2000‑IV). 78. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to ensure his release once the continuation of his detention has ceased to be reasonable.", "A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30-32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006‑X; Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8).", "79. It is incumbent on the domestic authorities to establish the existence of specific 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, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001).", "The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions ordering extensions of detention or dismissing applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities who ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the matters of fact 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 Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). 2.", "Application to the present case 80. Having regard to its findings in paragraphs 74 and 75 above, the Court will firstly examine the period of the applicant’s pre-trial detention from 11 October 2005 – the date of his arrest – to 14 December 2006. 81. The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had caused N.’s death. However, with the passage of time that ground inevitably became less and less relevant.", "Accordingly, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see Labita, cited above, §§ 152 and 153). 82. When extending the applicant’s pre-trial detention, the domestic court referred to the gravity of the charges against him and his prior criminal record. It noted that he might continue his criminal activity, abscond, put pressure on witnesses or otherwise interfere with the administration of justice. 83.", "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 the accused’s liberty cannot be assessed from a purely abstract point of view, only taking into consideration 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, cited above, § 81).", "84. In so far as the danger of reoffending is concerned, the Court has repeatedly held that reference to a person’s prior record cannot suffice to justify refusal of release (see, among other authorities, Muller v. France, 17 March 1997, § 44, Reports of Judgments and Decisions 1997‑II). The Court notes in this respect that at no time did the domestic court, when extending the applicant’s detention, mention the nature or the number of the applicant’s prior offences. In such circumstances, the Court cannot accept that the national courts could have reasonably feared that the applicant would commit new offences, if released (see, by contrast, Toth v. Austria, 12 December 1991, § 70, Series A no. 224).", "85. As regards the existence of a risk of absconding, the Court reiterates that such a danger 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 danger 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). The Court notes that the domestic authorities considered that the applicant might abscond due to his lack of employment and/or absence for the registered place of residence. The Court might accept the grounds cited by the authorities as relevant.", "However, it cannot find them decisive given that the judicial decisions authorising the applicant’s continued detention remained silent as to why such risk of absconding could not have been offset by any other means of ensuring his appearance at trial. 86. Lastly, the Court emphasises that when deciding whether a person should be released or detained, the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005, and Jabłoński, cited above, § 83). In the present case, during the entire period of the applicant’s detention, the authorities did not consider the possibility of ensuring his attendance by the use of other “preventive measures”.", "At no point in the proceedings did the domestic courts explain in their decisions why alternatives to the deprivation of the applicant’s liberty would not have ensured that the trial would follow its proper course. 87. 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 basis of the gravity of the charges and using formulaic reasoning without addressing the specific facts of the case or considering alternative preventive measures (see Belevitskiy v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007; Khudobin v. Russia, no. 59696/00, §§ 106 et seq., ECHR 2006-XII; Mamedova v. Russia, no.", "7064/05, §§ 72 et seq., 1 June 2006; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; and Idalov v. Russia [GC], no.", "5826/03, §§ 142-49, 22 May 2012). 88. Having regard to the above, the Court considers that by failing to address sufficiently the specific facts of the case or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify its duration. 89. Nor can the Court conclude that after 14 December 2006 the character of the applicant’s continued detention changed.", "It is hence not necessary to examine whether the applicant exhausted domestic remedies in respect of his complaint related to his detention after that date. 90. The Court, accordingly, finds that there has been a violation of Article 5 § 3 of the Convention. III. ALLEGATION OF HINDRANCE IN THE EXERCISE OF THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION 91.", "The applicant further complained that on 17 October 2007 the administration of correctional colony no. IK-7, where he was serving a prison sentence, had failed to dispatch his application form to the Court. He relied on Articles 8 and 34 of the Convention. The Court will examine the complaint under Article 34 of the Convention which, in so far as relevant, reads as follows: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 92.", "The Government contested that argument. They submitted that the applicant had been able to freely contact any state bodies by post. In particular, on 18 September 2007 he had submitted a sealed envelope addressed to the Court. His letter had been dispatched by the administration of the colony that same day. 93.", "The applicant did not dispute that his letter containing a completed application form had been accepted by the administration of the correctional colony and registered accordingly in the outgoing correspondence log. In his opinion, however, the Government had failed to demonstrate that the letter had actually left the premises of the colony and been transferred to a post office. 94. The Court considers that the fact that one of the applicant’s letters addressed to the Court never reached it is insufficient to suggest that there was a deliberate intent on the part of the authorities to hinder the applicant in the exercise of the right of individual petition. Nor can it suggest that there was a serious malfunctioning of the postal service that could indisputably be said to constitute such hindrance.", "95. Accordingly, the Court concludes that there has been no hindrance to the applicant’s right of individual petition. It therefore cannot find that the Government failed to comply with their obligations set out in Article 34 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 96.", "Lastly, the applicant alleged that he had been subjected to ill‑treatment in police custody. He also complained of numerous irregularities in the investigation and trial. He referred to Articles 3, 5 and 6 of the Convention. 97. Having regard to all the material in its possession and in so far as it falls within its competence, the Court finds that the evidence before it, in respect of these complaints, discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 99. The applicant claimed 1,250,000 euros (EUR) in respect of non‑pecuniary damage.", "100. The Government considered the applicant’s claim excessive and unsubstantiated. 101. The Court considers 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.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage. B. Costs and expenses 102. The applicant did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head.", "C. Default interest 103. 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 length of his detention but finds that it is not necessary to examine this issue further; 2. Declares the complaints concerning the conditions of the applicant’s detention in remand prison no.", "IZ-44/1 in Kostroma and the alleged lack of an effective remedy in this respect as well as the complaint concerning the length of his detention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no. IZ-44/1 in Kostroma from 21 October 2005 to 3 April 2007; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds that there has been a violation of Article 5 § 3 of the Convention; 6.", "Holds that the State has not failed to meet its obligation under Article 34 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five 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; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachIsabelle Berro-Lefèvre Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF CZARNOWSKI v. POLAND (Application no. 28586/03) JUDGMENT This version was rectified on 4 June 2009 under Rule 81 of the Rules of Court STRASBOURG 20 January 2009 FINAL 20/04/2009 This judgment may be subject to editorial revision. In the case of Czarnowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 16 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28586/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Edward Czarnowski (“the applicant”), on 18 August 2003.", "2. The Polish Government (“the Government”) were represented by their Agent Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. In addition, third-party comments were received from the Helsinki Foundation for Human Rights (Warsaw, Poland), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 4.", "The applicant alleged that the refusal to allow him to attend the funeral of his father was in breach of Article 8 of the Convention. 5. On 6 July 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and lives in Siemirowice. 7. On 7 April 2000 the Wejherowo District Court (Sąd Rejonowy) convicted the applicant of domestic violence and sentenced him to a one‑year period of imprisonment suspended on probation for 4 years. The court found that between June 1998 and October 1999 the applicant had ill‑treated his girlfriend in that he had beaten her and abused her verbally.", "8. It appears that the applicant breached the terms of his probation and on 20 September 2002 the Wejherowo District Court ordered that his sentence be enforced. On 2 April 2003 he started to serve it in the Wejherowo Detention Centre. 9. On 18 July 2003 the applicant’s father died.", "The applicant submits that he immediately asked the prison authorities for leave to attend his father’s funeral. On 20 July the applicant’s girlfriend delivered him his father’s death certificate. 10. On 21 July 2003, a Monday, the applicant made a formal application for leave to attend the funeral, which was to be held on 22 July 2003. 11.", "On 21 July 2003 the Penitentiary Judge of the Gdańsk Regional Court (Sędzia Sądu Okręgowego Wydziału Penitencjarnego) refused the leave request. The reasons given for the judge’s decision were as follows: “The convicted person’s application cannot be allowed. The grounds relied on [by the applicant] to justify allowing him to leave the prison cannot be considered especially important. Consequently, since the conditions specified in Article 141 § 4 of [the Code of Execution of Criminal Sentences] had not been fulfilled, it has been decided as above.” 12. The decision also included an instruction on the possibility to lodge an appeal against the decision with the Gdańsk Penitentiary Court within 7 days of the date of notification of the decision.", "13. The decision was notified to the applicant on 22 July 2003. The applicant did not appeal against it as the funeral had already taken place and he considered that his request to leave prison had become without purpose. II. RELEVANT DOMESTIC LAW 14.", "Article 141 § 4 of the 1997 Code of Execution of Criminal Sentences, as in force at the material time, read as follows: “In cases which are especially important for a convicted person, he or she may be granted permission to leave prison for a period not exceeding 5 days, if necessary under the escort of prison officers or other responsible persons (osoby godnej zaufania). As regards convicted persons detained in closed prison facilities such leave may be granted by a Penitentiary Judge and in urgent cases by the Director of the Prison.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 15. The applicant complained that the refusal to grant him compassionate leave from prison for the purpose of attending the funeral of his father amounted to a 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.” 16. The Government contested that argument. A. Admissibility 17. The Government raised a preliminary objection submitting that the applicant had failed to exhaust domestic remedies.", "They maintained, firstly, that it had been open to the applicant to appeal against the decision of 21 July 2003. Secondly, the Government argued that the applicant should have brought an action under Article 24 in conjunction with Article 448 of the Civil Code. These provisions would have allowed him to assert that by failing to grant him leave from prison the authorities had breached his personal rights protected by the Civil Code and claim non-pecuniary damages. 18. The applicant did not comment on this matter.", "19. The Court observes that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).", "20. The Court notes that the Government’s objection that the applicant should have lodged civil proceedings for compensation for breach of his personal rights is confined to a mere assertion and there are no further arguments or domestic court decisions indicating that, at the relevant time, recourse to such an action in the circumstances of the applicant’s case would have offered any reasonable prospects of success. Secondly, the Court sees no reason to conclude that an appeal against the decision of 21 July 2003[1], notified to the applicant on the day of the funeral, could be considered an effective remedy capable of offering him redress in respect of his complaint. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 21.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ arguments 22. The applicant complained that the authorities’ refusal to grant him permission to leave the prison in order to attend his father’s funeral caused him suffering and humiliation. He submitted that he had already served over 3 months of his one-year prison sentence. During his detention he had often been commended on his good behaviour and had remained in contact with his family and relatives. The applicant maintained that those circumstances should have been taken into consideration when deciding on whether to grant him leave to attend his father’s funeral.", "23. The Government submitted that the applicant had been convicted of domestic violence and subsequently breached the terms of his probation. Moreover, another set of proceedings was pending against the applicant in which he had been charged with driving while under the influence of alcohol. The Government also submitted that the applicant had lodged his request late, only on 21 July 2003 although he had learned about his father’s death on 20 July 2003. This had left the authorities only limited time to deal with it.", "Finally, the Government submitted that following the applicant’s request the Director of the Prison had issued an opinion proposing that he should not be granted leave. The Government stated: “the Director pointed out that the applicant had a negative criminal and social forecast”. 2. Helsinki Foundation for Human Rights 24. The Third Party underlined the importance of temporary leave for the process of the re-socialisation of prisoners and referred to the Council of Europe recommendations in this regard.", "They pointed to several shortcomings in the application of the legal regulations governing compassionate leave from prisons. Firstly, the wording of the domestic law left wide discretion to the State particularly as regards the classification as to what circumstances could be regarded as “especially important”. Moreover, the authorities usually provided very limited reasoning for their decisions so that prisoners were not sufficiently informed of the reasons for the refusals. They submitted that a prisoner should not be obliged to produce a formal death certificate as it normally took time and delayed the procedure while other arrangements could be made for the authorities to confirm the prisoner’s assertion and a certificate could be delivered at a later stage. Moreover, there should be a right to an expeditious appeal against a decision of the Penitentiary Judge as the 7-day time-limit could not be considered adequate in cases characterised by urgency.", "3. The Court’s assessment 25. The Court observes that any interference with an individual’s right to respect for his private and family life will constitute a breach of Article 8, unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see, among other authorities, Elsholz v. Germany [GC], no. 25735/94, § 45, ECHR 2000-VIII). 26.", "The Court observes that Article 8 of the Convention does not guarantee a detained person an unconditional right to leave prison in order to attend the funeral of a relative. It is up to the domestic authorities to assess each request on its merits. Its scrutiny is limited to consideration of the impugned measures in the context of the applicant’s Convention rights, taking into account the margin of appreciation left to the Contracting States (see Płoski v. Poland, no. 26761/95, § 38, 12 November 2002). The Court emphasises that, even if a detainee by the very nature of his situation must be subjected to various limitations of his rights and freedoms, every such limitation must nevertheless be justifiable as necessary in a democratic society.", "It is the duty of the State to demonstrate that such necessity really existed (ibid § 35). 27. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aims pursued. In determining whether an interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the Contracting States. Furthermore, the Court cannot confine itself to considering the impugned facts in isolation, but must apply an objective standard and look at them in the light of the case as a whole (see, among other authorities, Matter v. Slovakia, no.", "31534/96, § 66, 5 July 1999). 28. Turning to the circumstances of the present case the Court firstly notes that the Government failed to submit any arguments relating to the existence of the interference, its lawfulness and the aim pursued. In the absence of the parties’ comments the Court considers that the refusal to allow the applicant to attend his father’s funeral constituted an interference with his right to respect for his private and family life. The interference, which was based on Article 141 § 4 of the 1997 Code of Execution of Criminal Sentences, was “in accordance with the law” and could be considered to be in the interests of “public safety” or “for the prevention of disorder or crime”.", "29. Looking at the circumstances of the events in question in the light of the case as a whole, and taking into account the margin of appreciation left to the respondent State, the Court observes that the applicant was serving a one year prison term. The applicant had been convicted of domestic violence, his term of imprisonment had been originally suspended in favour of probation, and there is no indication that he was a dangerous criminal or that he had acted in an organised criminal gang. There is no appearance that the applicant had ever previously been convicted or detained; although the Government submitted that he had been simultaneously involved in another set of criminal proceedings for driving while under the influence of alcohol, they failed to inform the Court if he had been convicted of the offence. The applicant was thus not a habitual offender whose return to prison could not be guaranteed.", "In particular, there is no evidence that after the courts decided to enforce his suspended sentence the applicant had failed to report to the prison or attempted to avoid the penalty. At the time of the events in question, on 22 July 2003, the applicant had already served almost four months of his sentence. Thus, the Prison Director’s negative recommendation regarding the applicant’s request referred to by the Government does not seem to be supported by facts. 30. Furthermore, the Court considers that the domestic authorities dismissed his application for leave from prison without giving any meritorious reasons for their assessment that the applicant’s situation was not “especially important” (see paragraph 11 above).", "In the absence of such grounds it is difficult for the Court to understand the reasons for which the Penitentiary Judge dismissed the applicant’s request. The decision gave no considerations to other measures expressly provided for by law which could have facilitated and secured the applicant’s stay outside the prison such as the possibility of escorted leave (see Płoski, cited above, § 36). Finally, it is regrettable that Penitentiary Judge’s decision did not take into account the above-mentioned Płoski judgment, in which the Court several months earlier had found a violation of Article 8 of the Convention in circumstances very similar to those in the instant case. 31. Finally, the Court notes that the Government submitted that the applicant made his request to the domestic authorities late, only on 21 July 2003[2], whereas he had learned about his father’s death on 20 July 2003[3].", "However, it appears from the facts of the case that the applicant obtained a formal death certificate on 20 July 2003[4], which was a Sunday. He lodged a formal request on the next day, a Monday, and the Penitentiary Judge was able to issue his decision on the same day, thus before the date of the funeral. The Court does not consider that the applicant was negligent in submitting his request. 32. The Court is aware of the problems of a financial and logistical nature caused by escorted leaves including the shortage of police and prison officers.", "However, taking into account the seriousness of what was at stake, namely refusing an individual the right to attend the funeral of his parent, the Court is of the view that the respondent State could have refused attendance only if there had been compelling reasons and if no alternative solution – like escorted leave – could have been found (ibid § 37). 33. The Court concludes that, in the particular circumstances of the present case, and notwithstanding the margin of appreciation left to the respondent State, the refusal of leave to attend the funeral of the applicant’s father, was not “necessary in a democratic society” as it did not correspond to a pressing social need and was not proportionate to the legitimate aims pursued. There has therefore been a violation of Article 8 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.” 35. The applicant did not submit a claim for just satisfaction. 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. Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident [1] Rectified on 4 June 2009: “21 June 2003” was changed to read “21 July 2003”. [2] Rectified on 4 June 2009: “21 June 2003” was changed to read “21 July 2003”. [3] Rectified on 4 June 2009: “21 June 2003” was changed to read “21 July 2003”.", "[4] Rectified on 4 June 2009: “20 June 2003” was changed to read “20 July 2003”." ]

[ "SECOND SECTION CASE OF KULCSÁR v. HUNGARY (Application no. 22434/08) JUDGMENT STRASBOURG 25 March 2014 This judgment is final but it may be subject to editorial revision. In the case of Kulcsár v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Helen Keller, President,András Sajó,Egidijus Kūris, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 4 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22434/08) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Csaba Kulcsár (“the applicant”), on 15 May 2008.", "2. The applicant was represented by Mr I. Barbalics, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3. On 26 October 2012 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in Debrecen. 5. The applicant was party as creditor to liquidation proceedings which started before the Hajdú-Bihar-County County Regional Court on 12 March 1999. The case was terminated by the Debrecen Court of Appeal on 24 October 2007 (service: 29 November 2007).", "THE LAW 6. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. 7. The Government contested that argument. 8.", "The period to be taken into consideration began on 12 March 1999 and ended on 29 November 2007. It thus lasted almost eight years and eight months for two levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible. 9. 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). 10. 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.", "11. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant also complained about the decisions of the courts given in the liquidation proceedings. 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, 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, there is no appearance that the courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary. Moreover, as to Article 1 of Protocol No. 1, the Court notes that the domestic courts adjudicated a case of liquidation, in which both the applicant, a creditor, and the debtor were private entities.", "The court decisions, free of any appearance of arbitrariness, cannot be regarded as constituting an interference with the applicant’s property rights. 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. 12. Relying on Article 41 of the Convention, the applicant claimed 65,900 euros (EUR) in respect of pecuniary damage and EUR 6,600 in respect of non-pecuniary damage. 13.", "The Government contested these claims. 14. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards him EUR 3,600 under that head.", "15. The applicant also claimed EUR 2,170 for the costs and expenses incurred before the Court, billable by his lawyer. 16. The Government contested the claim. 17.", "Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant, who was represented by a lawyer, the sum of EUR 1,000 under this head. 18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithHelen KellerRegistrarPresident" ]

[ "FIFTH SECTION CASE OF MUSIYENKO v. UKRAINE (Application no. 26976/06) JUDGMENT STRASBOURG 20 January 2011 This judgment is final but it may be subject to editorial revision. In the case of Musiyenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Rait Maruste, President,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 14 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 26976/06) 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 Oleksandr Ivanovych Musiyenko (“the applicant”), on 20 June 2006.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. On 24 June 2009 the Court 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 1938 and lives in Dzerzhynsk. 5. On an unspecified date in April 1999 the applicant lodged a claim against the State Company “Dzerzhynskvugillia” (“the company”, Державне Підприємство «Дзержинськвугілля»).", "In particular, he claimed damages for a discrepancy in the calculations of compensation for a professional illness. On 5 April 1999 the Dzerzhynsk City Court (“the City Court”) opened proceedings on the applicant’s claim. 6. On 6 December 1999 the City Court warned the company of a penalty for its failures to appear before the court. 7.", "On 15 January 2002 the applicant lodged a new claim with the City Court against the company seeking indexation of his salary. 8. Having been joined on 2 December 2002, the claims were dismissed by the City Court on 1 July 2004. 9. In the meantime, the applicant had modified his claims four times and the Dzerzhynsk City Department of the State Insurance Fund for Industrial Accidents and Diseases joined the proceedings as a second defendant.", "Between 7 February 2000 and 30 May 2002, the Court of Appeal quashed four first-instance judgments and ordered fresh hearings. 10. On 10 February 2005 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 1 July 2004 in part related to the compensation of a professional illness. The court, out of UAH 6,028 (EUR 844[1]) claimed by the applicant for pecuniary and UAH 50,000 (EUR 7,000) for non-pecuniary damage, awarded the applicant UAH 177 (EUR 25). The applicant appealed in cassation.", "11. On 4 June 2007 the Supreme Court, according to the Judicial System Act (as amended on 22 February 2007), transmitted the applicant’s appeal to the Kyiv Court of Appeal which, on 9 October 2007, finally upheld the decisions of 1 July 2004 and 10 February 2005. 12. In the course of the proceedings, two expert examinations were ordered and a number of procedural rulings were adopted. During the same period of time, the applicant filed nine procedural requests and eleven appeals, two of which did not meet procedural requirements.", "13. According to the Government, of the seventy one hearings scheduled between 5 April 1999 and 9 October 2007, nineteen were adjourned due to the company representative’s failure to attend, eleven were adjourned at request of one or both defendants, six were adjourned at the applicant’s request, four were adjourned owing to the presiding judge’s sickness or absence, one was adjourned due to both parties’ failure to attend, and two were adjourned for other reasons beyond the parties’ control. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 15.", "The Government contested that argument. 16. The period to be taken into consideration began on 5 April 1999 and ended on 9 October 2007. It thus lasted more than eight years and six months for three level of jurisdiction. A. Admissibility 17.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 18.", "The Government maintained that the proceedings had been complex in that the applicant had repeatedly recalculated damages, his additional action had had to be joined to the original one and the expert examinations had had to be ordered. In their view, the applicant had contributed to the length of the proceedings by having filed a number of the procedural requests and appeals, and, together with the defendants, had been responsible for the protracted length of the proceedings. According to the Government, there had been no significant periods of inactivity attributable to the domestic courts. 19. The applicant disagreed.", "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, e.g., Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 21. Turning to the present case, the Court notes that the applicant pursued his action claiming recalculation of the compensation arising from his professional illness and ensuing damages.", "The proceedings were therefore of some importance for him. Nonetheless, the Court does not find any ground for the domestic courts to deal with this case with particular urgency vis-à-vis other cases pending before them. 22. The Court further observes that the case was to some extent complicated by four subsequent recalculations of the damages claimed by the applicant and the fact that he submitted a new action which was joined to the original one. Moreover, the domestic courts had to establish whether the applicant sustained any pecuniary and non-pecuniary damage and, if so, to calculate the amount of the compensation to be paid.", "Even if the case was also complicated by the fact that the domestic courts had to order two expert examinations, the Court concludes that the subject matter of the litigation cannot be considered particularly complex. 23. With regard to the applicant’s conduct, the Court accepts the Government’s argument that there were certain delays attributable to the applicant (see paragraphs 13 and 14 above): he requested the adjournment of six hearings, failed to appear at one hearing and lodged two appeals that did not meet procedural requirements. However, in respect of his procedural requests and properly filed appeals, the Court notes that he merely exercised his procedural rights and cannot be blamed for using the avenues available to him under the domestic law in order to protect his interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006).", "24. As regards the Government’s contention that they were not responsible for the delays caused by the defendants, the Court observes that it is for the domestic authorities to constrain the abusive and dilatory conduct of a party to civil proceedings. In fact, one of the defendant’s failure to attend court hearings on a number of occasions significantly protracted the proceedings (see paragraph 13 above). Although the courts were sufficiently equipped for ensuring the defendant’s presence in the courtroom or to consider the case in its absence, there is no indication whether the measures they took sped up the proceedings in any way (see, mutatis mutandis, Smirnova v. Ukraine, no. 36655/02, §§ 53 and 69, 8 November 2005).", "Therefore, this cannot be considered as exonerating the respondent State as regards one of the defendant’s conduct. 25. As to the conduct of the courts, the Court notes that the main delays in the proceedings were caused by the four consecutive remittals of the applicant’s case for re-examination (see paragraph 9 above). It recalls in this respect that since the remittal of cases 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 deficiencies in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).", "26. The Court also finds lacking due diligence the fact that the examination of the applicant’s appeal in cassation lasted one year and eight months, while it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective. 27. 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. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. OTHER COMPLAINTS 28. The applicant further complained under Articles 6 § 1 and 13 of the Convention in respect of the courts’ assessment of evidence and interpretation of the national law and challenged the outcome of the proceedings.", "He also alleged a violation of Articles 2, 5, 7 and 34 of the Convention and Article 1 of Protocol No. 1, Article 3 of Protocol No. 4 without any further specification. 29. 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.", "30. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 EUR 556 in respect of pecuniary and EUR 19,413 in respect of non-pecuniary damage. 33. The Government contested these claims. 34.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage which cannot be sufficiently compensated by the sole finding of a violation. Making its assessment on an equitable basis and having regard to the particular circumstances of the case, the Court awards the applicant EUR 1,100 under that head. B. Costs and expenses 35.", "The applicant also claimed EUR 25 for the costs and expenses incurred before the domestic courts. 36. The Government contested the claim. 37. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings as there is no indication that they were necessarily incurred. C. Default interest 38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning 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 in respect of the length of the proceedings; 3. Holds (a) that the respondent State is to pay the applicant, within three months EUR 1,100 (one thousand one hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into the national 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy RegistrarPresident [1]1.", "1 UAH = 0.14 EUR." ]

[ "THIRD SECTION CASE OF HOVHANNISYAN AND SHIROYAN v. ARMENIA (Application no. 5065/06) JUDGMENT (merits) STRASBOURG 20 July 2010 FINAL 20/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hovhannisyan and Shiroyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Boštjan M. Zupančič,Alvina Gyulumyan,Ineta Ziemele,Luis López Guerra,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 29 June 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5065/06) 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 three Armenian nationals, Mr Hovhannes Hovhannisyan, Ms Astghik Hovhannisyan and Ms Diana Shiroyan (“the applicants”), on 17 January 2006. 2. The applicants were represented by Mr V. Grigoryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.", "On 3 September 2007 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 4. The applicants were born in 1976, 1973 and 1999 respectively and live in Yerevan.", "5. According to the applicants, they enjoyed a right of use of accommodation in respect of 33.8 sq. m of a flat which in total measured 66.8 sq. m. and was situated at 17 Byuzand Street, Yerevan. It appears that the flat was owned by their family member, K.H.", "The Government contested this allegation and claimed that only the applicants Hovhannes Hovhannisyan and Astghik Hovhannisyan (“the first applicant” and “the second applicant”) enjoyed such a right, while the applicant Diana Shiroyan (“the third applicant”), who was a minor, was only entitled to live in the flat in question. 6. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.", "7. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Vizkon Ltd. 8. On 1 October 2004 Vizkon Ltd and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 9. By a letter of 25 February 2005 Vizkon Ltd informed the first and second applicants that the flat in question was situated within the expropriation zone of the Main Avenue area and was to be taken for State needs.", "Each applicant was offered a total of the Armenian dram (AMD) equivalent of 3,500 United States dollars (USD) as financial assistance, pursuant to paragraphs 7(c) and 8(e) of the compensation procedure approved by Government Decree no. 950 of 5 October 2001 (see paragraphs 26 and 27 below; hereafter, “the compensation procedure”). 10. It appears that the first and second applicants did not accept this offer. 11.", "On an unspecified date, Vizkon Ltd instituted proceedings against the first and second applicants on behalf of the State, seeking to terminate their right of use through payment of financial assistance and to evict all the applicants with reference to, inter alia, Articles 218 and 220 of the Civil Code. The plaintiff claimed that persons enjoying a right of use were entitled, pursuant to paragraph 8 of the compensation procedure, to receive assistance in the Armenian dram equivalent of USD 3,500. 12. It appears that in the course of the court proceedings Vizkon Ltd offered the same amount of compensation also to the third applicant, since she was also registered at the flat in question. The third applicant joined the proceedings as a co-defendant.", "13. On 2 March 2005 a contract was signed between Vizkon Ltd and the owner of the flat, K.H., according to which she agreed to cede the flat to the State in exchange for another flat. It appears that two other persons who also enjoyed a right of use in respect of the same flat accepted the price offers made to them and gave up their rights. 14. On 16 March 2005 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the claim of Vizkon Ltd, terminating the applicants' right of use and awarding them a total of the Armenian dram equivalent of USD 10,500 as compensation.", "In doing so, the court referred to Article 218 §§ 1 and 2 and Article 220 § 1 of the Civil Code, as well as paragraph 10 of the compensation procedure. 15. On 31 March 2005 the applicants lodged an appeal. 16. On 3 June 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Vizkon Ltd on the same grounds as the District Court.", "17. On 16 June 2005 another contract was signed between Vizkon Ltd and the owner of the flat, K.H., similar to that of 2 March 2005. 18. On 21 June 2005 the applicants lodged an appeal on points of law which they supplemented on 15 July 2005. 19.", "On 24 June 2005 the State's ownership in respect of the flat was formally registered on the basis of the contract of 16 June 2005. 20. On 18 July 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants' appeal. II. RELEVANT DOMESTIC LAW A.", "The domestic provisions related to the right of use of accommodation 21. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23 and 34-43, 23 June 2009). B. Other relevant domestic provisions 1.", "The Civil Code (as in force at the material time) 22. According to Article 135, the right of ownership and other property rights in respect of immovable property, their limitations, origin, transfer and termination are subject to State registration. 23. According to Article 176, in cases when a right in respect of property is subject to State registration, the acquirer's right of ownership arises from the moment of such registration. 24.", "Article 218 §§ 1 and 2 provided that a plot of land might be taken from the owner for the needs of the State or the community by compensating its value. Depending on for whose needs a plot of land was to be taken, its value was to be compensated by either the State or the community. The decision to take a plot of land for the needs of the State or the community was to be taken by a public authority. 25. Article 220 § 1 provided that, if no agreement could be reached with the owner of the plot of land to be taken for State needs concerning the amount or other conditions of compensation, the relevant public authority might institute court proceedings seeking to take the plot of land.", "2. Government Decree no. 950 of 5 October 2001 Approving the Procedure for Purchasing, Taking, Fixing the Price Offer and Realising the Plots of Land and Immovable Property Situated in the Northern Avenue's and Other Expropriation Zones of Yerevan (as in force at the material time) 26. According to paragraph 7(c) of the compensation procedure, persons and their minor children – who were registered, including in unauthorised constructions, prior to the date on which State registration was made (28 August 2001) on the basis of the competent public authority's decision to take the plot of land for the needs of the State – shall each receive assistance in the amount of the Armenian dram equivalent of USD 2,000, based on the document confirming the fact of registration (passport, birth certificate or a certificate provided by the competent authority in charge of the registration). 27.", "According to paragraph 8(e) of the compensation procedure, persons mentioned in Paragraph 7(c) of this Procedure shall receive assistance in the amount of the Armenian dram equivalent of USD 1,500. 28. According to paragraph 10 of the compensation procedure, persons who have acquired a right of use or of lease in accordance with the procedure prescribed by law in respect of a plot of land situated in an expropriation zone shall receive as compensation the assessed value of the right of use or of lease of the given plot of land. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 29. The applicants complained that the deprivation of their possessions was in violation of the guarantees of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A.", "The parties' submissions 30. The Government submitted that the applicants did not have “possessions” within the meaning of Article 1 of Protocol No. 1. At the time of expropriation the sole owner of the flat was the State, as evidenced by the two contracts signed between the State and its former owner, K.H. The applicants, on the other hand, enjoyed only a right of use of accommodation in respect of the flat, which was equal to an entitlement to reside there and could not be considered as “possessions”.", "This right was not absolute and could be terminated under Article 225 of the Civil Code upon request by the owner, which happened in the present case. 31. Furthermore, the third applicant did not enjoy independently even a right of use because she was a minor and enjoyed only the right to live in the house together with her mother – the second applicant – by virtue of Section 16 of the Children's Rights Act. In sum, given that the applicants did not have possessions, their complaint was incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1.", "32. The applicants submitted that all three applicants enjoyed a right of use of accommodation in respect of the flat. This was supported by the evidence in the case and, in particular, the findings of the domestic courts which decided to terminate the right of use of all three applicants. This right was a property right and amounted to a “possession” within the meaning of Article 1 of Protocol No. 1.", "33. The applicants further submitted that the deprivation of their possessions was not carried out under the conditions provided for by law and violated, in particular, the requirements of Article 28 of the Constitution and Article 225 of the Civil Code. The latter provision, in particular, prescribed that a right of use of accommodation could be terminated only upon request of the owner of the flat. However, at the time when the Court of Appeal granted the claim of Vizkon Ltd, namely on 3 June 2005, the flat did not belong to the State yet and was owned solely by K.H. The State's ownership in respect of the flat was registered only on 24 June 2005 and this issue was never even raised during the proceedings before the Court of Cassation.", "34. The applicants finally argued that the deprivation of their possessions did not pursue a legitimate aim in the general interest because it was effected solely for the benefit of a private company, Vizkon Ltd. Moreover, the amount of compensation offered to them was arbitrary and unsubstantiated. B. The Court's assessment 1.", "Admissibility 35. The Court considers that the Government's objection regarding the incompatibility of the applicants' complaint with the provisions of Article 1 of Protocol No. 1 is closely linked to the substance of their complaint under that Article, and should therefore be joined to the merits. 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Whether there was an interference with the applicants' possessions 37. The Court notes that the Government claimed that the applicants did not have “possessions” within the meaning of Article 1 of Protocol No.", "1. The Court points out, however, that it has already found that the right of use of accommodation constituted a “possession” within the meaning of that Article (see Minasyan and Semerjyan v. Armenia, cited above, § 56). 38. As regards specifically the third applicant, the Court observes that the Government's claim has no basis in the findings of the domestic courts, which found that all the applicants enjoyed a right of use of accommodation and decided to terminate that right through payment of compensation. 39.", "The Court concludes that all the applicants in the present case enjoyed a right of use of accommodation in respect of the flat in question and the termination of that right for the purpose of implementing construction projects in the centre of Yerevan amounted to an interference with the applicants' peaceful enjoyment of their possessions in the form of deprivation of property (ibid., §§ 59 and 61). The Government's objection regarding the incompatibility of the applicants' complaint with the provisions of Article 1 of Protocol No. 1 must therefore be dismissed. (b) Whether the interference with the applicants' possessions was justified 40. The Court reiterates that the first and most important requirement of Article 1 of Protocol No.", "1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 79, ECHR 2000-XII). 41. The Court further reiterates that the phrase “subject to the conditions provided for by law” requires in the first place the existence of and compliance with adequately accessible and sufficiently precise and foreseeable domestic legal provisions (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 110, Series A no.", "102; Hentrich v. France, 22 September 1994, § 42, Series A no. 296-A; and Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000-I). 42. The Court notes that it has previously examined a complaint concerning the termination of the right of use by the authorities for the purpose of implementation of construction projects in the centre of Yerevan and found that such interference with the applicant's possessions – with reliance on Article 225 of the Civil Code – was arbitrary and unlawful (see Minasyan and Semerjyan, cited above, § 75-76).", "In the present case, the Government alleged that the applicants' right of use was terminated similarly on the basis of Article 225 and with full respect for the requirements of that Article, since the State was the owner of the flat in question at the material time and it was entitled under that Article to have the applicants' right of use terminated through payment of adequate compensation. 43. The Court notes, however, that the State acquired ownership of the flat, pursuant to Articles 135 and 176 of the Civil Code, only on 24 June 2005, when its right of ownership was formally registered (see paragraph 19 above). Thus, at the time when Vizkon Ltd instituted proceedings against the applicants seeking to terminate their right of use, and when the District Court and the Court of Appeal decided on the merits of that claim, namely on 16 March and 3 June 2005 respectively, the sole owner of the flat was a third person, K.H. It is true that a contract had been signed between K.H.", "and Vizkon Ltd before the merits of the above claim was determined by the District Court and the Court of Appeal (see paragraph 13 above). However, it appears that there was no follow-up to that agreement and that the State's ownership was formally registered only after a second contract was signed between the same parties following the Court of Appeal's judgment (see paragraphs 16, 17 and 19 above). Furthermore, the examination of the case in the Court of Cassation, which took place after the State had already acquired the right of ownership, was limited only to points of law and did not even touch upon this issue. 44. In any event, the Court notes that neither the plaintiff nor the courts relied on Article 225 of the Civil Code when asking and deciding to terminate the applicants' right of use.", "In fact, this was done with reference to the provisions of the Civil Code, namely Articles 218 and 220, which regulated the question of forced expropriation of land. Thus, the Government's allegation that the applicants' right of use was lawfully terminated under Article 225 of the Civil Code is not supported by the circumstances of the case. 45. The Court observes that, as already indicated above, the applicants' right of use in respect of the flat was terminated by the courts with reference to Articles 218 and 220 of the Civil Code. The Court notes, however, that these Articles spoke solely of the possibility of terminating the right of ownership in respect of land and contained no mention whatsoever of terminating the right of use of accommodation (see paragraph 24 and 25 above).", "Thus, it appears that the applicants' right of use was terminated with reliance on legal rules which were not applicable to their case. The Court considers that such termination of their right of use was bound to result in an unforeseeable or arbitrary outcome and must have deprived the applicants of effective protection of their rights. It therefore cannot but describe the interference with the applicants' possessions on such a legal basis as arbitrary and unlawful (see, mutatis mutandis, Minasyan and Semerjyan, cited above, § 75-76). 46. This conclusion makes it unnecessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no.", "52, and Iatridis v. Greece [GC], no. 31107/96, § 62, ECHR 1999-II). 47. There has accordingly been a violation of Article 1 of Protocol No. 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48. The applicants further complained that the deprivation of their possessions amounted also to a violation of Article 8 of the Convention and that the court proceedings were conducted in violation of the fair trial guarantees of Article 6 of the Convention. 49. 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 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. The parties' submissions 1.", "The applicants (a) Damage 51. The applicants alleged that they were unable to obtain any information from public authorities necessary for the effective presentation of their claims for pecuniary damage, because of public officials having economic interests in the construction projects and therefore blocking any access to the relevant official information, namely the information concerning real estate prices in the centre of Yerevan. 52. In view of the above, the applicants argued that the value of their right of use was to be calculated using the method of capitalisation of income and by applying the formula prescribed by the amended Article 225 of the Civil Code. Based on such a calculation, the applicants each claimed AMD 7,560,000 in respect of pecuniary damage which, according to the applicable exchange rate, was equivalent to EUR 16,666.30.", "53. The applicants further claimed EUR 10,000 each in respect of non-pecuniary damage, alleging that they had suffered feelings of frustration and helplessness as a result of unlawful expropriation and becoming homeless. (b) Costs and expenses 54. The first applicant also claimed EUR 100 for postal costs. 2.", "The Government 55. The Government claimed that the formula suggested by the applicants for the calculation of pecuniary damage was not applicable to their case, because the amendments to Article 225 of the Civil Code, which introduced the formula in question, entered into force only on 26 November 2005, that is after the circumstances of the present case. 56. The Government asked the Court to reject the applicants' claims for pecuniary and non-pecuniary damage and costs and expenses, because their rights guaranteed by Article 1 of Protocol No. 1 had not been violated.", "2. The Court's assessment 57. The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Government and the applicants. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join to the merits the Government's objection concerning the incompatibility of the applicants' complaint under Article 1 of Protocol No. 1 with the provisions of that Article and to dismiss it; 2. Declares the complaint concerning the deprivation of the applicants' possessions under Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1; 4. Holds that the question of the application of Article 41 is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicants to submit, within the 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 20 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF COLIBABA v. MOLDOVA (Application no. 29089/06) JUDGMENT STRASBOURG 23 October 2007 FINAL 23/01/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Colibaba 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 2 October 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29089/06) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Vitalie Colibaba (“the applicant”) on 22 June 2006. 2. The applicant was represented by Mr R. Zadoinov, a lawyer practising in Chişinău.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant alleged, in particular, that he had been subjected to severe police brutality while in detention and that the authorities had failed to carry out an adequate investigation into the incident, in breach of Article 3. He also complained under Article 13 of the lack of effective remedies in respect of ill-treatment and under Article 34 of the Convention that he had been hindered by the domestic authorities in bringing his case before the Court. 4.", "On 3 October 2006 the Fourth Section of the Court communicated 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, Mr Vitalie Colibaba, is a Moldovan national who was born in 1978 and lives in Chişinău.", "6. On 21 April 2006 the applicant was arrested on charges of assaulting a police officer. 7. On 25 and 27 April 2006 the applicant was allegedly tortured by police officer I.M. and two other police officers in order to extract a confession from him.", "According to the applicant, his hands and feet were tied together behind his back and a metal bar from a coat hanger was passed under his arms. The metal bar was placed on two chairs and his body was suspended for more than forty minutes. His hands had been covered with cloth so that no traces of rope would remain on them. Loud music was played so that his cries would not be heard. While being suspended in this manner, his head was covered with a coat and he was beaten with a chair on the back of his head.", "These acts of brutality were accompanied by verbal and psychological aggression. The Government contested the allegations of ill-treatment. 8. The same day, after being taken to his cell, the applicant attempted to commit suicide by cutting his veins. However, his attempt was not successful and he was taken to hospital.", "9. On 27 April 2006 the applicant was allowed for the first time to have contact with his lawyer, but only in the presence of police officers. The applicant complained to the lawyer that he had been tortured. 10. According to the applicant, as a retaliatory measure for his complaint to the lawyer, the same evening he was again tortured.", "He was hit on the head with a two-litre plastic bottle full of water and also punched and kicked. The Government disputed these allegations. 11. On 28 April 2006 the applicant's lawyer lodged with the Buiucani prosecutor's office a criminal complaint concerning the alleged ill-treatment of the applicant. 12.", "On 29 April 2006 the applicant was taken by the police officers who had allegedly ill-treated him to the Centre of Forensic Medicine, where he underwent a medical check-up in their presence. His lawyer was not present and, according to the applicant, the medical examination only lasted several minutes and was superficial. 13. The medical report issued by the Centre of Forensic Medicine was dated 28 April 2006 and concluded that besides the injury caused by his attempted suicide, the applicant did not have any other signs of violence on his body. 14.", "On 30 April 2006 the Buiucani prosecutor's office ordered that police officer I.M. be removed from the applicant's case on account of the latter's complaint alleging ill-treatment. The police officer was prohibited even from accompanying the applicant to and from the detention centre. The removal was justified by the need to ensure the objectivity of the investigation into the applicant's complaints. 15.", "On 2 May 2006 the applicant's lawyer requested the prosecutor of the Buiucani District to authorise the applicant to undergo, inter alia, neurological, ophthalmological, psychiatric and other medical examinations. He requested that the medical examinations be carried out by independent doctors in the presence of the applicant's relatives. This request was refused. 16. On 3 May 2006, following complaints by the applicant's lawyer, Amnesty International organised action in support of the applicant by publishing on their Russian internet site a description of the applicant's case and an appeal to people from all over the world to write to the Prosecutor General of Moldova, the Moldovan Ministry of Internal Affairs and the Moldovan Embassy in their country asking them to take action, such as conducting a medical examination of the applicant and carrying out an effective investigation into his complaints of torture, and allowing the applicant to meet his lawyer in conditions of confidentiality.", "17. Following Amnesty International's action, the Moldovan authorities received twenty-seven letters from different countries and the applicant's case was widely reported in the mass media. 18. On 16 May 2006 the applicant was released from detention. On the same day he sought medical assistance at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT).", "He appears to have been subjected there to detailed medical tests and examinations by various medical specialists. In a document entitled “Extract from the medical file” (“Extras din Fişa Medicală”), dated 16 June 2006, issued by the Centre, it was stated, inter alia, that the applicant had suffered the consequences of cranial trauma, post-traumatic otitis and mixed deafness on the right side and hypoacusis (slightly diminished auditory sensitivity, with hearing threshold levels above normal) on the left side. 19. On 18 May 2006 the applicant underwent a medical check-up at the Institute of Neurology and Neurosurgery of the Ministry of Health. It appears that he was directed there by doctors from the “Memoria” Rehabilitation Centre for Torture Victims who had diagnosed cranial trauma.", "He was seen by a neurosurgeon, who confirmed that the applicant had suffered cranial trauma and concussion with permanent vegetative disorder and intracranial hypertension. Moreover, the doctor found that the applicant was experiencing loss of consciousness, post-traumatic otitis and sleep disorder. The medical report of the Institute of Neurology and Neurosurgery was not issued to the applicant until 12 June 2006. 20. On 24 May 2006 the prosecutor G.B.", "from the Buiucani prosecutor's office dismissed the applicant's torture complaint. In his decision he stated, inter alia, that the three policemen allegedly involved in acts of torture had been questioned and had denied all the accusations; that according to the medical report dated 28 April 2006, the applicant did not have any signs of torture on his body; and that in the office where he had allegedly been tortured no coat hanger had been found. As to his attempted suicide, the prosecutor considered that it had been simulated so as to avoid criminal responsibility. 21. On 30 May 2006 the applicant appealed to the Buiucani District Court against the decision of 24 May 2006.", "He argued, inter alia, that the prosecutor had refused to allow him to undergo a complete medical examination, as requested by him on 2 May 2006, and that this was contrary to the authorities' positive obligations under Article 3 of the Convention. He also informed the court that immediately after his release from detention he had undergone a medical examination which established that he had been tortured during his detention. 22. On 15 June 2006 the Buiucani District Court held a hearing in the case concerning the applicant's complaint of torture. The applicant's lawyer requested that the medical report of the Institute of Neurology and Neurosurgery dated 18 May 2006 be included in the case file.", "Judge M.D. admitted the report in evidence. However, in a decision of the same date he dismissed the appeal as unfounded without giving an assessment of any of the above evidence. He simply repeated the reasons given by the prosecutor G.B. in his decision of 24 May 2006 dismissing the complaint of torture.", "23. On 24 June 2006, after the medical report from the “Memoria” Rehabilitation Centre for Torture Victims had become available to him, the applicant wrote to the Buiucani prosecutor's office asking it to re-examine his ill-treatment complaint in the light of the medical report. However, on 5 July 2006 he was informed that there were no grounds for reopening the investigation. 24. In the meantime, on 22 June 2006, the applicant had lodged an application with the Court in which he complained under Article 3 of the Convention that he had been tortured and that there had been no effective investigation into his allegations of torture.", "25. On 26 June 2006 the Prosecutor General of the Republic of Moldova, Valeriu Balaban, wrote a letter to the Moldovan Bar Association, in which he stated, inter alia, the following: “Lately, the Prosecutor General's Office has been confronted with the phenomenon whereby some Moldovan lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases. These organisations are used as an instrument for serving personal interests and for avoiding the criminal responsibility of suspected persons. Examples of such incidents are the case of G., triggered by the lawyer A.U., and the case of Vitalie Colibaba, triggered by the lawyer R. Zadoinov. The international mediatisation of these cases prompted active action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers' clients.", "After having examined sufficiently thoroughly the complaints alleging torture and abuse on the part of the police ... the Prosecutor's Office dismissed the complaints on the ground of lack of proof that offences had been committed. ... ... In such circumstances the irresponsible attitude and behaviour of the lawyers A.U. and R. Zadoinov give rise to concern. They knew that no acts of torture had been committed against their clients.", "However, they complained to international organisations without first attempting to use the national mechanism for solving such problems. They presented the facts erroneously in order to win their cases... Such practices by lawyers will be investigated by the Prosecutor General's Office in order to determine whether they have committed the offence provided for in Article 335 § 2 of the Criminal Code, by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country. Accordingly, the Bar Association is called upon to take account of the facts described above, to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of the Republic of Moldova.” 26. The above letter generated a heated debate in the media.", "On 30 June 2006 the Moldovan Bar Association issued an official statement in which it qualified the Prosecutor General's letter as an attempt to intimidate lawyers. In an interview to the newspaper Ziarul de Garda the President of the Bar Association declared, inter alia, that this was an attempt to intimidate lawyers so that they would not complain to the Court any more. At the same time Amnesty International organised action in support of the lawyers mentioned in the Prosecutor General's letter and issued a statement in which it declared, inter alia, the following: “[Amnesty International] is concerned that the letter to the Bar Association of Moldova is a deliberate attempt to intimidate A.U. and Roman Zadoinov, and to prevent lawyers in Moldova from making public information about human rights violations. It is a violation of the right to freedom of expression, and if the lawyers were to be imprisoned for this offence Amnesty International would consider them prisoners of conscience.” II.", "RELEVANT DOMESTIC LAW 27. The relevant provisions of the Criminal Code read as follows: “Article 335. Abuse of official duties 1. Intentional use by a person... of his or her official duties for personal gain or for other personal interests... shall be punishable by a fine of ... or by imprisonment for up to three years. 2.", "The same offence committed by a notary, auditor or lawyer shall be punishable by a fine of MDL 10,000 to 16,000, or by imprisonment for 2 to 5 years...” THE LAW 28. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police during his detention and that he had not been provided with food and water between 25 and 27 April 2006. He also complained of the failure of the domestic authorities to investigate properly his allegations of ill-treatment. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 29. The applicant argued that he did not have an effective remedy before a national authority in respect of the breaches of Article 3 and alleged in this connection a violation 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 ....” 30.", "Lastly, the applicant complained under Article 34 of the Convention that the Prosecutor General's letter of 26 June 2006 was intended to intimidate his lawyer and therefore constituted a breach of his right of petition. The relevant part of Article 34 reads: “...The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” I. ADMISSIBILITY OF THE COMPLAINTS A. The complaint under Article 3 concerning the conditions of the applicant's detention 31. The applicant complained that between 25 and 27 August 2006 he had not been provided with food and water. The Government disputed this allegation.", "32. The Court notes that the applicant failed to adduce any evidence in support of this allegation. Accordingly, it concludes that this complaint is manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention. B. The rest of the complaints 33.", "The Court considers that the rest of the applicant's complaints raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares this part of the application admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the relevant complaints. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A.", "The submissions of the parties 1. Concerning the alleged ill-treatment 34. The applicant argued that the medical report dated 28 April 2006 (see paragraph 13 above) was not credible as it was based on a very superficial examination conducted by a generalist and not by a specialist in neurology, ophthalmology and psychiatry. The doctor had not used any special medical tests or medical equipment and had only examined him visually. Moreover, the applicant expressed doubts about the doctor's independence and pointed to the fact that the police officers who had ill-treated him had been present during the examination, whereas his lawyer had not been allowed to be present.", "35. The applicant pointed to the medical reports of 16 and 18 May 2006 (see paragraphs 18 and 19 above) and argued that they clearly showed that upon his release from detention, he had had injuries which supported his allegations that he had been tortured on 25 and 27 April 2006. He argued that these medical examinations had been conducted by several independent doctors and were therefore credible. 36. The applicant contested the Government's allegations that he was a drug addict and argued that the Government had not submitted any medical evidence to that effect.", "37. The Government argued that the applicant had not been subjected to any form of ill-treatment because no traces of violence had been found on his body during the medical examination of 29 April 2006 (see paragraphs 12 and 13 above). His attempted suicide had not been due to torture but to a state caused by the lack of narcotics to which he was addicted. 38. Referring to the medical examinations conducted by the doctors from the “Memoria” Rehabilitation Centre for Torture Victims, the Government argued that it was not conclusive as it had been carried out one month after the applicant's release from detention.", "In their view, the date of 16 June 2007 indicated on the document issued by the Centre was the date on which the medical examination had been conducted (see paragraph 19 above). 39. As to the medical report dated 18 May 2006 (see paragraph 18 above), the Government advanced two different positions. In their observations of 2 January 2007 they did not dispute its authenticity or credibility; however, they argued that it was irrelevant since the examination had been carried out two days after the applicant's release and that in the meantime he could have injured himself. In their observations of 17 April 2006 the Government expressed doubts about the credibility of the report because when referring to the dates of the alleged ill-treatment reference was made to “25, 27.05.2006” instead of “25, 27.04.2006”.", "2. Concerning the alleged inadequacy of the investigation 40. The applicant argued that the same prosecutors who had conducted the criminal investigation against him had investigated his complaint of ill-treatment and that no independent bodies had been involved in the investigation. 41. The Government argued that as soon as the applicant had complained of ill-treatment he had been subjected to a medical examination.", "Shortly afterwards, the police officer accused of ill-treatment had been removed from the case so that the objectivity of the investigation would not be endangered (see paragraph 14 above). After the accused police officers had been questioned and an objective examination of all the evidence had been carried out, it was concluded that the applicant had not been ill-treated. That conclusion had been confirmed by the court that had examined the case objectively in adversarial proceedings. Accordingly, the investigation had been effective and the State had satisfactorily discharged its procedural obligations. B.", "The Court's assessment 1. Concerning the alleged ill-treatment 42. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos.", "1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). 43. Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004).", "It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni, cited above, § 87). 44. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161).", "However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 45.", "It is undisputed that between 21 April 2006 and 16 May 2006 the applicant was under the control of the police. It is disputed, however, whether during that period of time the applicant sustained injuries, other than those resulting from his attempted suicide. 46. The Government relied on the medical report dated 28 April 2006 and argued that the applicant had not been injured on the dates alleged. At the same time they argued that the medical reports dated 16 June and 18 May 2006 did not prove that the applicant had been suffering from cranial trauma when he was released from detention.", "47. The Court is not convinced by the latter arguments and notes that while the medical document issued by the “Memoria” Rehabilitation Centre for Torture Victims was dated 16 June 2006, it clearly states at the very beginning that the applicant came to the Centre on 16 May 2006. Moreover, even its title indicated that it was a summary of the applicant's medical file (see paragraph 18 above). 48. As to the medical report dated 18 May 2006, the Court notes that it confirmed the findings made by the Rehabilitation Centre concerning the applicant's cranial trauma.", "Therefore the Government's assertion that the applicant could have been injured after his release, between 16 and 18 May 2006 (see paragraph 39 above), appears implausible. As to the Government's assertion concerning the problem with the dates of the alleged injuries indicated in the report (see paragraph 39 above), the Court considers that an obvious drafting mistake had been made by the doctor, as it was clearly alleged by the applicant at all stages of the proceedings that his ill-treatment had occurred in April and not in May 2006. Indeed, the Court notes a similar problem with the dates in the medical report relied on by the Government in support of their position. While that report is dated 28 April 2006, it clearly appears from its content and from the parties' submissions that the actual medical examination took place on 29 April 2006 (see paragraphs 12 and 13 above). 49.", "At the same time the Court has doubts about the credibility of the report dated 28 April 2006. It notes with concern that the applicant was taken to the Centre of Forensic Medicine by the police officers who had allegedly ill-treated him and that the applicant's medical examination took place in their presence (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 100, ECHR 2004‑IV (extracts)). In such circumstances, the Court cannot rule out the possibility that the applicant felt intimidated by the persons whom he had accused of having tortured him. The Court refers to the applicant's allegation that on 27 April 2006 he was repeatedly subjected to torture in retaliation for his complaint to the lawyer (see paragraph 10 above).", "Moreover, the Court notes that even the prosecutor's office considered it necessary to remove police officer I.M. from the applicant's case and to exclude any contact between the two in order to ensure the objectivity of the investigation into the allegations of ill-treatment (see paragraph 14 above). In such circumstances, the Court finds it difficult to give weight to a medical report based on a medical examination conducted in the presence and under the supervision of the applicant's alleged torturers. 50. In the light of the above considerations, the Court comes to the conclusion that the applicant's cranial trauma was caused during his detention.", "51. Since the Government did not give any explanations concerning the origin of the above injury, and having regard to the strong presumption which arises in such matters (see paragraph 43 above), the Court concludes that the Government have not satisfied the burden on them to persuade it that the applicant's cranial trauma was caused by anything other than ill-treatment while in police custody. Accordingly, there has been a violation of Article 3 of the Convention in that he was subjected to ill-treatment. 2. Concerning the alleged inadequacy of the investigation 52.", "The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 53.", "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 Assenov and Others v. Bulgaria, judgment cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).", "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. 54. The Court notes a series of serious shortcomings in the investigation conducted by the national authorities. In the first place, it notes that the applicant's request of 2 May 2006, addressed to the prosecutor's office, to undergo an independent medical examination in the presence of his relatives was rejected without any plausible reasons being given (see paragraph 15 above). Secondly, the court which examined the applicant's appeal against the prosecutor's office's decision of 24 May 2006 disregarded the applicant's submission that he had not been allowed to undergo an independent medical examination and did not even consider it necessary to give reasons (see paragraph 21 above).", "Moreover, the court did not pay any attention to the applicant's submission in his appeal that on 16 May 2006 he had been examined by independent doctors who had found signs of ill-treatment on his body. The court manifested no interest in seeing the medical report of 18 May 2006 submitted by the applicant on 15 June 2006 (see paragraph 22 above). Later, the prosecutor's office refused to examine the applicant's request for a re-examination of his case in the light of the document issued by the “Memoria” Rehabilitation Centre for Torture Victims (see paragraph 23 above). 55. In the light of the serious deficiencies referred to above, the Court considers that the domestic authorities did not make a serious attempt to investigate the applicant's complaints of ill-treatment.", "Accordingly, there has been a violation of Article 3 of the Convention in this respect also. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 56. The applicant also complained that there had been no effective remedies in respect of his complaint of ill-treatment, contrary to Article 13 of the Convention. 57.", "The Government disagreed and asked the Court to reject the complaint. 58. The Court considers that the complaint under Article 13 of the Convention essentially repeats the complaint about the lack of an effective investigation made under Article 3 and examined above. Accordingly, it does not consider it necessary to examine this complaint separately. IV.", "ALLEGED FAILURE TO OBSERVE ARTICLE 34 OF THE CONVENTION A. The submissions of the parties 59. The applicant argued that the Prosecutor General's letter of 26 June 2006 was intended to intimidate his lawyer by threatening him with criminal proceedings so that he would not apply to international organisations specialising in human rights protection such as Amnesty International, the European Court of Human Rights and others. 60. The letter represented a serious threat and proof of that was the fact that the other lawyer mentioned in it, A.U., had given up representing her client shortly afterwards.", "The applicant's lawyer had also felt discouraged and intimidated. 61. The Government argued that the Prosecutor General's letter was not intended to discourage lawyers from applying to the Court and such could not even be inferred from its content. Moreover, none of the lawyers who had represented clients before the Court had ever been criminally prosecuted for doing so. 62.", "In the Government's opinion the Prosecutor General's letter was nothing more than a call to lawyers to comply with the professional code of ethics and to submit only true information to international organisations and not suppositions. 63. The Prosecutor General's statement that lawyers' practices would be the subject of criminal investigations, and his reference to Article 335 § 2 of the Criminal Code, did not mean that following such investigations particular lawyers would be criminally prosecuted on the ground that they represented clients before the Court. His message had been wrongly interpreted by certain lawyers. 64.", "The Government described the applicant's complaint under Article 34 as slanderous towards the Moldovan State authorities and denied the existence of any causal link between the Prosecutor General's letter and the subsequent decision of the lawyer A.U. to give up representing her client. B. The Court's assessment 65. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996‑IV, § 105; and Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996‑VI, § 105).", "In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998‑III, § 159). Whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see Akdivar and Others and Kurt, both cited above, § 105 and §160 respectively). 66. The applicant argued that he considered the Prosecutor General's letter to be a form of intimidation, while the Government submitted that it was not intended to intimidate anyone but simply to call on lawyers to comply with their professional ethics. 67.", "Having examined the Prosecutor General's letter, the Court tends to agree with the applicant that it does not seem to have been merely a call to lawyers to observe professional ethics as suggested by the Government. The language employed by the Prosecutor General, the fact that he expressly named the applicant's lawyer in the context of this case and the warning that a criminal investigation would be initiated as a result of the latter's allegedly improper complaint to international organisations could, in the Court's view, easily be construed as amounting to pressure on the applicant's lawyer and on all lawyers in general. Indeed, that also appears to have been the perception of Moldovan lawyers and of Amnesty International (see paragraph 26 above). 68. The Court further notes that the Prosecutor General's letter did not refer expressly to lawyers' complaints lodged with the Court but rather to complaints to “international organisations specialising in the protection of human rights”, and that it is not clear whether the Prosecutor General knew about the present application when he wrote his letter.", "However, in the Court's opinion, none of the above is decisive for the purpose of determining the present complaint as the wording of the impugned letter could in any event have had a chilling effect on the applicant's lawyer's intention to bring or pursue his client's application before the Court. 69. In view of the foregoing, the Court considers that the respondent State has failed to comply with its obligations under Article 34 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. The applicant claimed 65,000 euros (EUR) in respect of the non-pecuniary damage suffered as a result of the ill-treatment to which he had been subjected and of the breach of his right of petition. He argued that he had experienced mental and physical suffering, anguish, distress, fear for his life and humiliation. 72. The Government contested the amount claimed by the applicant and argued that there was no proof that he had suffered any damage.", "They asked the Court to dismiss the applicant's claim. 73. Having regard to the violations found above and their gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 14,000. B.", "Costs and expenses 74. The applicant also claimed EUR 12,067 for the costs and expenses incurred before the Court. He submitted a detailed time-sheet indicating the time spent by his lawyer on the case and an itemised list of other expenses linked to the examination of the case. He also submitted a copy of a contract between him and his lawyer. 75.", "The Government disagreed with the amount claimed for representation and disputed, inter alia, the number of hours spent by the applicant's lawyer and the hourly rate charged by him. They also argued that the claims were excessive in view of the economic realities in Moldova. 76. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 2,500 for costs and expenses.", "C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 3 of the Convention concerning the conditions of the applicant's detention inadmissible and the remainder of the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant's ill-treatment while in detention; 3.", "Holds that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the applicant's complaints of ill-treatment while in detention; 4. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention; 5. Holds that the respondent State has failed to comply with its obligations under Article 34 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 14,000 (fourteen thousand euros) in respect of non-pecuniary damage and EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 23 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF ERDOĞAN YAĞIZ v. TURKEY (Application no. 27473/02) JUDGMENT STRASBOURG 6 March 2007 This judgment is final but it may be subject to editorial revision. In the case of Erdoğan Yağız v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,András Baka,Ireneu Cabral Barreto,Rıza Türmen,Mindia Ugrekhelidze,Antonella Mularoni,Danutė Jočienė, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 6 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27473/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Erdoğan Yağız (“the applicant”), on 22 June 2002.", "2. The applicant was represented by Mr E. Özgün, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not appoint an Agent for the purposes of the proceedings before the Court. 3. On 7 July 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 4. The applicant was born in 1954 and lives in Istanbul. A.", "The applicant's arrest and detention in police custody 5. On 26 November 1999 Ms S.D. lodged a criminal complaint against S.Ç. and G.D., alleging threatening behaviour. She apparently stated that “a certain Erdoğan, chief of police” had protected the two men.", "6. On 5 February 2000, at about 5 p.m., the applicant, who had been employed as a doctor by the Istanbul police for fifteen years, received a telephone call from his supervisor, who asked him to come to the office. As he got out of his car in the car park outside the building, the applicant was stopped by three police officers. In front of the members of the public in the courtyard, he was handcuffed and informed that he was under arrest. In the course of his arrest, the applicant told the officers that he was an official police doctor and that there must have been a mistake.", "He begged them not to handcuff him in front of hundreds of people. He was taken into police custody in the organised crime and arms-trafficking branch. 7. Later that day, without having informed him of the accusations against him, the police took the applicant in handcuffs to his workplace and home, where they carried out searches. It appears that he again asked for the handcuffs to be removed so that his children and neighbours would not see him being restrained.", "He even suggested that the officers go to his home after sunset so that he would not be exposed to public view. The police officers refused and, moreover, forced him to walk 70 metres along the road before arriving at his home. During the search he was allegedly insulted in front of his family. The police also seized his official weapon. 8.", "The applicant further maintained that he had signed the records of the searches while in handcuffs, before being escorted back to the police headquarters. He was made to sit on a chair, blindfolded and still in handcuffs, throughout his time in police custody. As the chair was by the entrance to the toilets, he was jostled whenever anyone came past. He heard staff from the headquarters ask why their doctor was in police custody. He refused to drink or eat.", "9. On 7 February 2000 a statement was taken from him by the police although he had not been informed of the accusations against him. ... 10. On 5, 6 and 7 February 2000 the applicant was examined by a forensic specialist. The subsequent medical reports did not mention any signs of assault.", "They stated that he was cooperative and lucid, that his faculties had not been impaired and that he had not reported any particular grievances. 11. On 8 February 2000 the applicant was taken to the Bakırköy public prosecutor's office; he was later released without being brought before the prosecutor. 12. On 10 February 2000 he was examined by a psychiatrist, who certified him unfit for work for twenty days on account of psychiatric trauma.", "His sick-leave was extended several times on account of acute depression. 13. On 15 February 2000 the applicant lodged a very detailed complaint with the Istanbul Criminal Court concerning his detention in police custody, setting out the circumstances in which he had been arrested, detained and released after three days without any explanation. He asked the court to inform him why he had been taken into police custody. 14.", "Later that day the court replied that he had been questioned in connection with criminal investigation no. 2000/102 because of his relations with suspects. 15. On 16 February 2000 the applicant was informed that he was to be suspended until the end of the criminal investigation on account of his relations with persons who had already been convicted of blackmail, looting and false imprisonment as members of an organised gang. 16.", "On 19 February 2000 the factory which employed him as a doctor under an individual contract – a post he had found in the private sector – dismissed him, criticising him for his lack of care and attention towards the staff. The letter of dismissal also mentioned that he was undergoing psychiatric treatment. 17. In an order of 1 March 2000 the Criminal Court ruled that the applicant's official weapon should be returned to him in the absence of any offence or indictment. 18.", "On 9 March 2000 the public prosecutor's office discontinued the case against the applicant. 19. On 12 July 2000, the applicant was reinstated in his post at the police headquarters. However, as he was unable to work in the same department on account of aggravated psychosomatic symptoms, he remained on sick-leave until 3 January 2002, when he was admitted to hospital. 20.", "On 28 February 2002 he was ordered to take early retirement on health grounds, the diagnosis being “persecution-type hallucination with serious depression”. He was subsequently admitted to the neuropsychiatry department of Bakırköy University Hospital on several occasions for psychiatric treatment. B. The applicant's complaint against the police officers 21. On 9 January 2001 the applicant lodged a complaint with the Fatih public prosecutor's office against five police officers, H.Ö., A.A., B.K., Z.G.", "and A.S., alleging that they had abused their authority and ill-treated him with a view to obtaining a confession. He gave a detailed explanation of how he had been handcuffed without being informed of the accusations against him and insulted in front of his family and police personnel, and of all the forms of humiliation he had suffered without knowing why. 22. The public prosecutor's office asked the Istanbul Provincial Administrative Council (İl İdare Kurulu) for leave to open an investigation. 23.", "On 6 June 2001 the Administrative Council refused leave to open a judicial investigation on the ground that no fault was attributable to the police officers. 24. On 27 July 2001 the applicant lodged an objection with the Istanbul Administrative Court. 25. In a judgment of 21 November 2001 the Administrative Court dismissed the objection.", "26. On 12 December 2001 the public prosecutor's office discontinued the proceedings on the basis of the Administrative Council's decision. 27. On 15 January 2002 the applicant appealed against the judgment to the Istanbul Assize Court. 28.", "On 20 March 2002 the Assize Court dismissed the appeal. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant submitted that the police officers had subjected him to humiliating and degrading treatment during his arrest and detention.", "He complained that they had exposed him to the public in handcuffs and then taken him to his workplace and his home, still in handcuffs. He contended that the police officers' conduct during his time in their custody had been designed to humiliate and debase him in front of his colleagues, neighbours and family. He alleged that this humiliation had affected him to such an extent that he had lost all capacity to cope with it psychologically, had lost his job as a result and had been undergoing psychiatric treatment ever since. He relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 32.", "The Government observed that the applicant had not submitted any medical reports to substantiate the ill-treatment to which he had allegedly been subjected while in police custody. They thus concluded that the facts of the case had not attained the minimum level of severity to fall within the scope of Article 3. 33. The applicant contested that submission. 34.", "The Court observes that the applicant did not complain of physical violence but of inhuman and degrading treatment, which had consisted in forcing him to sit on a chair for three days, insulting him and publicly displaying him in handcuffs at his workplace, in the area where he lived and in front of his family. The Court notes that the Government have not submitted any observations concerning those complaints. 35. It reiterates that 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 and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no.", "25). 36. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Ireland v. the United Kingdom, cited above, § 167; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 120, ECHR 1999‑VI; and Kudła v. Poland [GC], no.", "30210/96, § 92, ECHR 2000-XI). In order for a punishment or treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). 37. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, 10 February 1983, § 22, Series A no.", "58). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 101, ECHR 2002‑VI). In this connection, the public nature of the punishment or treatment may be a relevant or aggravating factor (see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII).", "Moreover, it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26, and Smith and Grady, cited above, § 120). 38. Lastly, allegations of ill-treatment must be supported before the Court by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § 30, Series A no. 269).", "39. In assessing the consequences suffered by the applicant, the Court will have particular regard to the context of the alleged treatment and its effects on his personality. 40. It notes at the outset that the applicant, who had been employed as a general practitioner for fifteen years, had no history of mental disorders before being taken into police custody, and no evidence has been produced to show that he suffered from any psychosomatic instability. Before the Court, and in his complaint to the prosecuting authorities, he gave a detailed explanation of the treatment to which he had been subjected in police custody and, above all, the humiliation he had felt at being exposed to public view in handcuffs, both at his workplace in front of his patients and in the area where he lived (see paragraphs 6‑8 above).", "41. The Court observes that the Government made no submissions on the issue of handcuffing, in particular as to whether the applicant had indeed been left to sit handcuffed throughout his three days in police custody in the conditions he described, whether he had been handcuffed in public view in the courtyard of the building and whether handcuffing was a statutory requirement at the time of his arrest and the searches and/or necessary in his particular case. 42. As regards the kind of treatment in question in the present case, the Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances (see Raninen, cited above, § 56). However, in this connection it is important to determine whether there is reason to believe that the person concerned would resist arrest, attempt to flee, cause injury or damage or suppress evidence.", "The Court notes that it found in Raninen that the applicant's handcuffing had (as conceded by the Government) not been made necessary by his own conduct and had therefore been unjustified in itself. 43. The Court further observes that in the present case it can reasonably be presumed that there is a causal link between the treatment complained of and the onset of the applicant's mental disorders, which, moreover, were diagnosed two days after his release (contrast Raninen, cited above, § 58). 44. According to the successive medical reports, the applicant sustained severe trauma following his time in police custody.", "In particular, he felt humiliated in front of staff at the police headquarters who were his patients. 45. The Court accepts that such treatment, in particular the wearing of handcuffs in public, can affect a person's self-esteem and cause him or her psychological damage. In the applicant's case it appears from his psychiatric assessments, the medical reports confirming his acute depression, and his admissions to psychiatric institutions on account of the trauma he suffered, as a result of which he was made to take early retirement, that he was affected mentally by the treatment to which he was subjected (contrast Raninen, cited above, § 58). In particular, it appears that wearing handcuffs in public at his workplace and in front of his family aroused in him a strong feeling of humiliation and shame, especially in view of his professional duties.", "His mental state suffered irreversible damage as a result of the incident, and he was incapable of coming to terms with his ordeal. The Court observes that the psychiatric reports corroborate his argument that wearing handcuffs in public affected his mental state (see paragraphs 12 and 19‑20 above). It has already accepted that treatment may cause a victim to feel humiliated in his own eyes, even if there is no public element (see Tyrer, cited above). Clearly, the applicant's feeling of humiliation was aggravated by the public nature of his treatment. 46.", "The applicant did not have a record that might have led to fears for security and there is no evidence that he posed a danger to himself or to others or that he had previously committed criminal acts or acts of self-destruction or violence against others. The Court attaches particular importance to the fact that in their observations the Government did not provide any explanation justifying the need for handcuffs. 47. The Court cannot discern any ground for accepting that it was necessary for the applicant to be seen in handcuffs during his arrest and the searches. It therefore considers that in the particular context of the case, exposing him to public view wearing handcuffs was intended to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his moral resistance.", "48. In the light of these considerations, the Court concludes that, in the exceptional circumstances of the applicant's case, wearing handcuffs constituted degrading treatment in breach of Article 3 of the Convention. There has therefore been a violation of that provision. ... 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 297,792 euros (EUR) in respect of pecuniary damage, on account of the loss of earnings sustained as a result of his enforced early retirement. He also sought EUR 750,000 for the non-pecuniary damage he had sustained. 57.", "The Government submitted that those claims were excessive. 58. Making its assessment on an equitable basis, the Court considers that the applicant should be awarded EUR 2,000 to cover all heads of damage. ... FOR THESE REASONS, THE COURT UNANIMOUSLY ... 2. Holds that there has been a violation of Article 3 of the Convention on account of the degrading treatment endured by the applicant; ...", "Done in French, and notified in writing on 6 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Cabral Barreto is annexed to this judgment. F.T.S.D. CONCURRING OPINION OF JUDGE CABRAL BARRETO (Translation) I agree with the conclusion that there was “degrading treatment in breach of Article 3 of the Convention” in the present case, but I would have preferred to reach that finding by means of the following reasoning. 1.", "According to the Court's settled case-law, where an individual is taken into the custody of the State in good health but is found to be “injured” at the time of release, if the Government do not provide a plausible explanation of how those “injuries” were caused, the State must be held responsible for the individual's situation. I agree with the observation in paragraph 43 that in the applicant's case it can reasonably be presumed that there is a causal link between the treatment complained of and the onset of his mental disorders. 2. However, if this causal link exists, is the State responsible for all the after-effects suffered by the applicant, for example his “persecution-type hallucination with serious depression” and his inability to continue practising as a doctor? An answer in the affirmative would lead me to conclude without hesitation that the situation was so serious as to qualify as “torture” rather than “degrading treatment”.", "In my opinion, the applicant's suffering can be defined as “severe” within the meaning of Article 1 of the United Nations Convention against Torture. As the Court has held, “this 'severity' is, like the 'minimum severity' required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.” (see Selmouni v. France [GC], § 100, ECHR 1999-V). The effects on the applicant's mental state are beyond dispute. Admittedly, the treatment in question – wearing handcuffs – could hardly be regarded as sufficiently severe to attain the threshold required for the particular situation experienced by the applicant to be defined as torture; once again, however, we should not overlook the relative nature of concepts. 3.", "Why then do I have no hesitation in ruling out the classification of “torture” for the acts complained of? For a very simple reason: there is not an adequate causal link, and I stress “adequate”, between the acts of which the police authorities were accused and the applicant's state of health. A causal link is a common factor in all forms of liability, whether civil, criminal, political or any other form. However, it is not sufficient to consider, as the theory of equivalence of conditions does, that any event without which the damage would not have occurred should be treated as a cause. It must be shown that there is a relationship of probability – according to the normal course of things, the ordinary sequence of events and experience of life – between the event and the damage alleged to have resulted from it.", "According to the theory of adequate causation, we should disregard the factors that have become part of the damage as a result of extraordinary circumstances and consider only those which experience of life suggests are likely to produce damage. Returning to the case at hand, I must say that wearing handcuffs, even if we take into account the very particular set of circumstances that obtained, would in all probability not be expected to produce such serious consequences as those suffered by the applicant. Thus, once the adequate causal link between the police authorities' acts and the applicant's state of health has been broken, the State cannot be held responsible under the Convention for the applicant's current situation. All that remains is the fact of wearing handcuffs. The special circumstances of the present case are very different from, and more serious than, those examined in Raninen v. Finland (16 December 1997, Reports of Judgments and Decisions 1997-VIII); accordingly, contrary to the conclusion reached in Raninen, and for the reasons set out in the judgment, the present case involved degrading treatment worthy of censure." ]

[ "THIRD SECTION CASE OF ČOP v. SLOVENIA (Application no. 6539/02) JUDGMENT STRASBOURG 7 December 2006 FINAL 07/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Čop v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrV. Zagrebelsky,MrsA. Gyulumyan,MrE. Myjer,MrsI. Ziemele,MrsI.", "Berro-Lefevre, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 16 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6539/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Anton Čop (“the applicant”), on 26 January 2002. 2. The applicant was represented by Mr J. Vrviščar, a lawyer practicing in Kamnik, Slovenia.", "The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which 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 13 September 2005 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicant was born in 1956 and lives in Kamnik. 6.", "On 12 October 1993 the applicant lodged an action for enforcement with the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) against a company named Avtotehna (“AT”). He sought a collection of overdue salaries as they were determined by a labour-court judgment of 16 October 1993. On 10 December 1993 the court allowed the enforcement. On 15 December 1993 the applicant appealed against this decision because the court failed to decide on cost and expenses of the proceedings. At an undetermined time AT objected the enforcement and the court stayed the enforcement.", "On 28 June 1994 the Convention took effect with respect to Slovenia. On 1 January 1995 the Ljubljana Local Court (Okrajno sodišče v Ljubljani) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. On 12 February 1996 AT amended its objection and informed the court of the amount of debt the company estimated to have had towards the applicant. On 11 February 1999 the applicant filed a request for supervision with the Ministry of Justice, because the court had not yet delivered a decision. On 10 March 1999 the court referred AT to start contentious proceeding in order to challenge the enforcement order.", "7. On 9 April 1999 AT instituted civil proceedings in the Ljubljana Local Court against the applicant, challenging the enforcement of the judgment of 16 October 1993. On 2 November 2000 the court invited the applicant to reply to the claim, which he did on 11 December 2000. On 15 October 2002 the applicant lodged a counter claim against AT. On 9 November 2004 the court held the first hearing.", "The hearing held on 14 December 2004 was adjourned in agreement with the parties, because the Pension and Invalidity Fund failed to provide the evidence the court had sought. On 1 February 2005 the court held a hearing which the applicant did not attend. The court decided to terminate proceedings. On 1 March 2005 the Court decided to reopen the proceedings in order to appoint a financial expert, as requested by AT. The proceedings are still pending.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 8. The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 9. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective.", "He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 10. The Government pleaded non-exhaustion of domestic remedies. 11. The applicant contested that argument, claiming that the remedies available were not effective. 12.", "The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant's disposal were ineffective. 13.", "As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 14. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Article 6 § 1 15. The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and has not yet ended. The relevant period has therefore lasted over ten years and four months and two instances have been involved.", "16. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 17. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.", "There has accordingly been a breach of Article 6 § 1. 2. Article 13 18. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).", "It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 19. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20.", "The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 that there is no call to award the applicant just satisfaction. Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]

[ "FIRST SECTION CASE OF KRONE VERLAG GMBH v. AUSTRIA (Application no. 27306/07) JUDGMENT STRASBOURG 19 June 2012 FINAL 19/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Krone Verlag GmbH v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 29 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27306/07) 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 Krone Verlag GmbH & Co. KG (“the applicant company”), a limited liability company with its registered office in Vienna, on 26 June 2007. 2. The applicant company was represented by Ebert Huber Liebmann Rechtsanwälte GmbH, a law firm based 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 applicant company alleged that judgments under the Media Act ordering them to pay damages had infringed their right to freedom of expression under Article 10 of the Convention. 4. On 27 August 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant company, Krone Verlag GmbH & Co KG, is the owner and publisher of the daily newspaper Kronen Zeitung. A. The background of the case 6. In 1999 E.R.", "and U.W., the parents of Christian W., dissolved their common household and concluded a provisional agreement on the custody of Christian under which sole custody was granted to E.R., while his brother stayed with U.W. On 13 February 2001 U.W. asked for custody to be withdrawn from E.R. and transferred to him. 7.", "On 22 February 2001 E.R. and U.W. agreed that pending the outcome of an expert report custody be provisionally transferred to U.W. (vorläufige Obsorge) and that for the time being Christian should live with U.W., his father. 8.", "It appears that subsequently U.W. hindered contact between Christian and E.R. and, in June 2002, moved to Sweden. Thereupon, by an interlocutory decision (einstweilige Verfügung) of 26 July 2002, custody of Christian was transferred back to E.R. 9.", "U.W. was ordered to hand Christian over to E.R. immediately or to take him back to Austria before 5 August 2002. That order was confirmed on appeal on 12 September 2002 and became final. 10.", "Thereupon E.R. travelled to Sweden to have that decision enforced. U.W. proposed to E.R. that they enter into an agreement on custody of Christian, and E.R.", "also agreed to staying in Sweden. However, no such agreement was finally reached. After E.R. had settled in Sweden and found employment there, U.W., together with Christian, left Sweden for Austria. 11.", "On 4 November 2002, pending the outcome of the custody proceedings, custody was temporarily transferred to the Salzburg Youth Welfare Office. On 23 December 2003 the court dismissed U.W.’s request for custody to be withdrawn from E.R. and transferred to him. The decision was declared immediately enforceable. 12.", "Subsequently, various attempts to enforce that decision were undertaken. The Austrian newspapers reported on these events because U.W. kept them regularly informed and sought publicity. 13. The first attempt at enforcement, on 23 December 2003, failed because U.W.", "and Christian went into hiding. U.W. had informed the media of this step in advance. Some time later they returned. In order to enforce the custody decision the competent court scheduled a hearing for 15 January 2004 in the course of which Christian was to be handed over to E.R.", "U.W. failed to appear at the hearing. 14. Thereupon the judge ordered that Christian be brought before the court by force (zwangsweise Vorführung). 15.", "When that decision had to be enforced by court officers Christian barricaded himself in his elementary school and, since the police officers who intervened decided not to use physical force on the premises of the school, this attempt also failed. These events were also widely covered by the media because U.W. had informed them in advance. 16. After further unsuccessful attempts the rural police (Gendarmerie) were informed on 26 January 2004 that Christian was at his father’s house.", "Court officers sent to the house noted, however, that Christian was not in the house but, together with a babysitter, in a car in front of it. The officers tried to take hold of Christian but he cried and resisted. These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists, who had been informed and had hurried to the spot. 17. In order to establish whether Christian had suffered injuries during the attempt to enforce the court order, U.W.", "took him to the Salzburg hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W. and Christian were separated and on the same day Christian was handed over to his mother, E.R., on the premises of the hospital. E.R. and Christian have been living in Sweden since that time.", "This final phase of the events was also widely reported on in the media. B. The proceedings under the Media Act 18. On 7 July 2004 Christian W., represented by his mother, brought proceedings under Sections 7 and 8a of the Media Act against the applicant company, seeking damages and publication of the ensuing judgment, claiming that a series of articles on the above-mentioned events published by the applicant company between 7 January and 16 February 2004 and which contained a detailed description of the events, giving his full name and illustrated by pictures of him, had breached his rights under those provisions. 19.", "He argued that the reporting on him had interfered with his strictly private life in a manner likely to expose and compromise him in public. Moreover, the articles constituted a breach of section 7a of the Media Act, which prohibited reporting on the victim of a crime in a manner which made him or her recognisable in public; that was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant public interest in the information. Both applications were lodged with the Vienna Regional Criminal Court. 20. On 19 October 2004 the Regional Court gave a detailed judgment in the case, which referred to the following articles published in the applicant company’s newspaper and summed up by the Regional Court as follows: “(1) 7 January 2004 The heading ‘Missing father returns home with his two boys’, with a picture of Christian.", "According to the report, the child’s father returned from holiday with Christian and his brother and had to go to the police because the boy was being forced against his wishes to move in with his mother following an inhuman court decision in the context of a divorce battle. (2) 8 January 2004 The heading ‘Family drama: Christian needs peace at last’, accompanied by a picture of the child. The report describes a failed attempt to take the boy to Sweden and quotes the head teacher of his primary school as saying that Christian suffers from anxiety. A large number of people, some of whom have signed a petition, are reported to be campaigning for Christian to remain with his father. (3) 16 January 2004 (a) On the front page, the heading ‘My best friend is my dog’.", "Underneath is a picture of Christian with his dog and text stating that the child does not wish to go to his mother. (b) The heading ‘What’s going on here is inhuman’, with two photographs of Christian. According to this article, five police officers entered the primary school in order to fetch the boy, who refused to go with them. The head teacher, some parents and classmates are reported as saying that what happened was inhuman. (4) 17 January 2004 The heading ‘Mad scramble for 8-year-old’, with a picture of Christian.", "The report states that several different people want the child, but no one has asked his opinion, resulting in an inhuman tug-of-war which is already affecting the child psychologically. The article further reports that a bailiff went to the child’s father’s flat but found no one at home. (5) 27 January 2004 (a) On the front page, the heading ‘Christian’s battle for his home’, with a picture of the plaintiff showing him grimacing as he resists being taken (into the police car) by the bailiff, while his brother tries to obstruct the bailiff. (b) The heading ‘You have no idea what you’re doing to the child’, with two more pictures. The article describes the child being taken from the babysitter’s car to the police car.", "It likens the scene to something from a distant dictatorship, with two bailiffs trying to tear the young plaintiff away from his familiar surroundings by brute force, against his will and despite his cries for help. Neighbours and friends of the family are reported as crying with rage and directing abuse at the court officials. The plaintiff reportedly sustained a serious injury to his spine at the hands of the bailiffs and had to be taken to hospital. (6) 28 January 2004 (a) On the front page, the heading ‘The whole of Salzburg up in arms’, accompanied by a photograph of the child lying in a hospital bed wearing a surgical collar. According to the article, the child was injured by the bailiffs’ rough treatment, and everyone was appalled and angered.", "(b) The heading ‘Bailiff pursues 8-year-old right into hospital’, with three pictures of the plaintiff, one showing him on a stretcher, one of him grimacing in pain in the arms of the bailiff while his brother tries to obstruct the latter, and a close-up of the child, again grimacing in pain, next to the bailiff and the car. The article also details rough treatment by the bailiffs, reportedly causing injury to the child, who is said to have complained of neck pains and to have told reporters how he had been punched in the back of the neck by one of the bailiffs. The doctor treating him is reported to have fitted a surgical collar. (c) The heading ‘Cries for help rang out in the night’, again with pictures of the child and reports on the public’s reaction to the bailiffs’ methods; (d) The heading ‘All for the good of the child’, together with the court’s findings and a picture of the child and (e) letters from readers angered by the treatment of the child by his mother and the court, again with a picture of the plaintiff. (7) 29 January 2004 (a) Heading on front page ‘Christian abducted from hospital’, together with a photograph.", "(b) The heading ‘Whole country moved by abduction’, with two photographs. The article criticises the allegedly rough methods of the bailiffs. (c) The heading ‘Did the bailiff want to put a sticker on the child?’, also with critical comments. (d) The heading ‘Abduction from hospital at dead of night’, also with a photograph The article describes the child’s removal from the hospital by his mother and quotes the father as saying that unless tough action is taken against the bailiffs, he will lodge a complaint. (e) The heading ‘Minister Böhmdorfer says violence against children is unacceptable’ again with a photograph and comments on the case, including by the then Justice Minister Dr Dieter Böhmdorfer, who condemns violence against children.", "(8) 30 January 2004 (a) The heading ‘Everyone wants Christian finally left in peace’: another report on the mother’s flight with her child, accompanied by a photograph of the child. (b) The heading ‘Scenes like those with Christian are completely avoidable’, also with a photograph. Comments on the case by a crisis-management expert. (9) 31 January 2004 (a) The heading ‘Christian’s case reopened’, with photograph. The report states that a new expert psychological opinion on the child is to be ordered.", "(b) The heading ‘Custody battle – the story so far’, describing events up to that point. (c) The heading ‘Blind hatred in salmon pink’, with comments by Günther Traxler, again with a picture of Christian grimacing in pain as the bailiff tries to put him in the police car. (10) 2 February 2004 Under the heading ‘Christian already in Sweden’, a report stating that the child has already been taken to Sweden by his mother and has had to leave his beloved dog behind. The report is accompanied by a picture. (11) 12 February 2004 The heading ‘I don’t want to stay here any longer’, again with three pictures of Christian.", "The reporter writes that the judge and bailiffs will have to answer to a disciplinary board and that Christian no longer wishes to stay with his mother in Sweden but wants to return to his father in Austria. (12) 13 February 2004 The heading ‘Interpol soon to search for missing Christian’, again with a picture of the child. The report states that the boy has tried to run away from his mother and has disappeared. (13) 16 February 2004 A reader’s letter under the heading ‘Violence is not the answer’, in which a 12‑year‑old criticises the judge, again with a picture showing Christian grimacing in pain.” 21. The Regional Court allowed the action and ordered the applicant company to pay damages in the amount of EUR 136,000, to publish the judgment in its newspaper, and to bear the costs of the proceedings.", "The Regional Court found that by publishing the above articles containing details of the custody dispute over nine-year-old Christian W., and, moreover, disclosing his full name and accompanied by a photograph of him partly showing a highly distressed facial expression, the applicant company had exposed his strictly private life in a manner likely to compromise him in public, in breach of section 7 of the Media Act. Moreover, the articles published on 27, 28 and 29 January 2004 had, without justification, disclosed the identity of a person who had been the victim of a criminal offence to a large and not directly informed circle of people, in breach of section 7a of the Media Act. 22. The Regional Court accepted that there existed a direct link between the events reported on and the public interest because of the sharp criticism voiced of the conduct of the court officials who had attempted to enforce the custody order. However, the person with custody of Christian had not agreed to publication and the public interest in the events could have been satisfied without giving the child’s full name and publishing pictures of him.", "23. On 29 March 2005 the applicant company appealed. Relying on Article 10 of the Convention, it argued, inter alia, that the Regional Court had failed to take into account the fact that there had already been an ongoing debate and that Christian’s father, acting as his son’s spokesman and in his interests, had informed the media of the events. Furthermore, it claimed that it had only acted as a public watchdog, informing the public about the proceedings and criticising the domestic authorities in the public interest. 24.", "On 21 September 2005 the Vienna Court of Appeal partly allowed the appeal. It found that there had been no breach of section 7a of the Media Act, because under that provision a compensation claim existed only if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim’s protected interests. In the present case, however, it was not the description of a criminal act that had breached Christian’s protected interests, since the proceedings against the court officials had ended without a conviction. The Court of Appeal therefore remitted the case to the Regional Court on this point. 25.", "It further emphasised that by giving details of the plaintiff’s intimate family life and his full name, and by adding pictures of him, the newspaper had intruded into his strictly private life, as these details had merely been given in order to create a sensation and satisfy the curiosity of its readers. Even if there was a link to public life, a media outlet could report on a person’s strictly private life only to the extent necessary to satisfy the need for information related to those elements which were of relevance to the public interest. Reporting on events relating to a person’s strictly private life therefore had to be appropriate to the circumstances and proportionate. In the present case it had not been necessary for the purpose of informing the public of alleged shortcomings within the judiciary, nor had it been necessary to expose in such an intense and striking manner the severe strain being suffered by the juvenile plaintiff by inserting photographs showing his distress and despair, mentioning his full name and setting out the details of his seizure. 26.", "On 19 May 2006 the Regional Court ruled again on the case and found no breach of section 7a of the Media Act. It accordingly reduced the amount of compensation to EUR 130,000. 27. On 14 March 2007 the Vienna Court of Appeal upheld that decision. II.", "RELEVANT DOMESTIC LAW 28. Section 7 of the Media Act, which has the title “Interference with a person’s most intimate personal sphere” (Verletzung des höchstpersönlichen Lebensbereiches), reads as follows: “(1) If a person’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ... (2) No compensation claim under paragraph 1 exists if 1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies; 2. the publication is true and has a direct connection to public life; 3. in the circumstances it could have been assumed that the person concerned had agreed to the publication; 4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence; 5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.” 29. Section 7a of the Media Act, which has the title “Protection against divulging a person’s identity in special cases” (Schutz vor Bekanntgabe der Identität in besonderen Fällen), reads as follows: “(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who 1. has been the victim of an offence punishable by the courts, or 2. is suspected of having committed, or has been convicted of, a punishable offence, and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.", "(2) Legitimate interests of the victim shall in any event be injured if the publication 1. in the case of subsection (1)1, is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure, 2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the advancement of the person concerned. (3) No compensation claim under paragraph 1 exists if 1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies; 2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security; 3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media; 4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence; 5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.” 30. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows: “The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.” 31. Section 8a of the Media Act, which has the title “Separate compensation proceedings” (Selbständiges Entschädigungsverfahren), insofar as relevant, reads as follows: “In a judgment by which compensation under Section 6, 7, 7b or 7c has been awarded on the basis of a separate compensation request, the court must also order the publication of the judgment if the person concerned so requests, ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32.", "The applicant company complained under Article 10 of the Convention that the judgments of the Austrian courts violated its right to freedom of expression. Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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.” 33. The Government contested that argument. A. Admissibility 34. 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 35. The Court notes that it is common ground between the parties that the Vienna Regional Court’s judgment of 19 October 2004, upheld by the Court of Appeal, which awarded damages to Christian, constituted an interference with the applicant company’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "36. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2, and is “necessary in a democratic society” for achieving such an aim or aims. 37. The Court considers, and this was acknowledged by the parties, that the interference was prescribed by law, namely by section 7 of the Media Act. The Court further finds, and this was likewise not disputed between the parties, that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.", "38. The parties’ argument concentrated on the question whether the interference had been “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 1. The parties’ submissions 39. The applicant company maintained that the interference with its right to impart information had not been necessary in a democratic society.", "There was no doubt that the event on which the applicant company had reported had involved questions which were a subject of public importance, namely the conduct of the courts and authorities when enforcing the Family Court’s decision to hand Christian over to his mother, and contributed to the public discussion which had been triggered by the questionable conduct of the enforcement officers. 40. In reporting on the matter the press could not, as suggested by the Austrian courts, have done so in a merely neutral and sober way. It was also a corporate necessity to attract the attention of the public by incorporating entertaining components, as otherwise it would be practically impossible to reach the public. Christian’s father had turned to the applicant company for assistance, as his son had repeatedly expressed the wish to remain with his father, whereas the Austrian courts had decided to transfer custody to his mother.", "The applicant company had therefore reported on this issue and the way in which the authorities had enforced their respective decisions. In order to show the public the anguish and shock which this approach had produced in Christian, it had been necessary to publish a picture showing the pain in his face and make clear to the public just what measures the Republic of Austria was implementing, allegedly in the interest of the child. This effect could not have been achieved if Christian’s face had been blurred. For the same reason it had been necessary to report extensively on how happy and intact Christian’s world had been while he was still living with his brothers and father. 41.", "The applicant company also argued that the amount of compensation awarded to Christian had been excessive. Firstly, no punitive damages were possible under Austrian law and the sum awarded was not proportionate to the actual injury suffered by Christian on account of the publication of the impugned material, and secondly, no distinction had been made between the thirteen different articles published. It was apparent that in a series of related articles, as in the present case, a later article with similar content to a previous one could not injure again to the same extent since the injurious circumstances would already be known. 42. The Government, while acknowledging the essential role played by the press as a “public watchdog”, asserted that in the present case the interference with the applicant company’s freedom of expression had been necessary within the meaning of Article 10 § 2 of the Convention.", "They argued in particular that the domestic courts had had to weigh the applicant company’s interest in imparting information on an issue of public interest against the right to protection of the most intimate sphere of life of the person on whom it reported, which was equally protected by the Convention, namely, the right to respect for his or her identity, protected by Article 8 as part of a person’s private life. The necessity to carry out such a weighing of interests was laid down in section 7 of the Media Act. 43. The Austrian courts had found that that the articles published by the applicant company constituted an intrusion into the strictly private life of Christian, a minor. In its judgment of 19 October 2004 the Regional Court had explained in detail that even though it was clearly permissible to publish an article on the events surrounding the handing over of Christian to his mother, and the conduct of the courts and authorities in this respect, this did not mean that in doing so the applicant company had the right to publish photographs of Christian that had not been rendered anonymous, showing him in a state of pain and despair, and to disclose his identity and other details of his family life, his health and his emotional state.", "The disclosure of such information on Christian was not relevant for the understanding of the details of the events of which he had been the victim, nor was it necessary in order to raise public awareness concerning the conduct of the authorities. In such cases the State had a positive obligation to ensure effective protection against breaches of the personal integrity of children, as a particularly vulnerable group. 44. Lastly, the Government argued that the amount of compensation awarded to Christian, namely EUR 130,000, was not disproportionate, as that figure had to be seen against the background of the wide dissemination of the information by the applicant company and its influence on public opinion. Christian had already been affected psychologically by the custody dispute between his parents, of which he was the victim, and, in this situation had been exposed by the applicant company to the curiosity of the millions of readers of its newspaper exclusively for the purpose of raising sales figures as a result of an one-sided emotive reporting.", "This had caused him additional and significant suffering. Another important factor was the extensive dissemination of the information and the inherently strong influence the applicant company’s newspaper had on public opinion. It had to be noted that the Kronen Zeitung reached (in 2006) 43.6% of the entire Austrian population – up to 60% of the population in some Länder – as readers, which, in relative terms, made it one of the newspapers with the highest circulation in the world. For this reason a significant amount of compensation had to be awarded by the Austrian courts. 2.", "The Court’s assessment (a) General principles 45. According to the Court’s well-established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation.", "This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999‑III). 46. An important factor for the Court’s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas, cited above, § 59, and as a recent authority, Flinkkilä and Others v. Finland, no.", "25576/04, § 73, 6 April 2010). By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and providing reliable and precise information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I, and, as a recent authority, Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009). 47.", "Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted (Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no.", "239; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010). 48. The Court has always stressed the contribution made by photographs or articles in the press to a debate of general interest (see Standard Verlags GmbH v. Austria (no.", "2), no. 21277/05 § 46, 4 June 2009, with further references). However, the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011, and Von Hannover v. Germany, no.", "59320/00, § 65-66, ECHR 2004-VI). Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover v. Germany, cited above, at § 59, and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007). 49.", "The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing court proceedings and on the manner in which decisions by the courts are enforced and, on the other, to the State’s positive obligations under Article 8 of the Convention to protect the privacy of persons, in particular minors, to whom such proceedings relate. When verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case – freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8 – the Court must balance the public interest in the publication of the information and the need to protect private life (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007-VII). The balancing of individual interests which may well be contradictory is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention (see MGN Limited, cited above, § 142, and Egeland and Hanseid v. Norway, cited above, § 55). (b) Application of these principles to the present case 50.", "In the present case the applicant company published in its newspaper Kronen Zeitung, between 7 January 2004 and 16 February 2004, a series of thirteen articles about a dispute between parents over custody of their child, Christian. In the custody proceedings the competent courts had refused to transfer custody of Christian to the father, who had refused to comply with that decision. Various attempts at enforcement were unsuccessful because Christian and his father had gone into hiding, and in January 2004 the competent court ordered that Christian be brought before the court by force. On 26 January 2004 court officers went to the house of Christian’s father and tried to seize the child, who cried and resisted. These scenes were the subject of wide media coverage, notably by the applicant company’s newspaper, because they were observed and photographed by several journalists, who had been informed and had hurried to the spot.", "The applicant company’s newspaper reported extensively on this case and the articles published disclosed Christian’s identity and details of his family life, his health and his emotional state, and they were accompanied by photographs of Christian that had not been rendered anonymous and which showed him in a state of pain and despair. 51. Thereupon, Christian brought proceedings under the Media Act against the applicant company, claiming compensation in respect of reporting constituting an intrusion into his strictly private life (section 7 of the Media Act) and reporting on the victim of a crime in a manner rendering that person recognisable by the public (section 7a of the Media Act). On 19 October 2004 the Vienna Regional Criminal Court found against the applicant company, ordering it to pay compensation and to publish the judgment in its newspaper. On appeal the Court of Appeal found on 21 September 2005 that the reporting at issue had been in breach of the obligation not to interfere with a person’s strictly private life, but rejected the other ground for compensation, namely, reporting on the victim of a crime in an identifiable manner, and remitted the case to the Regional Court on that point.", "On 19 May 2006 the Vienna Regional Criminal Court decided again on the case following the findings of the Court of Appeal, and reduced the compensation accordingly. The Court of Appeal upheld that decision except for costs on 14 March 2007. The Regional Court and the Court of Appeal considered that the reporting at issue had breached Christian’s right to respect for his strictly private life, and found that there had existed no predominant public interest in the revealing of his identity and giving details of his family life, his health and his emotional state, or the publishing of photographs taken at the time of the unsuccessful attempt to enforce the court’s order to hand him over to his mother showing him in a state of pain and despair. 52. In the Court’s view the reasons given by the Regional Court and upheld by the Court of Appeal were undoubtedly “relevant” reasons for the purposes of the necessity test to be applied under Article 10 § 2.", "It will next examine whether they were also “sufficient”. 53. The Court agrees with the domestic courts that the case concerned a balancing of the applicant company’s right to freedom of expression under Article 10 against Christian’s right to protection of his strictly private life. In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” (see, for instance, Flinkkilä and Others, cited above, § 83, and Eerikäinen and Others, cited above, § 66). Another important factor is whether the articles or photographs in the press contributed to a debate of general interest (see Flinkkilä and Others, cited above, § 76, and Eerikäinen, cited above, § 66).", "54. In the present case, Christian is not a public figure, nor does the Court consider that he has entered the public scene by becoming the victim of a custody dispute between his parents which attracted considerable public attention. 55. The Court further considers that the articles at issue dealt with a matter of public concern, namely the appropriate enforcement of custody decisions and whether and to what extent force may or should be used in this context. Such a matter could, and in the present case did, give rise to a public debate.", "However, given that neither Christian himself nor his parents were public figures or had previously entered the public sphere, it cannot be considered that the disclosure of his identity was essential for understanding the particulars of the case (see “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH (no. 2) v. Austria (dec.), no. 62746/00, 14 November 2002). In this connection, the Court notes that it was acceptable for the applicant company to report on all relevant details concerning the case of Christian, in particular as regards the problematic attempt to enforce the decision taken in the custody proceedings by the court officers on 26 January 2004, but not to reveal the identity of Christian while publishing the most intimate details about him, or publish a picture of him from which he could be recognised. 56.", "Moreover, the Court is not persuaded by the applicant company’s argument that the publication of the photograph which showed the pain in Christian’s face was necessary in order to ensure the credibility of the story. In this regard the Court reiterates that the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited, cited above, § 143, with further references). The Court considers that such considerations also apply to persons, like Christian, who are not public figures. 57.", "On the other hand, there is no doubt that the preservation of the most intimate sphere of life of a juvenile who had become the victim of a custody dispute and had not himself stepped into the public sphere deserved particular protection on account of his or her vulnerable position. 58. The Court has further to examine whether the interference with the applicant company’s right to impart information was proportionate. It notes in the first place that the applicant company was not subject to a fine imposed in criminal proceedings but was ordered to pay compensation for the injury caused to a person who had suffered from an intrusion into his strictly private life. However, the amount of compensation, EUR 130,000, is exceptional, and the Court observes in this connection that in specific circumstances an exceptional and particularly high amount of damages for libel (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 51, Series A no.", "316‑B, and Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 115, ECHR 2005‑V (extracts)), or unusually high cost awards in defamation proceedings (see MGN limited, cited above, § 217), may raise an issue under Article 10 of the Convention. 59. In the present case the applicant company reported on the case of Christian in a series of thirteen articles, each time repeating information on his strictly private sphere revealing intimate details of his life, his emotional state and his health, and repeatedly publishing photographs of him. Even though these news items had already become known to the public, at a certain point their frequent repetition was capable of creating a climate of continual harassment inducing in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover, cited above, § 59).", "60. Another element which has to be taken into account is the particularly wide circulation of the applicant company’s newspaper, which rendered the interference more intense. In this connection, the Government submitted, and this was not disputed by the applicant company, that (in 2006) the Kronen Zeitung reached 43.6% of the entire Austrian population, amounting to approximately eight million inhabitants – and up to 60% of the population in some of the Länder – as readers, which, in relative terms, makes it one of the newspapers with the highest circulation in the world. 61. Lastly, the Court has to examine whether in domestic law there existed adequate and effective domestic safeguards against disproportionate awards (see Independent News and Media and Independent Newspapers Ireland Limited, cited above, § 115).", "In this regard, the Court observes that a maximum amount for compensation in a single case is provided for in section 7(1) of the Media Act, which provides that damages must not exceed EUR 20,000. Moreover, section 6(1) of the Media Act contains clear guidelines for the fixing of the amount of damages, and provides, inter alia, that the compensation must not endanger the economic existence of the media owner. The Court considers that these safeguards are adequate and effective preventing disproportionate awards. The Court therefore concludes that the amount awarded in damages was not disproportionate in the particular circumstances of the case. 62.", "In sum, the Court finds that in awarding compensation for the interference with Christian’s private life by the applicant company, the respondent State acted within its margin of appreciation in assessing the need to protect his privacy. It is satisfied that the restriction on the applicant company’s right to freedom of expression resulting from the judgments of the Regional Court and the Court of Appeal was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed. 63. There has accordingly been no violation of Article 10 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 19 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ROMANIAK v. POLAND (Application no. 53284/99) JUDGMENT STRASBOURG 24 October 2006 FINAL 24/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Romaniak v. Poland, 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 3 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 53284/99) 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, Ms Wanda Romaniak (”the applicant), on 22 march 1999. 2. The applicant was represented before the Court by Mr T. Gaczyński and Mr M. Szewczyk, lawyers practising in Warszawa.", "The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant complained that the length of civil proceedings in her case had exceeded a reasonable time. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 6.", "By a decision of 9 September 2003 the Court declared the application admissible. THE FACTS THE CIRCUMSTANCES OF THE CASE 7. The applicant, Wanda Romaniak, is a Polish national, who was born in 1929 and lives in Głosków. A. Facts prior to 1 May 1993 8.", "On 17 September 1980 M.T. lodged a motion with the Warsaw District Court, claiming dissolution of a co-ownership which he shared with the applicant. The land in question consisted of two adjoining parcels and a building, which had been built as a result of the petitioner’s and the applicant’s financial contributions for the purpose of setting up a business. 9. On 3 April 1981 the Warsaw Regional Court issued a decision allowing M.T.", "to use part of the property pending the outcome of the proceedings. By the same decision, the court prohibited the destruction of any of the facilities in the building. 10. Subsequently, hearings were held on 1 September 1982, 8 October 1982, 28 January 1983, 13 February 1984, 9 May 1984, 29 October 1984, 19 December 1984 and 2 April 1985. 11.", "By a partial judgment of 29 April 1985 the Warsaw District Court ruled in favour of the applicant. 12. Upon appeal, on 28 April 1986 the Warsaw Regional Court quashed the decision of 29 April 1985. 13. Between 1986 and 1991 three hearings and one on-site inspection were carried out by the court.", "14. On 7 July 1990 the Ministry of Justice, following the applicant’s complaint about the length of the proceedings, examined the facts and considered the complaint justified, having found that an expert opinion had not been prepared within the time-limit fixed and that no efforts had been made by the court to discipline the experts. Therefore, the Ministry of Justice took the case under its administrative supervision. 15. On 23 April 1992 the Warsaw District Court issued a decision dissolving the co-ownership of the disputed property in favour of the applicant.", "The applicant was, however, obliged to pay-off the petitioner. 16. On 12 October 1992 and on 13 October 1992, the applicant and the petitioner, respectively, lodged appeals against the above-mentioned decision. 17. On 6 April 1993 the Warsaw District Court issued a decision forbidding the petitioner from taking down a fence.", "B. Facts after 30 April 1993 18. By a judgment of 7 May 1993 the Warsaw Regional Court set aside the decision of 23 April 1992 because of procedural mistakes committed in the proceedings and remitted the case to the first-instance court for re‑examination. 19. On 11 October 1993 the Warsaw Regional Court set aside the decision of 6 April 1993.", "20. On 16 March 1994 a hearing took place before the Warsaw District Court. 21. On 18 April 1994 the applicant’s lawyer withdrew from the case. 22.", "On 16 May 1994 new expert evidence was ordered. 23. On 15 November 1994 the expert report was submitted to the court. 24. On 3 March 1995 a hearing was held.", "25. On 7 April 1995 the Warsaw District Court stayed the proceedings because K.C., another co-owner of the property, had died and his legal successors had to be identified. 26. On 12 September 1995 the information about the legal successors was submitted to the court. On 29 October 1995 the District Court dismissed the request to resume the proceedings.", "On 15 February 1996 the Regional Court quashed this decision. 27. On 19 September 1996 the court decided to stay the proceedings pending the examination of a motion for the acquisition of the property by prescription, submitted by J.C. 28. On 25 November 1996 the court held a hearing in order to examine the applicant’s claim for the return of a part of the building already granted to her by previous judgments. 29.", "On 10 December 1996 the Warsaw District Court issued a decision prohibiting the petitioner from carrying out reconstruction works. 30. On 17 April 1997 the trial court dismissed the petitioner’s appeal against the decision of 10 December 1996. 31. On 20 May 1997 the applicant lodged a motion concerning two expert opinions and requested the court to resume the proceedings.", "32. On 2 July 1997 the Warsaw District Court resumed the proceedings. 33. On 29 September 1997 a hearing took place before the Warsaw District Court. The court ordered the preparation of an expert opinion.", "34. On 18 November 1997 the court held a hearing. 35. On 8 April 1998 H.S. submitted his expert opinion to the court.", "36. On 14 July 1999, upon the applicant’s request, the trial court ordered a supplementary opinion to be prepared by H.S. 37. On 3 November 1999 H.S. submitted the supplementary opinion.", "38. On 24 November 1999 a hearing was held. Neither the applicant’s curator nor her lawyer attended the hearing. 39. On 15 March 2000 a hearing was held.", "40. On 29 March 2000 the Warsaw District Court stayed the proceedings because two of the parties to the proceedings had died. 41. On 29 August 2000 the Warsaw District Court refused to resume the proceedings because the parties had failed to submit a decision confirming their inheritance rights. The proceedings were subsequently resumed on 5 January 2001.", "42. On 28 March 2001 a hearing was held before the Warsaw District Court. The court ordered the petitioner to submit, within 7 days, the decision confirming his right to inherit. 43. On 29 June 2001 a hearing was held before the Warsaw District Court.", "The court stayed the proceedings as the petitioner had failed to submit the decision confirming his right to inherit. 44. On 4 March 2003 the court resumed the proceedings. 45. On 4 June 2003 the court stayed the proceedings due to the death of one of the parties.", "46. On 24 October 2003 a hearing was held and the court heard witnesses. 47. On 2 April 2004 a hearing was held. The court summoned the applicant to submit her pleadings.", "On 21 April 2004 the court appointed an expert to prepare a plan for the division of the property. 48. At a hearing on 3 January 2005 the court heard witnesses. 49. On 12 January 2005 the court delivered a partial decision by which it partially dissolved the co-ownership of the property.", "50. The hearing scheduled for 3 August 2005 was adjourned due to the absence of the applicant’s curator. 51. On 18 November 2005 the parties, including the applicant, declared their intention to sell the property and to conclude a friendly settlement. The proceedings were stayed at their request.", "Neither of the parties has so far requested that the proceedings be resumed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. 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...” 53. The Government contested that argument 54.", "The period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question had not yet ended with the adoption of a final judicial decision. It has thus lasted over 13 years for two levels of jurisdiction. 55.", "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). 56. The Government submitted that the case was complex on account of the significant number of parties involved in the proceedings and the need to have recourse to expert reports. Furthermore, the case did not require to be processed with special diligence.", "The Government acknowledged that the applicant and her curator had not contributed to the delay in the proceedings apart from their failure to attend the hearing of 24 November 1999. The Government claimed that the authorities had shown due diligence in the case. They submitted that the court had been unable to speed up the submission of certain documents necessary to proceed with the case and, as a result, the proceedings had had to be stayed for over three years. The Government further claimed that the periods during which the proceedings had been stayed should be deducted from the overall period. 57.", "The applicant argued that the only difficulty in the case resulted from the fact that there had been several parties to the proceedings. The applicant claimed that the court had failed to exercise effective supervision of the experts, which had resulted in undue delays. She pointed out that the intervals between the hearings had been too long. Lastly, certain decisions to stay the proceedings had been erroneous. She recalled that the court had refused the parties’ request of 12 September 1995 to resume the proceedings and that this decision had been quashed only on 15 February 1996 (see paragraph 26 above).", "Further, the applicant claimed that the decision of 19 September 1996 to stay the proceedings pending examination of a motion for acquisition of the land by prescription had been unsubstantiated, since this property had not constituted a part of the estate covered by the proceedings at issue. 58. The Court notes that the number of parties to the proceedings and the death of some of them obviously increased the complexity of the case, but that does not suffice to draw the conclusion that the excessive length of the proceedings can be explained by their complexity. 59. The Court further reiterates that in civil proceedings the parties too must show \"due diligence\" (see the Pretto and Others judgment of 8 December 1983, Series A no.", "71, pp. 14-15, para. 33) and that only delays attributable to the State may justify a finding of a failure to comply with the \"reasonable time\" requirement (see, among other authorities, Proszak v. Poland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 40; Ciricosta and Viola v. Italy, judgment of 4 December 1995, Series A no. 337-A, p. 10, § 28). 60.", "In that connection, the Court considers that the applicant did not contribute in any substantive manner to the prolongation of the proceedings. 61. As to the conduct of the authorities the Court observes that in 1990 the Minister of Justice brought the case under its administrative supervision, finding that the applicant’s complaint about the length of the proceedings was justified. The Court further observes that delays in the proceedings often resulted from the slowness of the process of obtaining expert evidence. 62.", "The Court does not share the Government’s view that all the periods during which the proceedings were stayed should be deducted from the overall length of the proceedings. It notes the applicant’s argument, which the Government did not contest, that the grounds for staying the proceedings were often unsubstantiated (see paragraph 57 above). Having regard to the applicant’s age, the Court cannot accept the Government’s opinion that special diligence was not called for in the present case (see, mutatis mutandis, Dewicka v. Poland, no. 38670/97, § 55, 4 April 2000). 63.", "Lastly, the Court is of the view that the State cannot be held responsible for the period after 18 November 2005, following the parties’ request to stay the proceedings. Since that date the domestic court had to abide by the parties’ wish regarding the further continuation of the proceedings. Therefore, this period should not be taken into consideration. 64. 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. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 66.", "The applicant claimed PLN 2,032,231[1] in respect of pecuniary and non-pecuniary damage. 67. The Government contested the claim. 68. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, the Court considers that the applicant must have suffered non-pecuniary damage. Ruling on an equitable basis and having regard to its case-law in similar cases, it awards him EUR 7,000 under that head. B. Costs and expenses 69. The applicant did not seek to be reimbursed for any costs and expenses occurred in connection with the proceedings before the Court.", "C. Default interest 70. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousands euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3.", "Dismisses the remainder of the applicant’s claim for just satisfaction.] Done in English, and notified in writing on 24 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] Approximately EUR 512,930" ]

[ "FIRST SECTION CASE OF ANTROPOV v. RUSSIA (Application no. 22107/03) JUDGMENT STRASBOURG 29 January 2009 FINAL 29/04/2009 This judgment may be subject to editorial revision. In the case of Antropov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22107/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Dmitriy Viktorovich Antropov (“the applicant”), on 28 May 2003.", "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. The applicant alleged, in particular, that during his pre-trial detention after being charged with murder the police officers had handed him over to the family of the victim, who had tortured him. He furthermore complained that his allegations of torture have not been adequately investigated.", "He also alleged that he had been detained in appalling conditions in the pre-trial detention facility. 4. On 26 March 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 5. The applicant was born in 1971 and lives in Ussuriysk, Primorye Region. A. Criminal proceedings and the alleged ill-treatment 6. On 8 February 2001 the applicant, then a military officer, was detained on suspicion of having committed theft of spare parts for military ammunition and the murder of his accomplice G. His initial questioning was conducted without a lawyer because the applicant had signed a waiver stating that he was aware of his right to legal assistance and that his refusal was not due to financial reasons.", "7. On 16 February 2001 legal aid counsel was appointed to represent the applicant in the criminal proceedings. 8. From that date the applicant was detained in the Ussuriysk IZ-25/2 detention facility. During the first months of his detention he sent a number of letters to the prosecutor’s office complaining about the lack of progress in his criminal case and various procedural violations on the part of the investigator.", "In his letter of 1 June 2006, in particular, he indicated that the assistant of the military prosecutor of the Ussuriysk Garrison, investigator D., had made threats “to hand him over” to the family of G. to let them take revenge. 9. On 15 June 2001 at about 10 a.m. investigator D. checked the applicant out of the detention facility in order to take him to some unspecified site, allegedly for investigative actions. The applicant was transported by operative officers K. and T., both of whom were armed, and he was driven in T.’s personal car. They drove to 33 Lermontova Street on the outskirts of Ussuriysk, where the car stopped.", "K. and T. told the applicant that they were waiting for D. to join them before they could proceed to the place for the investigative action. While they were waiting, at 11 a.m. another car later described as a “Japanese make” pulled in. Several armed men got out, opened the door of T.’s car, forced the applicant out and loaded him into their car. K. and T. offered no resistance to their actions. According to the applicant, they even helped the men to push the applicant into their car.", "10. The armed men, who, the applicant maintained, were relatives of G., took the applicant to a house in the country and tortured him there until 5 p.m. the same day. According to the applicant, he was chained to a radiator pipe while the men took turns to administer blows with various objects, such as stools, benches and tools, burned him with cigarettes and crushed his fingers and toes. Every time the applicant passed out they would throw him under cold water until he recovered consciousness and then continued to torture him. Throughout the beatings they threatened to kill his family and demanded that he confess to the murder.", "At about 5 p.m. the men made an “anonymous phone call” to investigator D., telling him that he could collect the applicant from Frunze Street in Ussuriysk. The applicant was then brought to that street where D. found the applicant and took him back to the IZ-25/2 detention facility. In the detention facility the applicant underwent a medical examination which established multiple bruises, abrasions and burn marks on his body. He informed an operative officer, Major Kh., about the incident and on the following day sent a complaint, accompanied by the medical certificate, to the Ussuriysk Prosecutor’s Office. 11.", "On 30 September 2001 the applicant sent a complaint to the Prosecutor’s Office of the Dalnevostochniy Military Command that he had been ill-treated on 15 June 2001 and about the lack of follow-up to his complaint of 16 June 2008. He requested that criminal proceedings be instituted against the members of G.’s family and the officials who had handed him over. 12. On 19 November 2001 the applicant wrote to the Prosecutor’s Office of the Dalnevostochniy Military Command reiterating his complaints of ill-treatment on 15 June 2001 and about the absence of any follow-up to his earlier complaint. 13.", "On 4 February 2002 the applicant reiterated his complaint to the Prosecutor’s Office of the Dalnevostochniy Military Command. 14. On 13 February 2002 the Military Court of the Dalnevostochniy Command convicted the applicant of aggravated murder and of theft of military ammunition. He was sentenced to fourteen years’ imprisonment. The court in its judgment dismissed the applicant’s complaint of ill-treatment.", "The applicant appealed, claiming, inter alia, that the court had used the testimony obtained under duress and without a lawyer; that his detention had been extended unlawfully; and that during a considerable period of time the investigation had been inactive. He also complained of ill-treatment on 15 June 2001 and failure to investigate it. 15. On the same day the applicant received a reply from the Prosecutor’s Office of the Dalnevostochniy Military Command informing the applicant that an additional enquiry would be carried out as regards his complaint of ill-treatment. This was confirmed by another letter from the same prosecutor’s office on 22 February 2002.", "16. On 8 April 2002 the Prosecutor’s Office of the Khabarovsk Garrison opened a criminal investigation into the incident of 15 June 2001. 17. On 29 April 2002 the applicant sent a complaint to the Prosecutor’s Office of the Dalnevostochniy Military Command. He complained that the investigation in the criminal case concerning his ill-treatment had been belated and inefficient.", "He alleged that he still had not got access to any materials on the file and that even basic investigative steps had not been taken. 18. On 8 June 2002 the Prosecutor’s Office of the Khabarovsk Garrison discontinued criminal proceedings concerning the ill-treatment, relying on the statements of the following persons, who had been questioned: – the applicant, who reiterated the earlier submissions and the allegations against the members of G.’s family and the implicated officials, D., T. and K.; – investigator D., who denied handing the applicant over or making any prior threats to the applicant; he confirmed that there had been one occasion when he had allowed S.G., a relative of the deceased, to talk to the applicant in the interview room, but he had made no threats; – witness A., apparently also a member of G.’s family, who was present during the above conversation and who confirmed that S.G. did not threaten the applicant; – operative officer T. who submitted that on 15 June 2001 he was transporting the applicant together with K.; they stopped in Lermontova Street waiting for D. and were attacked by unknown persons who abducted the applicant; he stated that they had not expected to be attacked and had therefore offered no resistance; he had not received any instructions from D. to hand the applicant over to G.’s relatives; – S.G., the suspect in the applicant’s abduction, denied any knowledge of the incident; – witness N.K., apparently D.’s superior, submitted that D. had been negligent in having failed to organise adequate transport of the applicant, but was not responsible for him having been beaten up. As regards D., T. and K. it was established that they had been negligent in discharging their official duties but there had been no causal link between their negligence and the applicant’s injuries. Their prosecution for criminal negligence was therefore discontinued.", "The proceedings against S.G. and other relatives of G. were also discontinued on the grounds of lack of evidence against them. 19. On 6 December 2002 the Military Section of the Supreme Court of Russia upheld the applicant’s conviction but reduced the prison sentence to twelve years. The court of appeal found that there had been no procedural irregularities during the pre-trial investigation, that the applicant had been informed about his right to legal assistance and had waived it. The testimony given by the applicant was found to have been received in compliance with the procedural rules.", "As to the alleged ill-treatment on 15 June 2001, the court of appeal referred to it as “acts of unidentified individuals”. It held that there was no connection between this episode and the applicant’s criminal conviction because the applicant had confessed to the murder before the events of 15 June 2001. 20. On 22 December 2002 the applicant lodged a complaint with a court alleging, among other complaints, ill-treatment and inaction by the prosecutor’s office following his complaints. 21.", "On 5 February 2003 the Military Court of Ussuriysk Garrison examined this complaint and dismissed it. The court found that the prosecutor’s office had conducted an investigation of the episode of ill-treatment and considered it thorough and sufficient. The applicant appealed. 22. On 18 February 2003 the applicant was informed that criminal proceedings against investigator D., operative officers T. and K. and members of G.’s family had been discontinued.", "He sent a complaint to the Military Prosecutor’s Office of the Khabarovsk Garrison requesting access to the file relating to the discontinued criminal proceedings. In reply, on 17 March 2003, he was informed that there had been no grounds to reconsider previous decisions taken in respect of his complaints. 23. On an unspecified date the applicant challenged the closure of the criminal investigations of the ill-treatment before a court. On 14 April 2003 the court dismissed the applicant’s claim, finding that the decision to discontinue prosecution of the officers and G.’s relatives had been lawful and reasonable.", "The applicant submitted that on 10 June 2003 he had appealed against this decision. 24. On 7 August 2003 the Military Court of the Dalnevostochniy Command examined the applicant’s appeal against the decision of 5 February 2003, reversed the latter decision and decided to discontinue the proceedings on the grounds that the applicant’s complaint was in fact a request for a supervisory review. On 13 March 2006 the same court examined the applicant’s request for a supervisory review of the decision of 5 February 2003 and rejected it having found that the applicant’s complaints were in essence an expression of his disagreement with his conviction. 25.", "On 17 March 2006 the same court examined and rejected the applicant’s request for supervisory review of the decision of 14 April 2003. It upheld the earlier judicial assessment and the decision to discontinue criminal proceedings concerning the applicant’s ill-treatment. B. Conditions of the applicant’s detention 26. The applicant was detained in the Ussuriysk no.", "IZ-25/2 detention facility: – from 16 February to 15 June 2001 in cell no. 76, which measured 42 square metres; – from 15 June 2001 to 5 March 2003 in cell no. 72, which measured 16.8 square metres (except for several short-term transfers to other facilities for the purposes of the criminal proceedings and an eight-month transfer to Moscow for the appeal hearing); – from 27 February to 3 March 2003 in cell no. 11, which measured 21.4 square metres. 27.", "The conditions in the IZ-25/2 facility are partly in dispute between the parties. 28. According to the applicant, the cells were overcrowded and there was a shortage of sleeping places; the inmates slept on the concrete floor, huddled together to keep warm; there had been no, or insufficient, heating; the facility was overrun by rats; the light and water supply were often interrupted. In support of his claims he provided a copy of his letter to the Ussuriysk Prosecutor’s Office dated 16 June 2001. In this letter the applicant complained that he was detained in cell no.", "76, which was extremely overcrowded. He indicated that he shared the cell with thirty-eight other detainees and that there had not been enough beds or mattresses and that “everybody slept on the bare floor”. 29. The Government submitted that the information on the number of inmates in the cells in the relevant period was not available because the registration logs for that period were destroyed on 5 March 2007, after the expiry of the term of their storage in archives. However, relying on the certificate by the director of the facility, issued on 28 May 2007, and by the warden reports, issued on of 29 May 2007, they contended that the conditions in the facility were satisfactory and that the number of detainees in each cell did not exceed the number of sleeping places.", "The Government submitted that the applicant had an individual bunk and was provided with bedding. All cells were disinfected on a “regular basis”. The sanitary and hygienic conditions in the facility were in conformity with the regulations. All cells were equipped with a lavatory pan and sink. The pan was separated from the living area by a one-metre-high partition wall with a curtain.", "30. The Government submitted a copy of the sanitary inspection report issued on 1 July 2002 by the Department of Sanitary and Epidemiological Control of the Chief Penitentiary Department of the Ministry of Justice in respect of facility no. IZ-25/2. The report contained a detailed questionnaire filled in by the sanitary inspectors in the presence of the facility administration and, inter alia, stated that: – the facility was designed for 720 inmates; – at the time of inspection there were 1,245 inmates; – personal living space in the cells was 2.31 square metres for male inmates (§ 4.1); – individual sleeping facilities and bedding were available for 50% of inmates (§§ 4.12 and 4.14); – there were insects and rodents in the facility (§ 4.18); – sanitary facilities in living quarters were insufficient and dilapidated (§ 5.6). II.", "RELEVANT DOMESTIC LAW 31. 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. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries.", "Each inmate should have no less than four square metres of personal space in his or her cell. III. RELEVANT INTERNATIONAL DOCUMENTS 32. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b.", "temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.", "... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.", "... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf.", "paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint.", "At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANT’S ILL-TREATMENT ON 15 JUNE 2001 33. The applicant complained that on 15 June 2001 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation into those events.", "The Court will examine this complaint from the standpoint of the State’s negative and positive obligations flowing from Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 34. The Government confirmed that on 15 June 2001 the applicant was abducted and ill-treated and that he had sustained the injuries he claimed, contesting, however, any involvement of state officials in the infliction of injuries. The Government found it impossible to conclude that the applicant’s rights guaranteed under Article 3 of the Convention had been violated as a result of any acts or omissions on the part of the state bodies or officials. They relied on the domestic decisions, which found no grounds for the prosecution of investigator D., or the convoy officers, or the relatives of G., at whom the applicant pointed as perpetrators.", "The Government considered that the authorities could not be held responsible for the assault of the “unidentified individuals”. 35. The applicant maintained his allegations, pointing out that without the consent of D., T. and K. his abduction would not be possible. Moreover, he considered that the investigation of these events was entirely inadequate, as it was open more than nine months after the ill-treatment and, apart from questioning the implicated persons, did not involve any steps aiming at establishing the culprits. B.", "The Court’s assessment 1. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) Alleged ill-treatment 37. The Court has held on many occasions that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; see also, mutatis mutandis, Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000-VII). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch, cited above, § 34, and Salman, cited above, § 100). 38. The Court observes, and it is common ground, that the applicant in the present case sustained injuries when he was transported from the place of his pre-trial detention to take part in an investigative action, thus in the custody of the State. The circumstances of the applicant’s abduction and ill-treatment, as described by the applicant, are not as such contested by the Government. What is in dispute between the parties is the existence of a link between the conduct of the officials in this situation and the infliction of injuries suffered by the applicant.", "The applicant maintained that the acts of ill-treatment were carried out by G.’s relatives with the consent and assistance of investigator D., who had arranged for the abduction. He also alleged negligence of the convoy officers T. and K. in that they had failed to protect him from the assault. The Government, on the other hand, did not accept responsibility on the part of these persons for the damage suffered by the applicant. 39. The Court notes that the applicant was taken out of the detention facility following the order of investigator D. who had allegedly requested the applicant’s presence at some unspecified site for undisclosed investigative actions.", "According to D., T. and K. the attack on the convoy and the applicant’s abduction had been a total surprise and that they were unable to put resistance or to track down the perpetrators. The Court, however, considers their account to lack credibility. First, the purpose of the applicant’s detour from the detention facility remains unclear because D. has not explained what investigative action was intended to be carried out, at what destination, or why the convoy had to stop and wait half way. T. and K., on their part, failed to explain their lack of attempts to offer resistance to the kidnappers, or to pursue them, or to report that they had lost the detainee they convoyed. Further incoherence may be observed in the account of the applicant’s return into custody later that evening.", "In particular, it remains unexplained why D., having received an “anonymous call” inviting him to collect the applicant at the designated address, did not seek assistance from his fellow policemen in arresting the kidnappers, but simply picked the applicant up and took him back to the detention facility. 40. The Court, however, does not need to resolve doubts as to the extent of D., T. and K.’s involvement in the applicant’s abduction for the following reasons. 41. The Court notes that the existence of professional negligence on the part of these officials had been confirmed in the domestic proceedings (see paragraph 18 above).", "It furthermore considers, contrary to what the Government claimed, that the omissions on the part of the impugned officers had a direct causal link with the applicant’s injuries. Even assuming that the convoy fell an innocent victim of the “unidentified perpetrators”, as they contended, their professional duty required them to do everything possible to rescue the inmate in their charge. However, as mentioned above, they neither pursued the kidnappers nor reported the assault, having thus failed to take even the most obvious steps to prevent the kidnappers from taking the applicant away and ill-treating him. The Court therefore considers that even the “professional negligence” in transporting him, which has been acknowledged by the authorities, was a major contributor to the damage suffered by the applicant. For this reason, without having to examine whether the officials’ involvement in the abduction went further than mere negligence, the Court considers it established that there has been a failure to ensure the applicant’s security and that there has been a causal link between the authorities’ conduct and the applicant’s ill-treatment.", "42. The Court therefore considers that the Russian authorities failed to rebut the presumption of their responsibility for the injuries inflicted on the applicant while in charge of the State. Accordingly, the responsibility for the ill-treatment lies with the domestic authorities. 43. The Court shall further determine the form of ill-treatment inflicted on the applicant.", "In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, cited above, § 167). The fact that pain or suffering was inflicted with an intention to obtain information, inflict punishment or intimidate is a factor to be taken into account in deciding whether ill‑treatment amounted to torture (see Aksoy v. Turkey, 18 December 1996, § 64, Reports of Judgments and Decisions 1996-VI; Aydın v. Turkey, 25 September 1997, §§ 83-84 and 86, Reports 1997-VI; Selmouni v. France [GC], no. 25803/94, § 105, ECHR 1999-V; Dikme v. Turkey, no. 20869/92, §§ 94-96, ECHR 2000-VIII; Salman, cited above, § 114; and Batı and Others v. Turkey, nos.", "33097/96 and 57834/00, § 116, ECHR 2004-IV (extracts)). 44. The Court finds that in the instant case the existence of physical pain and suffering is attested by the medical report and the applicant’s statements regarding his ill-treatment at the hands of the kidnappers. The nature of injuries and the account of events indicate that the pain and suffering was inflicted on him intentionally, in particular with the view of extracting from him a confession to having committed the offence he was suspected of and of taking revenge on him. 45.", "In such circumstances, the Court considers that the violence inflicted upon the applicant was of a particularly serious nature, capable of provoking severe pain and cruel suffering which fall to be treated as acts of torture for the purpose of Article 3 of the Convention. 46. In the light of the above, the Court concludes that there has been a violation of Article 3 of the Convention. (b) Alleged failure to carry out an effective investigation 47. 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, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others, 28 October 1998, § 102, Reports 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 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 authorities concerned must act with exemplary diligence and promptness (see, for example, Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005). 48.", "Turning to the present case, the Court notes that immediately after the incident of 15 June 2001 the applicant lodged a complaint with the prosecutor’s office, in which he alleged ill-treatment and requested a criminal investigation to be opened. This complaint was accompanied by a medical certificate attesting his injuries. On 30 September 2001, on 19 November 2001 and on 2 February 2002 he reiterated his complaint to the prosecutor’s office and on 13 February 2002 he made the same complaint to the court hearing his criminal case. However, the investigation was not opened until 8 April 2002, that is more than nine months later. 49.", "The Court considers that the medical evidence and the applicant’s complaints together raised a reasonable suspicion that his injuries could have been a result of a criminal offence against the applicant, possibly with the involvement of the officials or their failure to ensure his safety in the custody of the State. It therefore finds that a procedural obligation arose to investigate the applicant’s allegation of ill-treatment as soon as he brought the matter before the authorities concerned, namely the prosecutor’s office and the detention facility. However, the investigation was only opened more then nine months after the events complained of, and there is no reasonable explanation for this delay. The case was eventually investigated by the Prosecutor’s Office of the Khabarovsk Garrison in criminal proceedings which, despite their lateness, were not necessarily doomed to failure, since the file already contained ample evidence. However, this inquiry has been far from satisfactory.", "It does not appear that there have been any attempts to gather evidence or to clarify the circumstances of the applicant’s abduction and ill-treatment. The decision of 8 June 2002 by which the criminal proceedings were discontinued contained little more than a statement that none of the persons accused by the applicant had confessed to the kidnapping. When questioned they were not required to provide any specific information relevant to the abduction. It is striking, in particular, that D., T., and K. were not questioned about the vehicles in which the applicant had been kidnapped or returned, that no description of perpetrators was drawn, that there had been no identification parade with the relatives of G. before T., and K. or any search at their premises. Moreover, D., T. and K. were not required to specify the purpose of the applicant’s detour from the detention facility, or to explain their own actions following the abduction in order to verify the allegations of their involvement.", "50. The above deficiencies of the investigation have never been pointed out by the reviewing bodies, including the courts. 51. Accordingly, in view of the lack of promptness and thoroughness in following up the applicant’s complaints, there has also been a violation of Article 3 of the Convention on account of the lack of an effective investigation of the incident of ill-treatment. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION 52. The applicant complained that the conditions of his detention in the Ussuriysk IZ-25/2 detention facility were in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 53. The Government argued that the applicant had not exhausted domestic remedies available to him. In particular, he had not complained to a prosecutor about the conditions of his detention. The Government further commented on the conditions of the applicant’s detention.", "In particular, they submitted that the applicant had been detained in satisfactory sanitary conditions. Relying on certificates issued by the facility director, they pointed out that the applicant had not been detained in overcrowded cells. At all times he had had an individual sleeping place. The Government submitted that they were not in possession of any documents showing the names and exact number of inmates in the cells in which the applicant had been detained because the logs had been destroyed after the expiry of the archive time-limits. 54.", "The applicant maintained his complaints. He relied on the sanitary report of 1 July 2002, provided by the Government, which, as he alleged, confirmed the existence of overcrowding, the lack of sleeping facilities and unsatisfactory sanitary situation in the facility. B. The Court’s assessment 1. Admissibility 55.", "The Court notes the Government’s argument that the applicant failed to complain to a prosecutor about the appalling conditions of his detention. In this connection, the Court observes that it has already on a number of occasions examined the same objection by the Russian Government and dismissed it. In particular, the Court held in the relevant cases that the Government had not demonstrated what redress could have been afforded to the applicant by a prosecutor, a court, or another State agency, bearing in mind that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not concern the applicant’s personal situation alone (see Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and most recently, Andrey Frolov v. Russia, no.", "205/02, § 39, 29 March 2007, and Sudarkov v. Russia, no. 3130/03, § 39, 10 July 2008). The Court sees no reason to depart from that finding in the present case. Moreover, it notes that the applicant in the present case had in fact complained to the prosecutor’s office (see his complaint of 16 June 2001 referred to in paragraph 28 above), which did not appear to yield any response. The Court therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.", "56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 57.", "The Court notes that the parties have disputed certain aspects of the conditions of the applicant’s detention in the Ussuriysk IZ-25/2 detention facility. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government did not refute. 58. The focal point for the Court’s assessment is the living space afforded to the applicant in the detention facility. The main characteristic which the parties did agree upon was the size of the cells.", "However, the applicant claimed that the cell population severely exceeded their design capacity. The Government argued that the applicant had not been detained in the overcrowded cells and that at all times he had had an individual bunk. 59. In this connection, the Court reiterates that Convention proceedings, such as those arising from the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on 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 Ahmet Özkan and Others v. Turkey, no.", "21689/93, § 426, 6 April 2004). 60. The Court notes that the Government in their contestation of the applicant’s complaint of overcrowding were unable to rely of the facility’s registration logs claiming that they had been destroyed. However, the sanitary report of 1 July 2002 provided by the Government supported the applicant’s allegations, rather than their own, because it stated that only 50% of inmates had had individual sleeping facilities. The Court further notes that the same sanitary report stated that the facility was overfilled by almost twice its capacity and that living space per inmate was as little as 2.31 square metres.", "It also confirmed the presence of insects and rodents in the facility, as well as the poor state of the sanitary equipment. 61. Having regard to the principle cited above, together with the fact that the Government did not submit any relevant information in support of their claim, the Court will examine the issue concerning the number of inmates in the cells in facility no. IZ-25/2 on the basis of the applicant’s submissions. 62.", "According to the applicant, the cells were severely overcrowded at all times. Although he did not indicate how the allocation of the living space changed throughout the period of detention, the Court notes that in June 2001 he allegedly shared a cell measuring 42 square metres with 38 other detainees and was not provided with an individual sleeping place. The sanitary report drawn a year later, in July 2002 (see paragraph 30 above), shows an only marginal increase in living space and stated that there were only half as many sleeping places as they were detainees in the facility. The Court concludes that in the reference period the applicant was allowed about 2.31 square metres of personal space, even less on some occasions, and that there was a clear shortage of sleeping places. 63.", "Irrespective of the reasons for the overcrowding, the Court reiterates that it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). 64. The Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees. In this connection, the Court reiterates that in a number of cases in which detained applicants usually had less than three and a half square metres of personal space it has already found that the lack of personal space afforded to them was so extreme as to justify, in its own right, a violation of Article 3 of the Convention (see Kantyrev v. Russia, no.", "37213/02, §§ 50-51, 21 June 2007; Igor Ivanov v. Russia, no. 34000/02, §§ 37-38, 7 June 2007; Benediktov v. Russia, no. 106/02, §§ 36-38, 10 May 2007; Andrey Frolov, cited above, §§ 47-49; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. Russia, no. 62208/00, § 44, 16 June 2005, among others).", "The Court also found that the problems arising from overcrowding in Russian pre-trial detention facilities were of a structural nature (see Moiseyev, cited above; Kalashnikov, cited above; and Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). 65. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for more than two years was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.", "66. Furthermore, while in the present case it cannot be established “beyond reasonable doubt” that the heating or sanitary conditions in the facility were unacceptable from the standpoint of Article 3, the Court nonetheless notes that presence of insects and rodents in the facility, as well as the dilapidated state of the sanitary equipment, are relevant in addition to the focal factor of the severe overcrowding, and show that the applicant’s detention conditions went beyond the threshold tolerated by Article 3 of the Convention (see Novoselov v. Russia, no. 66460/01, § 44, 2 June 2005). 67. The Court finds accordingly that there has been a violation of Article 3 of the Convention because the applicant was subjected to inhuman and degrading treatment on account of the conditions of his detention from 16 February 2001 to 5 March 2003 in the Ussuriysk IZ-25/5 facility.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 68. Lastly, the applicant complained under Article 5 §§ 1 (a) and 3 (c) that his pre-trial detention had been both unlawful and excessively long. He also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings and about of shortfalls in the trial, as well as in the investigation of his criminal case, and the courts’ failure to remedy them. Under Article 6 § 3 (c) and (d), he complained that his right to defence and adequate time to prepare his defence had been violated.", "Under Article 4 § 1 of Protocol No. 7 he complained that he had been punished twice for the same offence, referring to the allegedly wrongful interpretation of some counts of his conviction. 69. 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 71. The applicant claimed 112,500 Russian roubles in respect of pecuniary damage sustained as a result of his detention on criminal charges, including alleged damage to his flat while he was in detention.", "He also claimed 300,000 euros (EUR) in respect of non-pecuniary damage sustained as a result of violation of his Convention rights. 72. The Government contested the applicant’s claims as unsubstantiated and excessive. 73. The Court notes that the applicant’s claim for pecuniary damage relates to the complaints that have been found inadmissible (see paragraphs 68-69 above); it therefore rejects this claim.", "The Court further observes that it has found serious violations of Article 3 of the Convention in the present case, most importantly torture. In these circumstances, it considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 22,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 74. The applicant requested the Court to reimburse him the expenses incurred in the proceedings before the Court but did not indicate the amount sought. 75. The Government contended this claim as unsubstantiated. 76.", "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. Having noted that the applicant’s request contained no particulars and was not accompanied by any supporting documents, the Court dismisses the claim under this head. C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints under Article 3 concerning the ill-treatment of the applicant, the lack of effective investigation thereof and the conditions of the applicant’s detention in facility no. IZ-25/5 in Ussuriysk 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 ill-treatment inflicted on the applicant; 3. Holds that there has been a violation of Article 3 of the Convention on account of the failure to conduct an effective investigation into the applicant’s complaints about the ill-treatment; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 16 February 2001 to 5 March 2003 in facility no.", "IZ-25/5 in Ussuriysk; 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 22,000 (twenty-two thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that 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 29 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF BULGARU v. THE REPUBLIC OF MOLDOVA (Application no. 35840/09) JUDGMENT STRASBOURG 30 September 2014 FINAL 30/12/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bulgaru v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Johannes Silvis,Valeriu Griţco,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 9 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35840/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Ion Bulgaru (“the applicant”), on 18 June 2009. 2. The applicant was represented by Mr L. Chirtoaca, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular, that he had been subjected to severe police brutality and that the authorities had failed to carry out an adequate investigation into the incident, in breach of Article 3 of the Convention. 4. On 29 November 2010 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1982 and is currently detained in the Cricova prison. 6. At the time of the events, the applicant was serving a ten-year sentence and was detained in the same detention facility. In August 2008 a murder was committed there and the applicant was one of the suspects. In December 2008 he was taken to the Chişinău Central police station for questioning.", "According to him, he was told to confess to the murder and was ill-treated after refusing to do so. On 21 January 2009 the applicant was taken to the police station detention facility again. Since he refused to make a confession, he was subjected to such acts of violence as being struck and slapped all over, and was detained in a very cold cell. As a result, he attempted to commit suicide by cutting the veins in his wrist. On 23 January 2009 he was taken to hospital for medical treatment where, according to the documents in the case file, he was seen by a doctor and given stitches and a bandage.", "After returning from hospital the ill-treatment continued and intensified. According to the applicant, his arms and feet were tied together behind his back and he was suspended on a metal bar placed on two chairs. He was left in that position until he fainted. As a result, his right hand became numb and stopped functioning. He was also beaten on his lower back with a plastic bottle full of water.", "As a result, he suffered kidney pain and had blood in his urine. The Government disputed the applicant’s allegations concerning ill-treatment. 7. On 28 January 2009 the applicant was seen by a medical assistant in the police station detention facility, who noted in his medical records that the applicant had complained of pain around his right bicep and that the tissue in that area was swollen. On 30 January 2009 the same medical assistant noted that the applicant had complained of numbness and tingling in his right arm.", "On 31 January 2009 the same medical assistant concluded that the applicant’s problem was a result of the self-inflicted laceration to his ligament. 8. In the meantime, on 28 January 2009 the applicant’s family learned of his situation and employed a lawyer. As a result of the lawyer’s involvement, on 30 January 2009 the applicant was transferred back to Cricova prison. 9.", "On 12 February 2009 the applicant’s state of health deteriorated and he was hospitalised in a prison hospital, where he was examined by a neurologist and diagnosed with severe radial neuropathy of the right arm (damage to the radial nerve running down the length of the arm, which controls movement in the triceps and is responsible for extending the wrist and fingers). He was released from hospital on 9 April 2009, but returned later on several occasions. 10. In the meantime, the applicant’s lawyer complained to the prosecutor’s office that his client had been subjected to ill-treatment, but on 31 July 2009 the complaint was dismissed as ill-founded. The investigating authorities found the applicant’s allegations of ill-treatment to be ill-founded, in view of the absence of any physical evidence except for that resulting from his self-harm.", "In reaching this conclusion, the investigating authorities relied on the statements of the accused police officers, who denied ill-treating the applicant, and on the conclusion of the medical assistant from the police station detention facility (see paragraph 7 above). The findings of the doctors from the prison hospital (see paragraph 9 above) were not considered. II. RELEVANT DOMESTIC LAW 11. The relevant provisions of the Criminal Code read as follows: Article 309 Extorting of confessions (1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by up to three years’ imprisonment ... (2) The same act accompanied by: (a) violence; (b) cruel, inhuman or degrading treatment; ... Shall be punishable by three to eight years’ imprisonment...", "Article 3091 Torture (1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or statements ... shall be punishable by two to five years’ imprisonment... (3) The acts referred to in paragraph 1 ... carried out: (c) by two or more persons; (e) with the use of special instruments of torture or other objects adapted for that purpose; (f) by an official, shall be punishable by five to ten years’ imprisonment ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 12. The applicant complained of ill-treatment while in police custody and of a lack of an effective investigation in that regard. 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 13.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 14.", "The applicant submitted that he had been tortured during his detention and that the authorities had failed to properly investigate his complaint. 15. The Government contested the applicant’s allegations concerning ill-treatment, submitting that it was he who had cut the veins in his wrist and that the authorities had provided him with urgent medical care. 16. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies.", "Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII). 17.", "Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 61, Reports 1996‑VI; Selmouni cited above § 87). Where an individual has an arguable claim that he has been ill-treated or tortured while at the hands of agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, and without prejudice to any other remedy available in domestic law, a thorough and effective investigation. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that torture or ill-treatment has been used (see, among other authorities, Özbey v. Turkey (dec.), no.", "31883/96, 8 March 2001). The authorities must take into account the particularly vulnerable situation of victims of torture and the fact that people who have been subjected to serious ill-treatment will often be less ready or willing to make a complaint (see Aksoy cited above §§ 97-98). 18. 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, among other authorities, Indelicato v. Italy, no.", "31143/96, § 37, 18 October 2001, and Özgür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (see, Buzilo v. Moldova, no. 52643/07, § 30, 21 February 2012). 19.", "Turning to the facts of the present case, the Court notes that after the alleged ill-treatment, the applicant was hospitalised for almost two months in a prison hospital and that the doctors diagnosed him with severe radial neuropathy of the right arm (see paragraph 9 above). The initial diagnosis concerning the laceration to the applicant’s ligament as a result of his cutting his wrist, made by a medical assistant from the police station detention facility, was not confirmed. The applicant’s condition, which was not disputed by the Government, appeared to be consistent with his allegations concerning being tied up and suspended from a metal bar. Since the Government have failed to provide an explanation for this injury, the Court concludes that it was the result of ill-treatment while in police custody, namely a result of being tied up and suspended. 20.", "The Court considers this form of ill-treatment particularly reprehensible, as it presupposes an intention to obtain information, inflict punishment or intimidate. In such circumstances, the Court considers that the violence inflicted upon the applicant was of a particularly serious nature, capable of provoking severe pain and cruel suffering, and that it falls to be treated as acts of torture. Accordingly, there has been a violation of Article 3 of the Convention under its substantive head. 21. Lastly, the Court notes that after receiving the applicant’s complaint of ill-treatment, the prosecutor’s office did not even make reference to his hospitalisation between 12 February and 9 April 2009 and to the condition with which he was diagnosed at the hospital, but limited its investigation to the initial conclusion made by a medical assistant from the police station detention facility.", "In fact, the prosecutor’s office did not undertake any decisive steps to investigate the applicant’s complaint but was content to accept, without reservation, the statements of the accused police officers. It is therefore impossible for the Court to conclude that an effective official investigation took place. Thus, there has been a violation of Article 3 of the Convention under its procedural head as well. 22. Accordingly, there has been a violation of Article 3 of the Convention in both its substantive and procedural aspects.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 23. In his initial application, the applicant also complained under Articles 5, 6 and 13 of the Convention; however, he did not substantiate these complaints in his subsequent submissions to the Court. In such circumstances and in view of the materials in its possession, the Court does not discern any signs of a violation in respect of these complaints. Accordingly, they must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of pecuniary damage.", "26. The Government disagreed with the amounts claimed by the applicant and argued that they were unjustified and excessive. 27. Having regard to the violation found above and its gravity, the Court considers that an award for non-pecuniary damage is justified in this case and awards the applicant the entire amount claimed. As for the claim concerning pecuniary damage, the Court dismisses it in view of the lack of details provided by the applicant.", "B. Costs and expenses 28. The applicant did not make any claim in respect of costs and expenses. C. Default interest 29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 3 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention in both its substantive and procedural limbs; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be applicable, 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 30 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJosep CasadevallDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF KAVALIAUSKAS AND OTHERS v. LITHUANIA (Application no. 51752/10) JUDGMENT STRASBOURG 14 March 2017 FINAL 18/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kavaliauskas and Others v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 21 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 51752/10) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Lithuanian nationals, Mr Kristupas Kavaliauskas (“the first applicant”), Mr Martynas Kavaliauskas (“the second applicant”), Mr Romas Konstantinas Batūra (“the third applicant”) and Ms Danutė Butkienė (“the fourth applicant”) on 3 August 2010. On 6 June 2013 the fourth applicant died, and on 11 July 2016 the Court was informed that, as her heir, the second applicant had inherited all her pecuniary and non-pecuniary rights pertaining to the present application. 2. The applicants were represented by Mr B. Simanavičius, a lawyer practising in Vilnius.", "The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The applicants alleged that they had not received adequate compensation for their property and that the restitution process had been unreasonably lengthy, in breach of Article 1 of Protocol No. 1 to the Convention. 4.", "On 7 March 2016 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1972, 1980, 1937 and 1925 respectively and live in Vilnius. 6.", "On 5 November 1991 L.N. (who later died – the first and the second applicants became her heirs), the third and the fourth applicants asked the Lithuanian authorities to restore their property rights in natura to a house in Kaunas, nationalised in 1940s. 7. In September 1993 L.N., the third and the fourth applicants were asked by the authorities to provide some additional documents necessary to proceed with the restoration of their property rights. L.N.", "submitted the necessary documents to the Kaunas City Municipality. 8. In March 1995 L.N. and the fourth applicant agreed that the property rights to one room of the house would be restored to their brother – the third applicant. On 30 March 1995 the third applicant wrote a letter to the authorities, asking them to restore the property rights to 22.4 sq.", "m of the house and one room of 10.32 sq. m. He also asked to decide the question of the restoration of property rights to a remaining part of the house at a later stage. 9. By a decision of 11 April 1995, the Kaunas City Council restored L.N.’s, the third and the fourth applicants’ property rights to a house in Kaunas in equal parts. The Kaunas City Council held that 22.42 sq.", "m of the house would be returned to L.N., the third and the fourth applicant in natura in equal parts and that a room of 10.32 sq. m would be returned in natura to the third applicant. The decision also indicated that the remaining part of the house would be returned in natura when the tenants of the house had been provided with other premises, or compensation would be paid if the premises were not returned. 10. In July 1995 L.N.", "and the fourth applicant asked the authorities to pay them compensation for the part of the house that had not been returned in natura. 11. In March 1996 L.N., the third and the fourth applicants wrote a letter to the authorities, stating that they refused the property that had already been returned to them in natura, and asked to be paid compensation for the entire house. 12. In September 1996 the third applicant, who by an agreement approved by the notary in 1995, was representing L.N.", "and the fourth applicant, withdrew the application of March 1996 (see paragraph 11 above) and confirmed that 22.42 sq. m of the house and 10.32 sq. m had been returned to L.N., the third and the fourth applicant in natura. 13. On 23 September 1996 L.N., the third and the fourth applicants asked the authorities to pay them compensation for the part of the house that had not been returned to them in natura and stated that they agreed to partial compensation until the full market-value compensation figure had been calculated.", "14. Following the request of L.N., the third and the fourth applicants (see paragraph 13 above), the Kaunas City Municipality assessed the value of the entire house and on 8 October 1996 set it at 239,190 Lithuanian litai (LTL – approximately 69,274 euros (EUR)) in total, the third applicant signed for himself and as L.N.’s and the fourth applicant’s representative, signalling their agreement to such compensation. On the same day, the Kaunas City Board amended the decision of 11 April 1995, establishing that the remaining part of the house would not be returned, compensation of LTL 79,730 (approximately EUR 23,091) would be paid to L.N., the third and the fourth applicants each, and that the remaining part of the compensation would be paid when the market value of the house had been calculated. Following this decision, L.N., the third and the fourth applicants were paid compensation on 17 October 1996 and 18 October 1996. 1.", "Proceedings for annulment of the part of the decision to return the premises of 22.42 sq. m. in natura 15. On an unspecified date L.N., the third and the fourth applicants lodged a claim with the domestic courts in order to have the part of the decision of the authorities of 11 April 1995 by which the premises of 22.42 sq. m of the house had been returned to them in natura annulled. 16.", "On 24 October 2000 the Kaunas Regional Administrative Court decided to annul the part of the decision of 11 April 1995 by which 22.42 sq. m of the house had been returned in natura and to oblige the Kaunas City Board to pay monetary compensation for this property. 17. Accordingly, on 18 September 2001 the decision of the authorities of 11 April 1995 was amended and it was decided to pay monetary compensation for the 22.42 sq. m of the house.", "18. The value of the property was calculated on 14 April 2008. On 1 June 2009, in accordance with an application by L.N., the third and the fourth applicants to receive compensation for 22.42 sq. m of the house, LTL 30,000 (approximately EUR 8,689) in total were paid to them. 2.", "Procedure of calculation of the remaining compensation 19. In November 2006 the Kaunas City Municipality Administration asked the Centre of Registers to assess the value of the house and to establish the difference between the value assessed and the compensation that had already been paid. In January 2008 the Centre of Registers assessed the market value of the house in 1996 at LTL 855,000 (approximately EUR 247,625) and established that the remaining compensation to be paid was LTL 615,809 (approximately EUR 178,350) in total. 20. On 19 March 2008 the authorities amended the decision of 11 April 1995 and established that L.N., the third and the fourth applicants had to be paid compensation amounting to LTL 615,809 (approximately EUR 178,350) in total.", "21. On 26 March 2008 L.N., the third and the fourth applicants were asked to fill in a form in order to receive their compensation; they did so on 1, 20 and 4 April 2008 respectively. The compensation was adjusted in line with the inflation index and amounted to LTL 818,458 (approximately EUR 237,042) and was paid on 17 July 2008. Each person received LTL 272,819 (approximately EUR 79,014). 3.", "Proceedings for annulment of calculation of the remaining compensation 22. On an unspecified date L.N. died, and the first, the second applicants, who became her heirs, the third and the fourth applicants lodged a claim with the Kaunas Regional Administrative Court, asking for the annulation of one part of the order of the authorities of 19 March 2008 (see paragraph 20 above), and to oblige the authorities to calculate the remaining compensation as well as the compensation that had already been paid in accordance with the market price of the house in 2008. They also asked to be awarded damages. 23.", "On 9 March 2009 the Kaunas Regional Administrative Court decided to annul one part of the decision of the authorities of 19 March 2008 and to oblige the authorities to recalculate the compensation for the remaining part of the house in accordance with the market value in 2008. The court decided to reject the claim for damages as no unlawful acts by the authorities had taken place. 24. The applicants appealed, and on 29 March 2010 the Supreme Administrative Court partly overturned the decision of the court of first instance. It referred to a similar case of the same court where it had held that the value of the property had had to be assessed in the light of values when the decision to restore property rights had been taken, and that the assessment of the value at a later stage might have created grounds for unjust enrichment.", "The Supreme Administrative Court also referred to the same case where it had held that although the authorities had not taken the necessary actions to calculate the remaining part of the compensation from 22 October 1996 until 28 April 2008, these had not been appropriate grounds for annulling the decision of the authorities to pay the remaining part of the compensation. The remaining part of the decision of the court of first instance was left unchanged. II. RELEVANT DOMESTIC LAW AND PRACTICE 25. Article 23 of the Constitution reads: “Property shall be inviolable.", "The rights of ownership shall be protected by law. Property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated.” 26. The Law on the Procedure and Conditions for the Restoration of Citizens’ Ownership Rights to Existing Real Property (Įstatymas „Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų“ – hereinafter “the Law on Restitution”), enacted on 18 June 1991 and amended on numerous occasions, provided for two forms of restitution – the return of the property in natura or compensation if physical return was not possible. At the time it was enacted, Article 8 of the Law on Restitution provided that monetary compensation had to be paid in accordance with the procedure established by the Government and within a period of ten years. 27.", "As from 26 April 1996, Article 8 of the Law on Restitution provided that monetary compensation had to be paid in accordance with the procedure established by the Government within a period of ten years and that compensation for the property had to be equivalent to its market value. 28. On 1 July 1997 the Seimas (the Lithuanian Parliament) enacted the new Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “the 1997 Law on Restitution”), which replaced the Law on Restitution of 1991. Article 16 of the 1997 Law on Restitution provided that the State had to compensate citizens for existing real property which had been compulsorily purchased by the State, as well as for real property which had been extant prior to 1 August 1991 but which had subsequently ceased to exist as a result of decisions taken by the State or local authorities. Compensation for residential buildings which were not returned in accordance with this Law, had to be established in accordance with the procedure approved by the Government.", "29. Point 2.1 of Government Resolution no. 336 of 8 March 1995 on the Procedure of Payment of Monetary Compensation for State Redeemable Residential Buildings (or Parts Thereof) (Lietuvos Respublikos Vyriausybės nutarimas “Dėl piniginės kompensacijos už valstybės išperkamus gyvenamuosius namus (arba jų dalis) mokėjimo tvarkos patvirtinimo” – hereinafter “Resolution no. 336”) provided that the value of residential buildings (their subdivisions or apartments) had to be index-linked, with a base date of 1 January 1995, to the consumer price index as applicable at the date of the assessment of value. 30.", "On 21 December 1998, the Government adopted Resolution no. 1455 issuing the Order on the Assessment of the Value of Property that has to be Compulsorily Purchased by the State, on Residential Buildings (or parts thereof) that have been Returned to their Owners, and on [Rented] Apartments (Lietuvos Respublikos Vyriausybės nutarimas “Dėl valstybės išperkamo iš savininkų turto bei sąvininkams sugrąžintų gyvenamųjų namų, jų dalių, butų, kuriuose gyvena nuomininkai, vertės nustatymo”), which annulled Resolution no. 336. 31. Point 2.1 of Government Resolution no.", "1456 of 21 December 1998 on the Procedure of Compensation for Citizens for State-Redeemable Residential Buildings, Or Parts Thereof or Apartments (Lietuvos Respublikos Vyriausybės nutarimas “Dėl atlyginimo pinigais piliečiams už valstybės išperkamus gyvenamuosius namus, jų dalis, butus tvarkos patvirtinimo”) established that the value of residential buildings, their subdivisions, and apartments for which compensation had already been paid before this Resolution entered into force, was not to be recalculated. 32. The Civil Code provides that damage caused by unlawful acts of public authorities must be compensated for by the State, irrespective of the fault of a particular public servant or other public-authority employee (Article 6.271). 33. The Supreme Administrative Court has noted that the principle of equal value was linked to the date of the adoption of the decision to pay monetary compensation.", "If the situation had been interpreted otherwise, it would create possibilities for unjust enrichment. The Supreme Administrative Court therefore held that in that case (no. A525-1539/2010) the property rights had been restored in 1996, and it would have been unjust to calculate the market value of the property during the proceedings of 2008 (decision of 17 February 2010). 34. In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of property rights in Lithuania essentially denoted partial reparation.", "In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts. 35. On 20 June 1995 the Constitutional Court affirmed that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”.", "The notion of restricted restitution was confirmed by the Constitutional Court several times (for example, on 4 March 2003, 5 July 2007). 36. For relevant domestic practice as to the principles of restitution in Lithuania and fair compensation, see Jasiūnienė v. Lithuania, no. 41510/98, § 22, 6 March 2003; Užkurėlienė and Others v. Lithuania, no. 62988/00, § 27, 7 April 2005; Jurevičius v. Lithuania, no.", "30165/02, § 20, 14 November 2006; Igarienė and Petrauskienė, cited above, §§ 24-25; Aleksa, cited above, §§ 37-38; Nekvedavičius v. Lithuania, no. 1471/05, §§ 29-31, 10 December 2013; Albergas and Arlauskas v. Lithuania, no. 17978/05, §§ 26-33, 27 May 2014; and Paukštis v. Lithuania, no. 17467/07, §§ 40-41 and 46-48, 24 November 2015. THE LAW I.", "PRELIMINARY QUESTION 37. The Court notes at the outset that the fourth applicant died while the application was pending before it. Her legal heir, the second applicant, has expressed his wish to continue the proceedings in her stead. The Government argued that the second applicant did not have the requisite standing under Article 34 of the Convention and that no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the application in respect of the fourth applicant existed. They therefore invited the Court to strike the application in respect of the fourth applicant out of the Court’s list of cases under Article 37 § 1 of the Convention.", "38. The Court recalls that in cases where an applicant had died in the course of the proceedings, it had previously taken into account the statements of the applicant’s heirs or close family members expressing the wish to pursue the proceedings before the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014; Fartushin v. Russia, no. 38887/09, §§ 31-34, 8 October 2015; and Paposhvili v. Belgium [GC], no. 41738/10, § 126, ECHR 2016).", "The Court therefore accepts that Mr Martynas Kavaliauskas, the second applicant, can pursue the application in so far as it had been lodged by the fourth applicant. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 39. The applicants complained under Article 1 of Protocol No.", "1 to the Convention that the State authorities had breached their rights by failing to grant them fair compensation for the house. They were also dissatisfied with the overall length of the restitution process in their case. Article 1 of Protocol No. 1 to the Convention provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Compatibility ratione materiae 40. The Government submitted that the applicants had no “possession” within the meaning of Article 1 of Protocol No. 1. They observed that the applicants did not contest the valuation of the house itself but they did contest the correctness of when the valuation had been done, and this did not concern any of their “existing possessions”.", "41. The Government further stated that the applicants’ claim could also not be regarded as having been based on a “legitimate expectation” because the relevant provisions of Lithuanian law had not allowed the applicants to have expected that they would have been paid compensation for part of the house at 2008 values and that the applicants could not have had a legitimate expectation to receive compensation at 2008 values rather than those of 1996. 42. The applicants disagreed. 43.", "The Court notes that as early as in 1995 the authorities acknowledged the right to restitution of property of L.N., the third and the fourth applicants (see paragraph 9 above). Even acknowledging that the essence of the applicants’ complaints relates to a set of decisions adopted by the authorities on the assessment of the value of the house and the calculation of compensation (see paragraphs 14, 18 and 19 above), the Court considers that the applicant’s had at least a legitimate expectation to obtain certain amount of compensation (see, for example, Gaina v. Lithuania, no. 42910/08, § 50, 11 October 2016, and compare and contrast with Romankevič v. Lithuania, no. 25747/07, § 45, 2 December 2014). The applicants’ other complaint is related to the duration of the restitution proceedings, which, in their case, lasted until 2010 (see paragraph 24 above).", "That being so, the Court rejects the Government’s objection that the complaints are inadmissible ratione materiae. 2. Exhaustion of domestic remedies 44. The Government argued that the applicants had failed to exhaust the domestic remedies with regard to their complaint about the overall delay in finalising the restitution process. The Government stated that the applicants could have started court proceedings, claiming non-pecuniary damages for the alleged delay in finalising the restitution process and they could have lodged a claim with the domestic courts asking them to oblige the authorities to act in due time.", "45. The applicants stated that their complaints were admissible. 46. The Court is unable to share the Government’s view that the applicants should have started new court proceedings for damages if they had considered the restitution process flawed on account of the authorities’ actions. It is the Court’s view that a new set of court proceedings would only have delayed the outcome of the restitution process without bringing any tangible result.", "47. Accordingly, the Court dismisses the Government’s objection that the applicants failed to exhaust domestic remedies. 3. Conclusion on admissibility 48. The Court 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 1. The amount of compensation (a) The parties’ submissions 49. The applicants alleged that the compensation for the house had been calculated incorrectly; they stated that it should have been calculated at 2008 values, when the order of the authorities to pay L.N., the third and the fourth applicants compensation amounting to LTL 615,809 (approximately EUR 178,350) in total had been issued (see paragraph 20 above).", "50. The Government stressed that the calculation of the compensation in question, having regard to the values at the time of the adoption of the decision to restore ownership rights by paying monetary compensation in 1996 (see paragraph 14 above), had arisen from the provisions of domestic law and the practice of the domestic courts. 51. The Government further stated that there had been a public interest in calculating the compensation using 1996 values, specifically to protect the rule of law, to avoid negative consequences to society and unfairness with regard to persons who had received prior compensation, as well as to avoid unjust enrichment of the applicants. 52.", "The Government also argued that the first part of the compensation had been paid to L.N., the third and the fourth applicants as early as 1996, and that the remaining compensation had been index-linked, which meant that they had received a larger amount of money. They also argued that owing to the absence of national legislation, the State had decided to pay part of the compensation to minimise the burden borne by the applicants. The Government also alleged that the State could reduce, even substantially, levels of compensation and that it did not have any obligation to calculate the remaining part of the compensation with regard to the property’s market value in 2008. (b) The Court’s assessment 53. The Court reiterates that while Article 1 of Protocol No.", "1 requires that the amount of compensation granted for property taken by the State be “reasonably related” to its value, the same rule does not apply to situations in which the compensatory entitlement arises not from any previous taking of individual property by the respondent State, but is designed to mitigate the effects of a seizure or loss of property not attributable to that State – in such situations, the State is even entitled to substantially reduce, the levels of compensation provided for by law (see Broniowski v. Poland [GC], no. 31443/96, § 186, ECHR 2004‑V, and Nekvedavičius v. Lithuania (just satisfaction), no. 1471/05, § 19, 17 November 2015). The Court has also held that in regulating the restitution process the Contracting States have wide discretion, including over the rules of how compensation for long-extinguished property rights should be assessed (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003; Bergauer and Others v. the Czech Republic (dec.), no.", "17120/04, 13 December 2005; and Paukštis v. Lithuania, no. 17467/07, § 74, 24 November 2015). Lithuania has chosen the principle of partial restitution to rectify old wrongs (ibid., § 81, see also paragraphs 34 and 35 above) and market-value compensation has never been an option under Lithuanian law. 54. In numerous rulings that have already been analysed and accepted by the Court, the Constitutional Court held that fair compensation for property which could not be returned was compatible with the principle of the protection of property and that the notion of restitution of property rights in Lithuania essentially denoted partial reparation (see relevant case-law, cited in paragraph 36 above).", "The Court has also already accepted that Lithuania has chosen the principle of partial restitution to rectify old wrongs (see Paukštis, cited above, § 81). The Court finds that as the decision to restore the property rights of L.N., the third and the fourth applicants was taken on 11 April 1995 (see paragraph 9 above) and the first decision to pay L.N., the third and the fourth applicants partial compensation had been adopted on 8 October 1996 (see paragraph 14 above), the assessment of the value of the buildings was at the value that they had in that particular year. In this context the Court cannot accept the claim of L.N., the third and the fourth applicants that they should be compensated for the full market value of the buildings, since no such right had been guaranteed to them under the applicable domestic law or in the judgment of 29 March 2010 (see paragraph 21 above; see also, mutatis mutandis, Nekvedavičius (just satisfaction), cited above, § 20). The Court thus finds no reason to conclude that the compensation calculated was not pertinent. 55.", "Finally, having regard to the margin of appreciation that Article 1 of Protocol No. 1 affords national authorities (see paragraph 53 above), the extensive jurisprudence of the domestic courts (see relevant case-law, cited in paragraph 36 above) and the line of reasoning that the Court has already taken regarding restitution of property in Lithuania (see Paukštis, cited above, § 81), from which it sees no reason to depart, the Court considers that as a result of the amount of compensation paid to L.N., the third and the fourth applicants, they did not have to bear a special and excessive burden. 56. It follows that there has been no violation of Article 1 of Protocol No. 1 to the Convention with respect to this part of the application.", "2. Overall length of the restitution proceedings (a) The parties’ submissions 57. The applicants lastly complained that even though the restitution application had been submitted in 1991, the final part of the compensation was paid only in 2009 (see paragraphs 6 and 18 above). 58. The Government admitted that the restitution process in the applicants’ case had been lengthy but they claimed that this process had been extremely complicated in Lithuania.", "The Government further noted that since the first decision to pay L.N., the third and the fourth applicants partial compensation had been adopted on 8 October 1996 (see paragraph 14 above), the relevant legislation had been amended and a new requirement to pay compensation for residential buildings reflecting market value was included. The authorities could no longer follow the previous procedure for the calculation of compensation and the values calculated by these two procedures also differed. This is why the authorities chose to pay partial compensation in 1996. The Government also stated that in 1997 the Law on Restitution had been enacted and that it had complicated the situation even more because there had been no provisions establishing that compensation for residential buildings should have been calculated in accordance with market values. The relevant legal provisions had been enacted later, but there had been no funds in the State budget to pay compensation until 2008.", "59. The Government further argued that the public authorities had acted in due time. They also stressed that the applicants had been aware that the restitution process in their case was to have been conducted in parts and that they were to have been paid the first part of the compensation in 1996 and the remaining part in 2008. The Government also argued that in accordance with the provisions of domestic law, the compensation had to be paid not later than within ten years from the adoption of the decision to restore property rights (see paragraph 27 above). This deadline was later set at 1 January 2011, and the remaining part of the compensation was paid well before the deadline, i. e. in 2008 (see paragraph 21 above).", "60. Lastly, the Government noted that the restitution process had been partially delayed owing to the behavior of L.N., the third and the fourth applicant because they had altered their restitution claim several times (see paragraphs 11, 12 and 15 above) and they had failed to submit the necessary documents to the relevant authorities in due time. (b) The Court’s assessment 61. The Court reiterates that the present case in general concerns restitution of property and is not unmindful of the complexity of the legal and factual issues a State faces when resolving such questions (see Velikovi and Others v. Bulgaria, nos. 43278/98 et al., § 166, 15 March 2007, and Paukštis, cited above, § 84).", "It follows that certain impediments to the realisation of the applicants’ right to the peaceful enjoyment of their possessions are not in themselves open to criticism (see Igarienė and Petrauskienė v. Lithuania, no. 26892/05, § 58, 21 July 2009, and Paukštis, cited above, § 84). Even so, the Court has emphasised that that uncertainty – be it legislative, administrative or arising from the practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue that is in the general interest is at stake, it is incumbent on the public authorities to act in good time and in an appropriate and consistent manner (see Paukštis, cited above, § 84; and Beyeler v. Italy [GC], no. 33202/96, §§ 110 in fine, and 120 in fine, ECHR 2000-I).", "62. In the applicants’ case, the Court finds it established that the decision to restore L.N.’s, the third and the fourth applicants’ property rights by paying partial monetary compensation was taken by relevant authorities on 8 October 1996 (see paragraph 14 above). The first part of the compensation was subsequently paid in 1996. 63. That being so, although the Court agrees with the Government that there were certain ambiguities in the domestic law which precluded the authorities from dealing with the applicants’ restitution requests swiftly (see paragraph 58 above), nevertheless, the Court takes notice of the period of inactivity of the State authorities from 1996 to 2006 with regard to calculation of the remaining part of the compensation (see paragraphs 14 and 19 above).", "The Court also notes that this remaining part of the compensation was only calculated and paid in 2008 (see paragraph 19 above). 64. As regards the remainder, the Court does not overlook the fact that the court proceedings – instituted by L.N. and the third and fourth applicants seeking the annulment of the part of the decision of 11 April 1995 by which 22.42 sq. m of the property had been returned in natura – protracted the restitution process in their case (see paragraph 15 above).", "It notes, however, that the decision to pay compensation for those 22.42 sq. m was taken by the authorities in 2001 (see paragraph 15 above), but that the compensation for that part was not paid until 2009. 65. The Court has already held that a lack of funds may not be cited as a reason for the authorities’ failure to comply with their obligations (see, mutatis mutandis, Prodan v. Moldova, no. 49806/99, § 53, ECHR 2004‑III (extracts)), and has also found a violation of Article 1 of Protocol No.", "1 to the Convention in cases where the failure to pay resulted from a parliament’s failure to provide for the necessary means in the State budget (see, mutatis mutandis, Voytenko v. Ukraine, no. 18966/02, §§ 41-43, 29 June 2004, and Dolneanu v. Moldova, no. 17211/03, § 31, 13 November 2007). As a result, the Court finds that the Government’s argument about the lack of resources (see paragraph 59 above) cannot justify the protraction of the restitution process in the applicants’ case. 66.", "Lastly, although the Court accepts that some part of the overall delay of the restitution process falls on the applicants, however it considers that the changes in their position as to the form of restitution (see paragraphs 11, 12 and 15 above), cannot justify the whole length of the process. 67. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention in this regard. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 69. The applicants claimed EUR 1,784,460 in respect of pecuniary damage, corresponding to the market value of the house in 2008 and to the rental payments that they had allegedly not received from May 1995 until August 2016.", "They submitted supporting documents as to the market value of the house in 2008 only, showing that it had been EUR 1,018,400. 70. The applicants also claimed EUR 450,000 in total in respect of non-pecuniary damage for the distress caused by the delays in the restitution process. 71. The Government submitted that the valuation report provided by the applicants was inaccurate and, as regards the rental payments, the applicants had never acquired a right to rent out the house in question, therefore, they had never been entitled to such payments.", "72. The Government further submitted that the amount requested by the applicants in respect of non-pecuniary damage was excessive, unreasoned and unsubstantiated. 2. The Court’s assessment 73. The Court did not find a violation of Article 1 of Protocol No.", "1 to the Convention in respect of the size of the compensation awarded to the applicants in the restitution process; therefore, it rejects their claim in respect of pecuniary damage. 74. As to non-pecuniary damage, the Court considers that the applicants undoubtedly suffered distress and frustration resulting from the delays in the restitution process. However, it finds the amount claimed by them excessive. Making its assessment on an equitable basis the Court awards the applicants EUR 6,000 jointly in respect of non-pecuniary damage.", "B. Costs and expenses 75. The applicants also claimed EUR 2,324 for costs and expenses, which included the cost of the valuation report, translation costs from English to Lithuanian and lawyer’s fees. 76. The Government submitted that the cost of the valuation report was excessive, that the applicants had not presented any evidence regarding the substance of the translation work and that they had not provided any documented agreement in respect of the provision of legal services.", "77. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria as well as the quality and the quantity of the observations submitted by the applicants, the Court considers it reasonable to award the sum of EUR 200 jointly for the proceedings before the Court. C. Default interest 78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares that Mr Martynas Kavaliauskas has standing to continue the present proceedings in Mrs Butkienė’s stead; 2. Declares the application admissible; 3. Holds that there has been no violation of Article 1 of Protocol 1 to the Convention as regards the amount of the compensation granted to the applicants in the restitution process; 4. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention as regards the overall delays in the restitution process; 5. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 6,000 (six thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 200 (two 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; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KONTSEVYCH v. UKRAINE (Application no. 9089/04) JUDGMENT STRASBOURG 16 February 2012 FINAL 16/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kontsevych v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as 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, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9089/04) 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, Mrs Yaroslava Ivanivna Kontsevych (“the applicant”), on 10 February 2004. 2. The applicant, who had been granted legal aid, was represented by Mr V.M. Lesyuk, a lawyer. The Ukrainian Government (“the Government”) were represented by their former Agent, Mr Y. Zaytsev, succeeded by Mrs V.Lutkovska, from the Ministry of Justice of Ukraine.", "3. The applicant alleged, inter alia, that the enforcement of the judgment by which the Bailiffs’ Service was ordered to restore to her her apartment occupied by third persons had been too lengthy. 4. On 8 February 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1946 and lives in the town of Kalush, Ukraine. 6. In 1996 a private person, B., lent the applicant approximately 12,266 Ukrainian hryvnias (UAH) (which at the material time, according to the applicant, corresponded to 4,500 United States dollars), with the applicant’s four-room apartment as security. As the applicant was not able to return the sum, in October 1997 the State Bailiffs’ Service held an auction and the apartment in question was bought by B.", "On 19 November 1997 the applicant and her four adult sons were evicted from the apartment. According to the applicant, since then they have been living “in a half ruined building”. A. First set of proceedings 7. On 19 July 2002 the Kalush Local Court considered the applicant’s complaint against the Bailiffs’ Service and found that the auction and the applicant’s eviction had been in breach of the law.", "The court found that since the applicant had nowhere to live the Bailiffs’ Service should return the apartment in question to her immediately. 8. On 24 July 2002 the applicant requested the Bailiffs’ Service to enforce the decision of 19 July 2002 and submitted a copy to them. 9. On 13 August 2002 the Bailiffs’ Service refused to institute enforcement proceedings as the applicant had failed to present a writ of enforcement.", "B. Second set of proceedings 10. In June 2000 the applicant and her four sons instituted proceedings in the Kalush Local Court against K. (who lived in the apartment in question, allegedly renting it from B.) and B., and requested the court to restore their apartment to them. On 28 May 2003 the court found for the plaintiffs.", "It ordered the apartment in question to be restored to the applicants and further ordered B. and K. not to hinder the plaintiffs in using their apartment. On 31 July 2003 the Ivano-Frankivsk Regional Court of Appeal upheld that judgment. On 17 November 2004 the Supreme Court of Ukraine returned B.’s cassation appeal as it had not been submitted in compliance with procedural requirements. 11. On 21 August 2003 enforcement proceedings were instituted.", "12. According to the Government, on 18 November 2003 the applicant requested the staying the enforcement proceedings. The parties did not provide a copy of this request. 13. By a letter of 1 December 2003 the Ivano-Frankivsk Regional Department of Justice informed the applicant that on 28 November 2003 the enforcement proceedings had been stayed, following her request, since “the case concerning the eviction of the third parties who lived in the apartment in question was pending before the court”.", "The enforcement proceedings were resumed on 5 October 2005. 14. On 24 January 2006 the apartment was allegedly restored to the applicant. The applicant, however, stated that she had not been given the keys to the apartment and had not been able to stay there. 15.", "On 25 January 2006 the enforcement proceedings were terminated. The applicant did not appeal against the decision. C. Third set of proceedings 16. In November 2001 the applicant and two of her sons, R. and V., instituted proceedings against B. requesting him to return their personal belongings which had been left in the apartment. On 26 December 2002 the Kalush Local Court, in B.’s absence, found for the plaintiffs and awarded them UAH 37,939 for pecuniary damage and UAH 60,000 for non-pecuniary damage.", "The decision became final as no appeal had been lodged against it, and enforcement proceedings were instituted. 17. On 20 June 2003 B. requested the court to provide him with a copy of the decision of 26 December 2002. 18. On 22 October 2003 B. received a copy of the decision and requested the renewal of the time-limit for lodging an appeal since he had not been informed about the court hearing on 26 December 2002.", "19. On 31 October 2003 the Kalush Local Court rejected his request. It found that on 30 December 2002 a copy of the court decision of 26 December 2002 had been sent to the address indicated by B. in one of his applications to the court, that is, to the address of the applicant’s apartment. 20. B. appealed, stating that he had indicated another address and had learned about the decision of 26 December 2002 only when enforcement proceedings had been instituted.", "21. On 17 December 2003 the Ivano-Frankivsk Regional Court quashed the decision of 31 October 2003 and remitted the case for fresh consideration. No copy of this decision has been provided. On 29 November 2005 the Supreme Court of Ukraine upheld the decision of 17 December 2003. 22.", "On 1 February 2006 the Kalush Local Court decided to accept B.’s appeal against the decision of 26 December 2002. On 27 February 2006 the Ivano-Frankivsk Regional Court of Appeal similarly concluded that B.’s appeal had been lodged in compliance with procedural requirements. 23. On 22 March 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 26 December 2002 as having been given in the absence of the defendant, and remitted the case for fresh consideration. The court found that between October and December 2002 there had been six court hearings that B. had not been informed about.", "The court also decided that B. had not been properly informed about the court hearing of 26 December 2002 “since he denied being present in the court on 11 December 2002 [when the court summons had allegedly been served on him] and he contested his signature on the court summons, which differed from his signature on other documents”. 24. On 11 April 2006 the applicant’s claims for the return of her property were left unexamined by the court. The applicant did not submit a copy of this decision so it is unclear whether she had withdrawn her claims or they were left unexamined for another reason. 25.", "On 2 August 2006 the Supreme Court of Ukraine upheld the decision of 22 March 2006. The Supreme Court in its decision referred to the applicant as a party. 26. On 28 December 2006 the Kalush Local Court found for B. In that judgment the applicant’s two sons were referred to as plaintiffs and the applicant herself was referred to as their representative.", "27. On 16 May 2007 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 28 December 2006, found in part for the applicant’s two sons, and awarded them UAH 21,953 in damages. On 1 August 2007 the Supreme Court of Ukraine upheld that decision. D. Other events 28. In March 2007 one of the applicant’s sons was found dead.", "The cause of death was given as hypothermia, whereas the applicant believes that her son was killed. 29. On 13 June 2008 the Kalush Local Court awarded B. UAH 15,822.98, to be paid by the applicant in compensation for loss incurred as a result of the failure to repay the loan of 1996. The applicant’s three sons were also to pay B. UAH 7,911.47 each. That judgment was upheld on 15 October 2008 and 30 March 2009 by the Ivano-Frankivsk Regional Court of Appeal and the Supreme Court of Ukraine respectively.", "THE LAW 30. The applicant complained under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 about the failure of the State authorities to enforce the judgments of 19 July 2002 and 28 May 2003 given in her favour. 31. She further complained, without invoking any Convention Article, that the court’s decision to allow B.’s belated appeal, and the quashing of the decision of 26 December 2002, had been unlawful.", "32. The Court notes that these complaints are to be considered under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1, which read, in so far as relevant, as follows: Article 6 “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...” Article 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 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.” I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 IN RESPECT OF THE NON-ENFORCEMENT OF THE DECISION OF 19 JULY 2002 A. Admissibility 33. The Government submitted that the applicant had failed to appeal against the decision not to institute enforcement proceedings of 13 August 2002. She had also failed to submit the writ of enforcement required by law. The Government noted that it was a simple requirement; however, the applicant had failed to fulfil it.", "34. The Government further noted that the present application had been lodged more than six months after the decision of 13 August 2002. They considered that the applicant’s complaints in respect of the non-enforcement of the decision of 19 July 2002 were inadmissible. 35. The applicant considered that the decision of 29 November 2005 (see paragraph 21) had been the final decision in her case, and stated that the proceedings in her case should be considered in their entirety and, therefore, she had complied with the six-month rule.", "36. Given that in the first set of proceedings it was the State Bailiffs’ Service which was ordered by the domestic court to return the apartment in question to the applicant, the Court reiterates that it is inappropriate to require an individual who has obtained a judgment against the State following legal proceedings to then bring enforcement proceedings to obtain satisfaction (see, for example, Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). Accordingly, the applicant was not supposed to appeal against the decision of 13 August 2002. 37.", "As to the Government’s objection that that the present application had been lodged more than six months after the decision of 13 August 2002, the Court indicates that the lengthy non-enforcement of a court decision is a continuing violation. Therefore, the Court rejects the Government’s objections. 38. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 39. The Government reiterated their arguments as to the admissibility of the applicant’s complaints and submitted that the decision of 19 July 2002 had been enforced together with the decision of 28 May 2003 by January 2006 since both these decisions concerned identical issues, namely the applicant’s moving back into her apartment. 40.", "The applicant contested this and stated that she had not been given the keys to her apartment and it had not been possible for her to stay there. 41. The Court notes that the two decisions indeed concerned the same issue. The applicant did not challenge the decision on termination of the enforcement proceedings of 25 January 2006, thus the court decisions of 19 July 2002 and of 28 May 2003 must be considered to have been enforced by 25 January 2006. 42.", "Consequently, it took the Bailiffs’ Service three and a half years to enforce the decision of 19 July 2002. The Court, however, notes that on 18 November 2003 the applicant herself requested the suspension of the enforcement of the decision of 28 May 2003, and this is not contested by the applicant in her submissions. The enforcement proceedings were resumed on 5 October 2005. Therefore, it cannot be considered that the Bailiffs’ Service was under an obligation to enforce the decision of 19 July 2002 between 18 November 2003 and 5 October 2005, given that its object was identical to the one of 28 May 2003, whose enforcement the applicant herself requested to have suspended. Thus, it remains to be considered whether the enforcement proceedings between 19 July 2002 and 18 November 2003 (one year and four months) and between 5 October 2005 and 25 January 2006 (three months) were too lengthy.", "1. Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 43. The State authorities were responsible for not enforcing the court decision of 19 July 2002 in the applicant’s favour for one year and seven months in total. During this period the applicant was not able to use the apartment which she owned.", "The Court observes that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases concerning lengthy non-enforcement of court decisions in favour of applicants (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 56, 15 October 2009). Having examined all the material in its possession, 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 violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1. 2. Article 8 of the Convention 44. The Court notes at the outset that it is not contested that the apartment in question constituted the applicant’s home. Her eviction from this apartment had occurred because of unlawful actions on the part of the State Bailiffs’ Service, which was later ordered by the court to restore the apartment to the applicant immediately.", "45. The Court reiterates that while the essential object of Article 8 is 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 negative undertaking, there may be positive obligations inherent in an effective respect for the applicant’s rights protected under Article 8 of the Convention (see, mutatis mutandis, Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998‑I). 46. The Court further notes that after November 1997, when the applicant was evicted from her apartment, she lived in conditions unfit for living, which is not contested by the Government. It was expressly underlined by the domestic court in its decision of 19 July 2002 that the applicant and her family had nowhere to live, and therefore the court ordered the immediate enforcement of its decision.", "However, this decision was not enforced until more than three years later. 47. Even assuming that after 18 November 2003 the applicant herself had requested the suspension of the enforcement proceedings of the decision of 28 May 2003, by that time the decision of 19 July 2002 had remained unenforced for one year and four months. No reasons for such a long period were advanced. After the enforcement proceedings were resumed, it took the national authorities another three months to enforce the decision in question.", "48. Thus, it cannot be said that the Contracting State complied with its positive obligations under Article 8 of the Convention to secure to the applicant respect for her home (see, Pibernik v. Croatia, no. 75139/01, §§ 64-70, 4 March 2004). There has, accordingly, been a violation of Article 8 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 IN RESPECT OF THE NON-ENFORCEMENT OF THE DECISION OF 28 MAY 2003 49. The Court notes that the decision of 28 May 2003 had been enforced by 25 January 2006 (see paragraph 41). 50. The Court reiterates that its enforcement was suspended at the applicant’s request between 18 November 2003 and 5 October 2005.", "Thus, the enforcement proceedings lasted for less than nine months. 51. Even assuming that this period is excessive since the applicant had no proper housing, the Court notes that the decision in question was adopted against private persons. The Court reiterates that the State cannot be considered responsible for the unwillingness of private persons to comply with a court decision and its responsibility extends no further than the involvement of State bodies in the enforcement proceedings (see, mutatis mutandis, Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002).", "52. The Court observes that the Ukrainian legislation provides for a possibility to challenge before the courts the lawfulness of actions and omissions of the Bailiffs’ Service in enforcement proceedings against private debtors and to claim damages from them for the delays in payment of the awarded amount (see, for instance, Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005). The applicant did not institute any such proceedings against the bailiffs. 53.", "Thus the Court finds that the applicant’s complaints in respect of the non-enforcement of the decision of 28 May 2003 must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE FINAL JUDGMENT IN THE APPLICANT’S FAVOUR 54. The Government submitted that “between 11 November 2003 and 10 January 2006” the courts had been considering B.’s request for the renewal of the time-limit for lodging an appeal. Such request was granted since “there were serious reasons for missing the time-limit”.", "The decision of 26 December 2002 had been quashed since it had been taken in B.’s absence and he had not been properly informed about the date of the hearing. Therefore, B.’s appeal against the decision of 26 December 2002 had been in compliance with procedural requirements and there was no violation of the applicant’s right to a fair trial in this respect. 55. The applicant stated that B. should have lodged his request for renewal of the relevant time-limit earlier, whereas he had done so only in October 2003. The applicant insisted that B. had received the decision of 26 December 2002 at the address he himself had indicated to the court so there had been no grounds to renew the time-limit for him to appeal.", "There were also no grounds for quashing the decision of 26 December 2002. 56. The Court notes that although the decision of 1 February 2006 contains no reasons for the renewal of the time-limit for B. to lodge an appeal, it appears that B. was not properly informed about the decision of 26 December 2002 and learned about it only in June 2003. Moreover, the decision of 26 December 2002 was taken in B.’s absence as he had not been properly summoned. The Court considers that the decisions of 1 February 2006 and 22 March 2006 do not appear arbitrary.", "57. The Court considers therefore that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and rejects it in accordance with Article 35 § 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 58. Lastly, the applicant complained of lengthy non-enforcement of the judgment of 26 December 2002 before it was quashed.", "She also complained that her son had been killed. 59. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 60. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 62. The applicant claimed 100,000 euros (EUR) in damages without any particular specification. 63.", "The Government considered that the applicant’s claims were excessive. 64. The Court considers that the applicant must have sustained non-pecuniary damage and, deciding on an equitable basis, awards her EUR 8,000 in this respect. 65. As the applicant was granted legal aid and did not make any specific claim for costs and expenses, the Court makes no award in this respect.", "B. Default interest 66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No.", "1 concerning the lengthy non-enforcement of the decision of 19 July 2002 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias 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 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President" ]

[ "FIFTH SECTION CASE OF KOPANKOVI v. BULGARIA (Application no. 48929/12) JUDGMENT STRASBOURG 6 September 2018 FINAL 06/12/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kopankovi v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,André Potocki,Yonko Grozev,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 10 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "48929/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Bulgarian nationals, Mr Lyudmil Slavov Kopankov (“the first applicant”), Mr Miroslav Kanchev Kopankov (“the second applicant”), Ms Stanka Nikolova Kopankova (“the third applicant”) and Mr Stanislav Lyudmilov Kopankov (“the fourth applicant”, together “the applicants”), on 27 July 2012. 2. The applicants were represented by Mr P. Kordov, a lawyer practising in Stara Zagora. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova of the Minsitry of Justice. 3.", "The applicants complained, in particular, relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, that they had been unable to receive compensation for property of theirs expropriated in the 1980s for urban development. 4. On 10 January 2014 the application was communicated to the Government. Further questions were put to the parties on 7 December 2016.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first and third applicants were born in 1941, the second applicant was born in 1974, and the fourth applicant was born in 1967. The first, second and third applicants live in Kazanlak and the fourth applicant lives in Sofia. 6.", "Ms Maria Kopankova and her grandson, the fourth applicant (son of the first applicant) co-owned a house with a garden in Kazanlak. At the time Ms Maria Kopankova lived in the house with her two sons, the first applicant and Mr Kancho Kopankov, and their families, which included the remaining applicants (the second and third applicants are Mr Kancho Kopankov’s wife and son). 7. By a decision of the town mayor of 18 July 1988 the property was expropriated under the Territorial and Urban Planning Act with a view to constructing a residential building. The decision stated that each of the two owners (Ms Maria Kopankova and the fourth applicant) were to be compensated with a flat in a building which the municipality planned to construct.", "8. After the expropriation the municipal authorities opened a blocked housing savings account with the State Savings Bank in the name of Ms Maria Kopankova and the fourth applicant and transferred to it 13,420 old Bulgarian levs (BGL) – the equivalent of the expropriated property’s value as assessed at the time. 9. In 1989 Ms Maria Kopankova and the applicants were moved out of the expropriated property and the house was pulled down. Construction work started on the plot of land and the foundations of a future building were laid.", "However, the site was soon after that abandoned. 10. Throughout the years that followed Ms Maria Kopankova and the applicants petitioned on many occasions the municipal authorities to provide them with the compensation due, but to no avail. The mayor never took a decision specifying the exact future flats to be offered in compensation (see paragraph 20 below). 11.", "In 1998 Ms Maria Kopankova passed away and was succeeded by her sons, the first applicant and Mr Kancho Kopankov. The latter passed away in 2011 and was succeeded by the second and third applicants. 12. On 16 February 2009 the applicants and Mr Kancho Kopankov made a request to the mayor under section 9(2) of the transitional provisions of the Territorial Planning Act of 2001 (hereinafter “section 9(2)”) for the revocation of the expropriation order of 18 July 1988. As no response followed, they applied for judicial review of the mayor’s tacit refusal.", "13. The Stara Zagora Administrative Court (hereinafter “the Administrative Court”) gave a judgment on 27 May 2010. It found, firstly, that the fourth applicant and Ms Maria Kopankova, and subsequently her heirs, had not received the compensation due to them, namely two flats. It pointed out in this connection that the transfer of money to a blocked housing savings account in their name (see paragraph 8 above) was not equivalent to the provision of compensation. The Administrative Court found further that the authorities had not “taken possession” of the applicants’ property, within the meaning of section 9(2), because there had been no formal decision to take possession (as had been required at the time), and because in any event the construction work which had started on the plot had eventually been abandoned.", "Thus, the preconditions for the revocation of the 1988 expropriation under section 9(2) had been fulfilled. On that basis the Administrative Court quashed the mayor’s tacit refusal and revoked the expropriation order. 14. The judgment above was not appealed against and became final. 15.", "In 2011 the applicants brought a tort action against the Kazanlak municipality under section 1 of the State and Municipalities Responsibility for Damage Act (see paragraph 23 below). They claimed the value of the house and of other objects (such as trees, the pavement and outbuildings) which had stood on the plot of land and had been destroyed, but for which they had never received any compensation. The applicants also made claims in respect of non-pecuniary damage. 16. In the context of the ensuing proceedings the Administrative Court, examining the case, appointed experts, who estimated the value of the house and the remaining objects at 37,868 new Bulgarian levs (BGN – the equivalent of approximately 19,370 euros (EUR)).", "17. In a decision of 26 January 2012 the Administrative Court found the applicants’ claims inadmissible and refused to examine them on the merits. It reasoned that the applicants’ situation had been regulated by sections 9(1) and 9(2) of the transitional provisions of the Territorial Planning Act of 2001 (see paragraph 22 below, hereinafter “section 9(1)” and “section 9(2)”), and that the existence of such a special avenue of redress meant that the general tort provisions of the State and Municipalities Responsibility for Damage Act did not apply. 18. These conclusions were upheld in a final decision of 20 April 2012 of the Supreme Administrative Court, which added that since the expropriation of the applicants’ property had been quashed and the expropriation proceedings completed, the municipality could not be liable for any damage stemming from these proceedings.", "It pointed out in addition that the applicants’ claims did not fall to be examined by the civil courts, under the general rules of tort, and that the administrative courts remained competent to examine them, even though the claims were inadmissible. It thus refused to apply Article 135 § 2 of the Code of Administrative Procedure (see paragraph 25 below) and transfer the case to the civil courts, as the applicants had requested. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Expropriation of property for public use 19.", "The relevant domestic law in force until 1996-98 concerning the expropriation of property for public use and the provision of compensation, especially under the Territorial and Urban Planning Act 1973 (Закон за териториално и селищно устройство), as well and the relevant domestic practice, have been summarised in the Court’s judgments in Kirilova and Others v. Bulgaria (nos. 42908/98 and 3 others, §§ 72‑79, 9 June 2005) and Lazarov v. Bulgaria (no. 21352/02, §§ 19-20, 22 May 2008). Between 1990 and 1998 the relevant provisions of the Territorial and Urban Planning Act were gradually superseded by other legislation, but it was provided that they would continue to govern expropriation proceedings which had already started. 20.", "In particular, the rules above provided that expropriations were to be effected by decisions of a mayor, which had to designate the property to be expropriated and its value, and to specify the manner (property or cash) and amount of compensation due to the dispossessed owner. Where compensation was in the form of other property in lieu, a subsequent supplementary decision of the mayor had to designate the exact property to be given. 21. In the case of compensation in the form of a flat which was yet to be built, a blocked account was to be opened in the name of the owners with the State Savings Bank and an amount corresponding to the estimated value of the expropriated property was to be deposited in that account. The owners could not withdraw or otherwise use this sum, which was intended to cover, usually in part only, the value of the property to be provided in compensation.", "22. The Territorial Planning Act (Закон за устройство на територията), in force since 2001, contained provisions aimed at finalising expropriation proceedings which had commenced under the Territorial and Urban Planning Act 1973 and had not yet been completed. Section 9(2) of its transitional provisions provided, in particular, that the owners of expropriated property who had not yet received the compensation due to them, and where the authorities had not yet taken possession of the expropriated property, could apply to have the respective expropriation decision revoked. After such a revocation the expropriation proceedings would be closed. Where the authorities had already taken possession of the expropriated property, the former owners could seek under section 9(1) monetary compensation in lieu of compensation in the form of other property.", "The Supreme Administrative Court has constantly stated that the two provisions are applicable in different circumstances, their applicability depending on whether the authorities have taken possession or not of the expropriated property (Решение № 11381 от 12.12.2002 г. на ВАС по адм. д. № 7793/2002 г., II о.; Решение № 9432 от 16.11.2004 г. на ВАС по адм. д. № 5152/2004 г., IV о.; Решение № 7342 от 04.06.2009 г. на ВАС по адм.", "д. № 2627/2009 г., II о.; Решение № 15201 от 19.11.2013 г. на ВАС по адм. д. № 14811/2012 г., III о.). Requests under sections 9(1) and 9(2) are to be addressed to the mayor of the respective municipality, whose decisions or tacit refusals are subject to judicial review.", "B. State and municipalities’ liability for damage 23. Section 1 of the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) provides that the State and the municipalities are liable for damage suffered by private persons as a result of their unlawful decisions or actions committed in the course of or in connection with the performance of their duties. Such claims are examined by the administrative courts, under the rules of the Code of Administrative Procedure. 24.", "By contrast, where a tort claim concerns actions of the State or the municipalities which are not related to the exercise of public power (but, for example, to private-law transactions), it is to be examined by the civil courts, under the general rules of tort law. 25. Article 135 § 2 of the Code of Administrative Procedure provides that where an administrative court concludes that it is not competent to examine a case of which it is seized, it is to transfer it to the tribunal which is competent to do so. On those grounds, the administrative courts have regularly transferred cases brought under the State and Municipalities Responsibility for Damage Act to the respective civil courts, considering that those cases did not concern actions of the State or the municipalities related to the exercise of public power and were to be examined under the general rules of tort (see, for example, Определение № 300 от 31.05.2012 г. на АдмС – Пазарджик по адм. д.", "№ 414/2012 г.; Определение № 2892 от 22.06.2012 г. на АдмС – София по адм. д. № 5875/2012 г.). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 26. The applicants complained that they had been unable to receive compensation for the house and the remaining objects on their plot of land after the revocation of the 1988 expropriation. They relied on Article 1 of Protocol No. 1 to the Convention and Article 13. 27.", "The Court is of the view that it suffices to examine the 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.” A. Arguments of the parties 1.", "The Government 28. The Government argued that the applicants had failed to exhaust the available domestic remedies, because they had not sought compensation under the general law of tort, and had instead of that relied on the State and Municipalities Responsibility for Damage Act, bringing claims which the domestic courts had found inadmissible. 29. The Government argued also that the applicants, owing to having “improperly conducted the proceedings” and failing to rely on section 9(1), had missed the opportunity provided for by law to receive compensation for their house. By relying, instead of that, on section 9(2) and seeking the revocation of the 1988 expropriation, they could not have had a legitimate expectation to receive anything apart from their land, because the house and the remaining objects on it had long before that ceased to exist.", "2. The applicants 30. The applicants contested the Government’s objection of non‑exhaustion of domestic remedies, pointing out that if their claim for damages against the Kazanlak municipality had indeed fallen to be examined under the general law of tort, the administrative courts, upon receipt of their statement of claim, would have transferred it to the civil courts, as they had been obliged to under Article 135 § 2 of the Code of Administrative Procedure. 31. The applicants contended that the revocation of the expropriation of their property, on the strength of the Administrative Court’s judgment of 27 May 2010, had given rise to an obligation for the municipality to give back to them everything it had taken.", "Until that judgment had been delivered, the applicants had been entitled to receive compensation for the house and the remaining objects on the land. Thus, it was only fair that after the judgment at issue, specifically after the revocation of the expropriation and the return of part of their expropriated property, they should have remained entitled to receive compensation for the remainder. The situation in which they would be entitled to no compensation at all for part of their expropriated property was contrary to Article 1 of Protocol No. 1. 32.", "The applicants considered that the expropriation of their property in 1988, even though initially lawful, had become unlawful, entitling them to seek its revocation, after the municipality had for many years failed to provide the compensation due to them, namely two flats. They argued furthermore that they had had no choice as to whether they could rely on section 9(1) or section 9(2), as this did not depend on their will, but on whether the authorities had taken possession of the respective expropriated property. B. The Court’s assessment 1. Admissibility 33.", "The Court takes note of the Government’s objection of non‑exhaustion of domestic remedies, based on the fact that the applicants had not claimed compensation for their house and the other objects on the land under the general law of tort (see paragraph 28 above). 34. However, the Court observes that the applicants did bring proceedings seeking compensation for those properties, before the administrative courts, which are competent to examine claims under the State and Municipalities Responsibility for Damage Act (see paragraph 15 above). In its decision of 20 April 2012 the Supreme Administrative Court held expressly that it was the administrative courts who were competent to examine the applicants’ claims, notwithstanding that those claims were to be dismissed as inadmissible. It thus refused to apply Article 135 § 2 of the Code of Administrative Procedure and transfer the case to the civil courts (see paragraph 18 above).", "35. Accordingly, the Court cannot accept the Government’s argument that the general law of tort was applicable and that the applicants had to pursue a claim under it, since such an argument, raised by the applicants, was rejected at the domestic level. It thus dismisses the Government’s objection of non-exhaustion of domestic remedies. 36. The Court notes furthermore that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 37. The Court has held that “possessions” within the meaning of Article 1 of Protocol No.", "1 do not only include existing possessions or assets but also claims in respect of which an applicant has at least a legitimate expectation of obtaining effective enjoyment of a property right (see, for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001‑VIII). 38. In the present case, the applicants’ property, including a plot of land, their house and other objects, was expropriated in 1988 for urban development (see paragraph 7 above). It was decided at the time that Ms Maria Kopankova – from whom the remaining applicants inherited – and the fourth applicant would receive two flats in compensation.", "That legitimate expectation to receive two flats, amounting to “possessions” within the meaning of Article 1 of Protocol No. 1 (see Kirilova and Others, cited above, §§ 86 and 104), was not contested by the authorities and remained valid for many years, including after 7 September 1992 when the Convention entered into force in respect of Bulgaria. 39. In 2001 the Territorial Planning Act was adopted, introducing, in sections 9(1) and 9(2) of its transitional provisions, alternative means for the completion of pending expropriation procedures which had commenced under the Territorial and Urban Planning Act 1973. In particular, section 9(1) entitled expropriated owners whose property had already been taken by the authorities to apply for monetary compensation in lieu of compensation in the form of other property, and under section 9(2) expropriated owners whose property had not yet been taken by the authorities could seek the revocation of the respective expropriation (see paragraph 22 above).", "40. Thus, after 2001 persons in a situation such as the applicants’ – having had property of theirs expropriated years earlier and not having yet received the compensation due – had at their disposal different means to seek redress. They could certainly continue to await the compensation designated initially, such as the two flats in the applicants’ case. In addition, they could seek to replace it with monetary compensation relying on section 9(1), or they could apply to have the expropriation quashed under section 9(2). What is important in the Court’s view is that each of these avenues was intended to provide an asset equivalent in value to the value of the expropriated property and satisfy fully the expropriated owners.", "Neither the Territorial and Urban Planning Act 1973 nor the Territorial Planning Act 2001 envisaged or regulated a situation where no such equivalent asset would be provided in exchange for part of the expropriated property. Thus, in the present case, the introduction of sections 9(1) and 9(2) of the Territorial Planning Act created alternative venues for the completion of the expropriation procedure, but did not, in principle, change the nature of the applicants’ legitimate expectation, namely to receive full compensation for their expropriated property. 41. After more than twenty years of waiting to receive the two flats that they were due under the 1988 expropriation decision, the applicants resorted to one of the alternative means. This decision on their part seems amply justified, in view of the lack of any evidence that throughout the years the Kazanlak municipality ever took any steps to fulfil its obligation to construct and deliver such flats.", "Faced with the municipality’s passivity, which, in itself, could have raised an issue under Article 1 of Protocol No. 1 (see, for example, Kirilova and Others, cited above, §§ 106-124, and Antonovi v. Bulgaria, no. 20827/02, §§ 28-31, 1 October 2009), the applicants made use of a remedy aimed at putting an end to the deadlock situation – they sought the quashing of the expropriation under section 9(2). The Court has already noted that, in a similar situation where it was clear that the compensation initially due would never be provided, the applicants had had to use the other remedies aimed at completing the expropriation procedure (see Petrovi v. Bulgaria [Committee], no. 26759/12, §§ 25-29, 2 February 2017).", "42. Neither can the applicants be blamed for choosing the alternative under section 9(2) of the Territorial Planning Act, rather than the alternative under section 9(1). In view of the specific circumstances of the case and the excessive length of time the applicants had to wait to receive the compensation due to them, the Court cannot attach significant weight to their choice of procedure to seek redress. It is also significant that the applicants’ entitlement to obtain the quashing of the expropriation of their property, under section 9(2), was confirmed by the Administrative Court, which allowed their request in that regard (see paragraph 13 above). 43.", "The applicants’ attempt to obtain such redress led to a situation where they were unable to receive any compensation or another equivalent asset for part of their expropriated property, namely the house and the other objects which had stood on their land. This was so because by the time the Administrative Court quashed the expropriation of their property on the basis of section 9(2), the house and the remaining objects no longer existed, having been destroyed long time ago (see paragraph 9 above). When the applicants sought compensation in tort, the administrative courts dismissed their claim as inadmissible (see paragraphs 15‑18 above). 44. The loss of the applicants’ entitlement to receive compensation or any equivalent asset for part of their expropriated property amounted to deprivation of “possessions”, within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No.", "1 (see Parvanov and Others v. Bulgaria, no. 74787/01, § 43, 7 January 2010). In order to meet the requirements of Article 1 of Protocol No. 1, such deprivation must be lawful and in the public interest, and 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, among other authorities, Maurice v. France [GC], no. 11810/03, §§ 81-82, ECHR 2005‑IX, and Velikovi and Others v. Bulgaria, nos.", "43278/98 and 8 others, § 160, 15 March 2007). 45. As to the first of these requirements, that of lawfulness, the Court observes once again that neither the Territorial and Urban Planning Act 1973, applicable at the time of the expropriation of the applicants’ property, nor the Territorial Planning Act 2001 envisaged or regulated a situation where no equivalent asset would be provided for part of an expropriated property. On the contrary, as noted already, all means of completing pending expropriation procedures were meant to ensure the provision of such equivalent assets, be it compensation in the form of other property, or monetary compensation, or revocation of the expropriation and return of the expropriated property. Consequently, there could be doubt as to whether the deprivation of the applicants of their “possessions” was in accordance with the requirements of domestic law, and thus whether it was “lawful” for the purposes of the analysis under Article 1 of Protocol No.", "1 (see also Parvanov and Others, cited above, §§ 44-50, where the Court also found, in a similar situation, a breach of the requirement of lawfulness). Nevertheless, in view of its findings below, the Court considers that it does not have to reach a definite conclusion on the matter. 46. The Court is prepared to assume, in the next place, that the interference with the applicants’ possessions could have pursued a legitimate aim in the public interest, namely the timely completion of the expropriation procedure which had been pending for a lengthy period of time. 47.", "However, the deprivation of the applicants of their possessions was not proportionate to any such aim. The Court already mentioned above that the applicants had waited for more than twenty years for the compensation due to them initially, namely two flats. Throughout these years they petitioned the Kazanlak municipality on many occasions to provide them with such flats, but to no avail (see paragraph 10 above). Faced with such passive attitude, and in view of the fact that the municipality had apparently not taken any steps towards discharging its obligation to deliver the two flats, the applicants pursued a remedy available to them to receive any redress whatsoever, namely they sought the revocation of the expropriation and the restitution of their property. However, the restitution was only partial and ultimately the applicants were found not to be entitled to any compensation for that part of the property which could not be returned to them.", "48. In view of the considerations above, such an outcome cannot be seen as striking a fair balance between the legitimate aim the interference could have pursued, namely the timely completion of the expropriation procedure, and the applicants’ property rights. 49. Accordingly, there has been a violation of Article 1 of Protocol No. 1.", "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 1. Pecuniary damage 51.", "The applicants claimed, firstly, 40,000 Bulgarian levs (BGN) (the equivalent of 20,460 euros (EUR)) for the value of the house and the other objects on their land. They next claimed BGN 10,000 (EUR 5,100) for the necessary demolition and removal of the remnants of the construction work undertaken on their land after 1989 (see paragraph 9 above). They also claimed, without indicating an exact sum, compensation for the delay in receiving compensation for their expropriated property, starting from 2011 when they had brought a tort action against the Kazanlak municipality (see paragraph 15 above). The applicants requested that any amount awarded by the Court in respect of pecuniary damage be paid to the first applicant, Mr Lyudmil Slavov Kopankov. 52.", "The Government contested the claims, considering them exaggerated. As regards in particular the claim concerning the value of the expropriated house, they referred to a document issued by the Kazanlak municipality, showing that, had that house still existed, its value for tax purposes would have been BGN 10,219 (EUR 5,230). 53. The Court found that the applicants had lost, in breach of Article 1 of Protocol No. 1, their legitimate expectation to receive compensation for part of their expropriated property, namely the house and other objects on their land.", "It considers it appropriate that the award it is to make to recompense that loss should equal the market price of those properties (see Parvanov and Others, cited above, § 58). The Court sees no justification to award the value of the house as calculated for tax purposes, as suggested by the Government, as such a valuation does not necessarily correspond the respective property’s market value (see Chengelyan and Others v. Bulgaria (just satisfaction), no. 47405/07, § 30, 23 November 2017). 54. In the domestic proceedings brought by the applicants the Administrative Court appointed experts, who calculated the market value of the house and the remaining objects at approximately EUR 19,370 (see paragraph 16 above).", "The parties have not provided the Court with any other assessment of those properties’ value. Accordingly, the Court awards the applicants that amount. 55. The applicants claimed, in addition, compensation for the delay in receiving that sum, for the period after 2011 (see paragraph 51 above). The Court observes that it can apply an interest rate, which is intended to compensate for loss of value of the award over time and should therefore reflect national economic conditions, such as levels of inflation and rates of interest during the relevant period (see Runkee and White v. the United Kingdom, nos.", "42949/98 and 53134/99, § 52, 10 May 2007, and Vaskrsić v. Slovenia, no. 31371/12, § 98, 25 April 2017). Applying these criteria, the Court awards the applicants EUR 1,500 under the present head. 56. Lastly, the Court does not discern any causal link between the concrete violation of the applicants’ property rights and any expenses incurred by them in relation to the clearing up of their plot of land.", "Accordingly, it rejects this part of their claim. 57. The total award for pecuniary damage is thus EUR 20,870 (see paragraphs 54-55 above). As requested by the applicants (see paragraph 51 above in fine), it is to be paid entirely to Mr Lyudmil Slavov Kopankov. 2.", "Non-pecuniary damage 58. The applicants claimed BGN 10,000 (EUR 5,100) for each of them in respect of non-pecuniary damage. 59. The Government considered the claims exaggerated. 60.", "The Court is of the view that the applicants must have suffered frustration as a result of the refusal of the authorities to provide the compensation to which they were entitled. Judging on an equitable basis, it awards to each of them EUR 2,000 under this head. B. Costs and expenses 61. The applicants also claimed the reimbursement of the expenses incurred in the tort proceedings brought by them in 2011 (see paragraphs 15‑18 above).", "They presented invoices showing that they had paid BGN 225 (the equivalent of EUR 115) for court fees, and a declaration by their lawyer who stated that he had been paid BGN 3,000 (EUR 1,530) for the applicants’ legal representation before the Administrative Court. The applicants requested that any award made under this head be paid solely to the first applicant, Mr Lyudmil Slavov Kopankov. 62. For the proceedings before the Court, the applicants claimed EUR 4,000 for legal representation, submitting a contract with their lawyer and a time-sheet. They requested that any award made by the Court be paid directly to their lawyer, Mr P. Kordov.", "63. The Government contested the claims, arguing that the amounts claimed were exaggerated. 64. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 65.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicants the EUR 115 paid by them for court fees in the domestic proceedings and EUR 500 for their legal representation in those proceedings, considering the amount they claimed excessive in view of the fact that the Administrative Court never examined their claims on the merits. As requested by the applicants, the total sum of EUR 615 awarded for the domestic proceedings is to be paid solely to Mr Lyudmil Slavov Kopankov. 66. Lastly, for the proceedings before it and in view of the criteria set out in paragraph 64 above, the Court considers it reasonable to award the entire sum claimed by the applicants, namely EUR 4,000, which is to be paid directly to their legal representative. C. Default interest 67.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application 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 applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 20,870 (twenty thousand eight hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be paid solely to Mr Lyudmil Slavov Kopankov; (ii) EUR 2,000 (two thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 4,615 (four thousand six hundred and fifteen euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 615 (six hundred and fifteen euros) of which is to be paid to Lyudmil Slavov Kopankov, and EUR 4,000 (four thousand euros) directly to the applicants’ legal representative, Mr P. Kordov; (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 6 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF MITROVIĆ v. SERBIA (Application no. 52142/12) JUDGMENT STRASBOURG 21 March 2017 FINAL 21/06/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mitrović v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Luis López Guerra,Helen Keller,Dmitry Dedov,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 28 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "52142/12) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bosnia and Herzegovina national, Mr Miladin Mitrović (“the applicant”), on 31 July 2012. 2. The applicant was represented by Ms D. Milovanović, a lawyer practising in Temerin. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was recently substituted by their current Agent, Ms N. Plavšić. 3.", "The applicant alleged that his detention in a Serbian prison on the basis of the judgment of a court of an internationally unrecognised entity violated Article 5 of the Convention. 4. On 18 December 2014 the complaint concerning the applicant’s detention between 7 July 2010 and 15 November 2012 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. Further to the notification under Article 36 § 1 of the Convention and Rule 44 § 1 (a), the Government of Bosnia and Herzegovina did not wish to exercise their right to intervene in the present case.", "6. On 26 October 2015, the applicant’s legal representative informed the Court that the applicant had died on 20 October 2014 and that his heirs, Ms Toma Mitrović, Mr Mladen Mitrović, Mr Milorad Mitrović and Ms Radmila Siroćuk expressed their wish to pursue the application before the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Introduction 7.", "The applicant was born in 1943 and lived in Sremska Mitrovica. He died on 20 October 2014. B. Criminal Proceedings in the “Republic of Serbian Krajina” 8. On 26 December 1993 the applicant was detained on remand by the “Police of the Republic of Serbian Krajina” (Policija Republike Srpske Krajine) under suspicion of murder.", "His detention was subsequently extended by the “investigative judge” (istražni sudija) on 29 December 1993 and by the “District Court of Beli Manastir” (Okružni sud u Belom Manastiru) on 25 January 1994, 15 February 1994, 8 April 1994 and 9 May 1994. 9. On 9 May 1994 the “District Court of Beli Manastir” sentenced the applicant to 8 years of imprisonment for murder. It found that the applicant, after a quarrel in which his neighbour accused him of war profiteering, intentionally shot the neighbour in the head with a rifle, leaving him dead on the spot. It further found that the entire event had taken place in front of several eyewitnesses.", "10. On 21 July 1994 this sentence was confirmed by the “Supreme Court of the Republic of Serbian Krajina” (Vrhovni sud Republike Srpske Krajine). The applicant was then sent to serve his prison sentence in “Beli Manastir District Prison” (Okružni zatvor u Belom Manastiru). 11. All of the above institutions were at the relevant time under the control of the “Republic of Serbian Krajina” (Republika Srpska Krajina), an internationally unrecognised self-proclaimed entity established on the territory of the Republic of Croatia during the wars in the former Yugoslavia.", "The entity ceased to exist after the adoption of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium of 12 November 1995 (hereinafter Erdut Agreement) by which the Republic of Croatia assumed sovereignty over the entirety of its territory. The entity was never recognised as a state by the Respondent State. C. Applicant’s transfer to Serbian custody 12. Shortly after the adoption of the Erdut Agreement, and upon the request of the “Beli Manastir District Prison”, the applicant was transferred on 20 June 1996 to Sremska Mitrovica prison (Kazneno-popravni zavod Sremska Mitrovica), which is on the territory of the Respondent State. The reason for the transfer was listed as “security concerns”.", "No proceedings for recognition and enforcement of a foreign prison sentence were conducted by the authorities of the Republic of Serbia. 13. The applicant remained in Sremska Mitrovica prison until 5 February 1999, when he was released for annual leave until 15 February 1999. Due to the applicant’s failure to return to the prison on the specified date, a warrant for his arrest was issued. 14.", "On 7 July 2010, the applicant was arrested when he attempted to enter Serbia from Croatia. He was sent to Sremska Mitrovica prison to serve the remainder of his sentence. 15. The applicant remained in prison until 15 November 2012 when he was pardoned by the President of the Republic of Serbia and released. D. The proceedings before the Constitutional Court 16.", "On 4 February 2011 the applicant lodged a constitutional appeal challenging the lawfulness of his imprisonment. 17. On 10 May 2012 the Constitutional Court found that there was no violation of the applicant’s right to liberty. It concluded that the legal ground for the applicant’s detention was his conviction by the “Supreme Court of Serbian Krajina” of 21 July 1994. It further noted that the procedure governing the recognition of a foreign criminal sentence and its enforcement was not applicable in the applicant’s case because Serbian Krajina was not a state.", "The court concluded that the applicant’s transfer had been carried out for factual reasons – the deteriorating security situation in the war zone which could lead to the applicant’s escape from prison or his death. The court further noted that the applicant had been convicted of murder by which the right to life was violated, and that states have positive obligations to protect this right. It finally held that the lack of procedure for recognition of a foreign judgment was proportionate to the obligation to enforce a prison sentence for murder especially given that the applicant had access to the Constitutional Court which had the power to review the legality of his detention and that he had access to other procedures available to any other prisoner in Serbia, including the procedure for applying for a pardon. E. Civil proceedings 18. On 7 March 2011 the applicant initiated civil proceedings for compensation for unlawful imprisonment.", "On 13 December 2012 the First Instance Court in Belgrade rejected the applicant’s claim finding that he had been lawfully convicted of murder by the courts of the “Republic of Srpska Krajina” and that his imprisonment cannot be considered as unlawful. On 16 April 2014 the Belgrade Appellate Court confirmed this judgment. On 6 June 2014 the applicant lodged an appeal on points of law before the Supreme Court of Cassation. On 8 July 2015 the Supreme Court of Cassation rejected the applicant’s appeal on points of law on procedural grounds, finding that the value of the dispute in question was below the applicable statutory threshold. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98⁄06) 19. Article 27 of the Constitution provides, inter alia: “Everyone has the right to personal freedom and security. Deprivation of liberty shall be allowed only on the grounds and in a procedure prescribed by law... Any person deprived of liberty shall have the right to initiate proceedings in which the court shall review the lawfulness of the arrest or detention and order the release if the arrest or detention was against the law.” B.", "Criminal Procedure Code 1977 (published in the Official Gazette of the Socialist Federative Republic of Yugoslavia – OG SFRY - 4⁄77, 36⁄77, 14⁄85, 26⁄86, 74⁄87, 57⁄89 as well as in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - 27⁄92 and 24⁄94) 20. The relevant article of this Code read as follows: Article 520 1) The domestic courts will not respond to the requests of foreign organs relating to the enforcement of criminal judgments of foreign courts. 2) By way of exception to paragraph 1 of this Article, the domestic courts will enforce a final judgment in relation to the sentence pronounced by a foreign court if it is regulated by an international agreement and if the sanction is pronounced also by the domestic court in accordance with the criminal law of the Socialist Federative Republic of Yugoslavia. 3) The competent court shall deliver a judgment in a chamber from Article 23, paragraph 6 of this Act without presence of the parties. 4) Competence ratione loci is determined in accordance with the last residence of the convict in the territory of the Socialist Federative Republic of Yugoslavia.", "If the convict did not have residence on the territory of the Socialist Federative Republic of Yugoslavia, his place of birth shall be relevant. If the convict had no residence and was not born on the territory of the Socialist Federative Republic of Yugoslavia, the Federal Court shall appoint one of the courts which is competent ratione materiae to conduct the proceedings. 5) The competent court ratione materiae is determined by the law of the republics, or the laws of the autonomous provinces ... 6) The operative part of the judgment referred to in paragraph 3 of this Article must contain the entire operative part and the name of the [foreign court] and it will pronounce sentence. The reasoning must contain the grounds which led the court to deliver a particular sentence. 7) An appeal against the judgment can be lodged by the public prosecutor or the convicted person or his legal representative.", "8) If a foreign national convicted by a domestic court or a person entitled to do so by an agreement lodges a request to the first instance court to serve his prison sentence in his home country, the first instance court will act in accordance with the international agreement. C. Obligations Act (Zakon o obligacionim odnosima; published in the OG SFRY - nos. 29⁄78, 39⁄85, 45⁄89, 57⁄89 and OG FRY no. 31⁄93) 21. Articles 199 and 200 of the Obligations Act provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his “personal rights” (prava ličnosti) is entitled, depending on the duration and intensity of the suffering, to sue for financial compensation in the civil courts, as well as to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.", "D. Practice of the Supreme Court of Cassation 22. In cases factually similar to the present one, the Supreme Court of Cassation of the Republic of Serbia found that the imprisonment of the individuals convicted in the “Republic of Srpska Krajina” who were serving their sentence in Serbian prisons was unlawful (see, for example, Judgment of the Supreme Court of Cassation Rev. 1031⁄11 of 30 May 2012). The Supreme Court reasoned that the formal requirement of Article 520 of the Criminal Procedure Code, according to which the prison sentence must be confirmed by a domestic court, was not met. It found that the individuals in that case were entitled to compensation because of procedural shortcomings related to their imprisonment.", "THE LAW I. LOCUS STANDI 23. The Court takes note of the death of the applicant in 2014, after the introduction of the present application, and of the wish expressed by his wife and children to continue the application before the Court in his name. 24. The Government did not oppose their wish. 25.", "The Court has already ruled that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). 26. The Court thus accepts that the applicant’s wife and children have a legitimate interest in pursuing the application on his behalf and that it must continue to examine the application at the request of Ms Toma Mitrović, Mr Mladen Mitrović, Mr Milorad Mitrović and Ms Radmila Siroćuk. The Court will refer to the late Mr Mitrović as “the applicant”.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 27. The applicant complains under Article 5 § 1 (a) of the Convention that his detention between 7 July 2010 and 15 November 2012 was not lawful. The relevant part of that Article reads as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ....” 28. The Government deny that there has been any violation. A. Admissibility 1. Exhaustion of domestic remedies 29. In their written observations of 20 May 2015 the Government argued that the applicant’s civil case regarding the essentially same complaint as the one submitted to this Court was pending before the Supreme Court of Cassation and that, therefore, the application should be rejected as premature.", "In their additional observations of 7 December 2015, however, the Government informed the Court that the Supreme Court of Cassation had rejected the applicant’s appeal on the points of law and that the proceedings were, therefore, finished. 30. The Court reiterates that where there are several effective remedies available, it is for the applicant to choose the remedy to be pursued (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12, § 2). The Court notes that the applicant had already raised the same complaint before the Constitutional Court and that court ruled on it on the merits (see paragraphs 16 and 17 above).", "Therefore, the applicant could not have reasonably been expected to embark upon yet another avenue of “potential redress”. In any event, the applicant did pursue the remedy before the civil courts to the Supreme Court of Cassation. 31. In light of these circumstances, the Court finds that the applicant did exhaust all domestic remedies within the meaning of Article 35 § 1 of the Convention and dismisses this Government’s objection in this respect. 2.", "Abuse of the right of individual application 32. The Government argued that the applicant had failed to inform the Court about the civil proceedings which he had initiated and which were concerned with essentially the same complaints as the one submitted before the Court. They maintained that this was important information the omission of which should be deemed as an abuse of the right to individual application. 33. The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Kerechashvili v. Georgia (dec.), no.", "5667/02, 2 May 2006; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; Poznanski and Others v. Germany (dec.), no 25101/05, 3 July 2007; and Simitzi‑Papachristou and Others v. Greece (dec.), no. 50634/11, § 36, 5 November 2013) or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili, cited above) or where new significant developments occurred during the procedure (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008; and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012).", "However, not every omission of the information will amount to abuse; the information in question must concern the very core of the case (see, for example, Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013). 34. Turning to the present case, the Court notes that the applicant indeed failed to inform the Court about the civil proceedings in question. The Court notes, however, that the applicant obtained a decision of the Constitutional Court prior to lodging his application.", "It further notes that the Constitutional Court itself did not consider the civil proceedings to be an obstacle to deciding on the applicant’s constitutional appeal on the merits. Since the applicant exhausted all domestic remedies in this case, his choice to pursue another avenue domestically after submitting his application could in no way mislead the Court while considering the present case. It would have been open to the Court to declare the application inadmissible, if the applicant had been successful in the civil proceedings and received compensation, and had failed to inform the Court of that fact (compare and contrast Caballero Ramirez v. Spain (dec.), no. 24902/11, 3 November 2016, §§ 35-40). The applicant, however, was unsuccessful in the civil proceedings, and so that question does not arise.", "35. The Court, therefore, dismisses the Government’s objection regarding the abuse of the right to individual application. 3. Conclusion 36. 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 37. The applicant claimed that his detention between 7 July 2010 and 15 November 2012 on the basis of a judgment delivered by a “court” of an entity which had not been recognised by the respondent Government violated his right to liberty guaranteed by Article 5 of the Convention.", "He alleged that the failure of the domestic courts to follow the procedure for the recognition of a foreign decision in criminal matters rendered his detention unlawful. 38. The Government contested the applicant’s allegations. They largely reiterated the reasoning offered by the Constitutional Court in its decision related to the present case (see paragraph 17 above). 39.", "The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must be lawful (see, among many other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 230, ECHR 2012; and Chahal v. the United Kingdom, 15 November 1996, § 118, Reports of Judgments and Decisions 1996‑V). 40. In order to meet the requirement of lawfulness, a deprivation of liberty must be “in accordance with a procedure prescribed by law”.", "This means that it must conform to the substantive and procedural rules of national law (Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013) or international law where appropriate (see, among many other authorities, Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010; and Toniolo v. San Marino and Italy, no. 44853/10, § 46, 26 June 2012). 41.", "Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. No deprivation of liberty will be lawful unless it falls within one of the grounds set out in sub-paragraphs (a) to (f) of Article 5 § 1. 42. Turning to the present case, the Court notes that the applicant was convicted for murder by a “court” which operated outside the Serbian judicial system. He was then transferred to a Serbian prison to serve his sentence.", "The Court further notes that the Serbian authorities conducted no proceedings for the recognition of a foreign decision as prescribed by the relevant provisions of the Criminal Procedure Code then in force (see paragraph 20 above). The Supreme Court of Cassation took the view that the omission of such procedure in the cases substantially similar to the present one was unlawful (see paragraph 22 above). The reasoning of the Constitutional Court with regard to the same issue does not contradict this conclusion since it also found that the relevant procedure was not followed in the applicant’s case. The Constitutional Court, however, took the view that the applicant’s right to liberty was not violated because his detention was “proportionate” to the crime he had committed (see paragraph 17 above). 43.", "The Court considers that, even if proportionality was a factor which should be taken into consideration when assessing whether a deprivation of liberty satisfies the requirements of Article 5 § 1 of the Convention, it would be relevant only subject to the precondition that such deprivation of liberty was lawful. In that respect, the Court notes that detention on the basis of a decision of a foreign court which has not been recognised by Serbian authorities in an appropriate procedure is ipso facto unlawful under the rules of domestic law (compare and contrast Drozd and Janousek v. France and Spain, 26 June 1992, §§ 107 and 110, Series A no. 240). It is clear that, in the present case, the domestic authorities did not implement the appropriate procedure required by domestic law for recognition of a foreign decision in criminal matters. The Court finds that given that the applicant was detained on the basis of a non-domestic decision which had not been recognized domestically, and in the absence of any other basis in domestic law for the detention, the requirement of lawfulness contained in Article 5 § 1 was not met.", "The Court, therefore, finds that the applicant’s detention between 7 July 2010 and 15 November 2012 was unlawful. 44. There has accordingly been a violation of Article 5 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 46. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 5 § 1 of the Convention. Done in English, and notified in writing on 21 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident" ]

[ "SECOND SECTION CASE OF SZILÁGYI v. HUNGARY (Application no. 73376/01) JUDGMENT STRASBOURG 5 April 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 Szilágyi v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrK. Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, judges,and MrsS.", "Dollé, Section Registrar,Having regard to the partial decision of 11 March 2003, Having deliberated in private on 15 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 73376/01) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Imre Szilágyi (“the applicant”), on 12 August 2000. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.", "3. On 11 March 2003 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. THE FACTS 4. The applicant was born in 1948 and lives in Budapest.", "5. On 29 September 1995 the applicant brought an action against his former employer, the E. Rt, seeking the annulment of the termination of his employment and claiming payment of outstanding night-shift allowances. On 5 March 1996 the applicant modified his action and also requested that outstanding wages be paid to him. 6. On 21 May, 9 August and 6 September 1996, the Budapest Labour Court held hearings and, on 15 November 1996, it dismissed the applicant’s claims.", "On 2 January 1997 the applicant appealed. On 16 August 1997 he finalised his appeal. 7. On 5 November 1997 the Budapest Regional Court upheld, as confirmed by the Supreme Court’s review bench on 9 December 1998, the first-instance decision in so far as it concerned the termination of the applicant’s employment. As regards the issue of the outstanding night-shift allowances, the Regional Court quashed the Labour Court’s decision and remitted the case to it.", "8. On 7 April 1999 the applicant requested that the final part of the proceedings be re-opened. He also submitted another petition for review against the final decision, which was rejected ex officio by the Supreme Court on 31 May 1999. 9. In the proceedings concerning the applicant’s request for a re-opening, the Labour Court held hearings on 1 October, 5 November and 17 December 1999.", "Subsequently, all of the judges of the Labour Court declared bias and requested permission to withdraw from the case. On 9 May 2000 the Supreme Court appointed the Pest County Labour Court to hear the case. 10. In the resumed proceedings for outstanding wages, on 4 October 2000 the Pest County Labour Court heard the parties, and on 10 October 2000 it ordered a judicial auditing expertise. The expert’s appointment was, however, cancelled on 4 December 2000.", "On 18 May, 22 June and 14 September 2001 the Labour Court held hearings. 11. On the applicant’s motion, on 19 November 2001 the judges of the Pest County Labour Court declared themselves biased. On 9 January 2002 the Supreme Court appointed the Székesfehérvár Labour Court to proceed with the applicant’s request for a re-opening. On 8 May 2002 the Labour Court rejected, as confirmed by the Fejér County Regional Court on 15 July 2002, the applicant’s request for the re-opening.", "12. On 27 June 2002 the Supreme Court appointed the Székesfehérvár Labour Court to examine the applicant’s claim for outstanding wages in the resumed proceedings. On 21 October 2002 and 5 February 2003, the Labour Court held hearings. 13. On 19 May 2003 the Labour Court determined part of the applicant’s claims.", "The applicant’s appeal against this partial decision was dismissed by the Fejér County Regional Court on 6 April 2004. The applicant petitioned the Supreme Court for a review. These proceedings are still pending. 14. On 29 October 2004 the Székesfehérvár Labour Court suspended the proceedings concerning the remainder of the applicant’s claims.", "On 5 January 2005 the Fejér County Regional Court dismissed the applicant’s appeal against the order suspending the case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows: “ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 16. The Government contested that argument.", "17. The period to be taken into consideration began on 29 September 1995 and has not yet ended. It has thus already lasted more than nine years and five months before three levels of jurisdiction. A. Admissibility 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 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 recalls that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17). 20. 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).", "21. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed 60,000,000 Hungarian forints[1] in respect of pecuniary and non-pecuniary damage. 24.", "The Government found the applicant’s claim excessive. 25. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, an award of non-pecuniary damage is called for, although account must be taken of the substantial delay in the proceedings caused by the applicant’s futile motion to have his case re-opened. Ruling on an equitable basis, the Court awards the applicant 3,000 euros (EUR) under this head.", "B. Costs and expenses 26. The applicant did not make any separate claim under this head. C. Default interest 27. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of Hungary at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 5 Apr, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident [1] Approximately 240,000 euros" ]

[ "FOURTH SECTION CASE OF MUSIAŁEK AND BACZYŃSKI v. POLAND (Application no. 32798/02) JUDGMENT STRASBOURG 26 July 2011 FINAL 26/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Musiałek and Baczyński v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,Sverre Erik Jebens,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 5 July 2011 Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in application (no. 32798/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Mr Tomasz Musiałek (“the first applicant”) and Mr Jarosław Baczyński (“the second applicant”), on 12 August 2002 and 20 November 2003 respectively. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicants mainly complained under Article 3 of the Convention of the inadequate conditions of their detention, in particular of overcrowding. 4. On 23 June 2008 a Chamber of the Fourth Section of the Court decided to give notice to the Government of the complaints under Article 3 of the Convention. It was decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mr Tomasz Musiałek, is a Polish national who was born in 1966. He lives in Kamień, Poland. The second applicant, Mr Jarosław Baczyński, is a Polish national who was born in 1974. He is currently serving a prison sentence in Zaręba Górna Prison.", "A. The first applicant 1. The period of the applicant’s detention 6. The applicant, who had been convicted of murder, was deprived of liberty on two separate occasions. 7.", "On the first occasion, he was in continuous detention (committed to different penitentiary facilities) from 2 July 1995 until 9 July 2004. On the latter date he was released on leave to seek medical treatment outside prison. 8. On the second occasion, he was in continuous detention (committed to different penitentiary facilities) from 26 January 2006 until 2 February 2009. 2.", "The applicant’s first detention 9. From 8 until 23 November 1999 and from 1 December 2000 until 12 September 2001 the applicant was detained in Wrocław Prison No. 1. From 12 September 2001 until 9 July 2004 he was detained in Wołów Prison. (a) The conditions of the applicant’s detention 10.", "According to official data, throughout 1999 and the greater part of 2000, the number of detainees in Wrocław Prison was inferior to the prison’s designated capacity. In December 2000, however, the prison’s designated capacity was exceeded by 144 persons. 11. In December 2000 the applicant was detained in a hospital wing of Wrocław Prison and it appears that he was not affected by the prison’s general overcrowding at that time. 12.", "The applicant submitted, however, that from 2001 until an unspecified later date he had been held in severely overcrowded cells in both Wrocław and Wołów Prisons. He had had one-hour outdoor exercise per day and one shower per week. 13. The Government did not submit any information as to the number of detainees held in Wrocław Prison in 2001 or in Wołów Prison from September 2001 until July 2004. They did not contest the applicant’s submission about the limited accessibility to the outdoor yard and shower.", "(b) The applicant’s medical care in prison 14. Since 1998 the applicant had suffered from Dupuytren’s contracture, a condition that, if untreated, prevents the fingers and toes from straightening. 15. On an unspecified date the applicant had operations on his right hand and right foot in Warsaw Remand Centre hospital. 16.", "Subsequently, on 7 December 2000, he again underwent surgery, this time in Wrocław Prison hospital. The applicant submitted that both operations had been performed incorrectly and that he had not received sufficient medical attention after each procedure. As a result, his wounds had taken a long time to heal and he had developed inflammation, mycosis and scar contracture of two fingers of his right hand. 17. A number of expert reports and testimonies of witnesses which had been produced in the course of criminal investigations instituted by the applicant (see paragraphs 40-43 below) revealed that shortly after the second surgery the applicant soaked his hand in an unspecified disinfectant and put needles in his healing wound.", "18. It appears that on an unspecified date in 2001 the applicant was examined by a plastic surgeon who recommended a third operation on the applicant’s hand in the specialised orthopaedic centre of Warsaw Remand Centre. 19. On 22 January 2002 the Governor of Wołów Prison informed the applicant that he qualified for reconstructive surgery of his right hand, but that such surgery could not be performed within the penitentiary system. The applicant was also informed that prison hospitals could not offer him any further diagnostic care or surgical treatment.", "20. An expert medical report which was obtained on 18 February 2002 by the penitentiary court (see paragraph 38 below) stated that the applicant required surgery, but not urgently, and that his condition could be improved by physiotherapy available in prison. In consequence, on 8 July 2002 the Wrocław Regional Court rejected the applicant’s request for a short period of leave from the enforcement of the sentence. 21. On 6 March 2003 the Chief Doctor of the Wołów Prison hospital issued a written statement in which he noted that the contracture of the applicant’s right-hand little finger was so advanced that it could no longer be treated.", "The doctor recommended instead that the finger be amputated. The applicant did not consent to amputation. 22. The Government submitted that in 2003 the applicant had five orthopaedic examinations and refused to undergo another two specialist consultations scheduled. At that time, the condition of the applicant’s right thumb was considered satisfactory but changes in his right elbow were detected.", "The applicant also qualified for an operation on his two contracted left-hand fingers. His damaged hip-joint was monitored periodically. 23. In 2004 four specialist examinations were scheduled for the applicant but he agreed to undergo only three of them. In April 2004 surgery on the contracted fingers was recommended.", "24. On 9 July 2004 the applicant was granted release from prison for eighteen months in order to seek medical treatment outside the penitentiary health-care system. 3. The applicant’s actions concerning the conditions of his first detention and his medical care in prison (a) Actions concerning the conditions of the applicant’s detention (i) Penitentiary and administrative complaints 25. The applicant lodged numerous complaints about different aspects of his detention with the administration of the detention establishments concerned and with the State and penitentiary authorities.", "26. In a letter of 14 November 2001 the Director of the Central Board of the Prison Service (Centralny Zarząd Służby Więziennej) stated, inter alia, that between 22 May and 28 August 2001 the applicant had been held in cell no. 84 of wing no. II ward 1B of Wrocław Prison No. 1.", "His cell had been shared by four prisoners, including the applicant. Later on, he had been transferred to cell no. 84 of wing no. I ward 3A. The size of the cells in question was not indicated.", "(ii) Criminal proceedings against the prison staff and administration 27. On 26 June 2003 the Wołów District Prosecutor discontinued the investigation into the applicant’s allegations that in February 2003 the Governor of Wołów Prison (Dyrektor Zakładu Karnego) had exceeded his authority (przekroczenie uprawnień) and neglected his duties (niedopełnienie obowiązków) in that he had authorised the admission of new prisoners causing severe overcrowding and inadequate living conditions in that establishment. The investigation was closed because it could not be established that the offence in question had been committed (niestwierdzenie popełnienia czynu zabronionego). It was found that, at the relevant time, the applicant had been held with six other prisoners in a cell designed for five persons. Despite that, it was considered that the sanitary and living conditions were adequate.", "Prisoners had individual beds, access to TV-sets and they benefited from extended periods of outdoor exercise. 28. Similarly, on 16 September 2003 the Wołów District Prosecutor discontinued the investigation into the applicant’s allegations of mismanagement in Wołów Prison since 13 September 2003. The applicant asserted that the Governor of Wołów Prison had exceeded his authority and neglected his duties in that he had authorised the admission of new prisoners despite the existing overcrowding. In the course of the investigation it was established that the applicant had been held in eight different cells (in wings A and B) which measured from 16 to 16.3 square metres.", "The cells in question had been designed for five persons but, in fact, they were shared by up to eight prisoners. It was stressed that, despite the existing overcrowding in Wołów Prison, the rights of prisoners were respected. The cells were sufficiently ventilated and heated. The sanitary conditions were adequate. Prisoners had individual beds and access to TV‑sets, as well as to other technical equipment.", "Because of the overcrowding, prisoners were allowed to have longer periods of outdoor exercise and to use the prison gymnasium and library. It was concluded that the case of Wołów Prison was not unique since overcrowding was a systemic problem in the country. The administration of Wołów Prison could not be blamed for aggravating the situation by admitting new prisoners. The Governor was acting in accordance with the law. His decisions to reduce the size of cells to less than three square metres per prisoner were taken every three months and they were regularly conveyed to the penitentiary judge (sędzia penitencjarny).", "Finally, it was stressed that a decision to admit a convicted person to prison did not lie within the discretion of a prison governor since it was a domestic court which ordered where a convicted person was to serve his sentence. 29. On 22 January 2004 the Wołów District Court (Sąd Rejonowy) dismissed an interlocutory appeal against the above decision. The court held that the investigation into the matter had been conducted thoroughly and diligently, while the prosecutor’s conclusions had been accurate. Irrespective of that finding, the court acknowledged that overcrowding and inadequate living conditions were a general problem in numerous detention establishments in the country, including Wołów Prison.", "Consequently, the situation in Wołów Prison did not result from bad management or negligence on the part of the prison administration. (iii) Civil proceedings against Wrocław Prison and the State Treasury 30. On 21 March 2004 the applicant brought a civil action for infringement of his personal rights against Wrocław Prison. 31. On 1 February 2005 the Wrocław Regional Court refused to appoint a legal-aid lawyer as requested by the applicant.", "The applicant submitted that he had not been aware of that fact. 32. On an unspecified date the applicant was heard by the Wołów District Court under the court-cooperation scheme (pomoc sądowa). The applicant was notified about the subsequent court hearings in Wrocław but he did not attend. 33.", "It appears that on 31 August 2005 the Wrocław Regional Court dismissed the applicant’s claim for compensation. No appeal was lodged against that judgment. 34. The applicant submitted that he had not been informed about the decisions or the first-instance judgment until he had consulted the case file at the court on 9 March 2006. He further submitted that the judgment itself had never been served on him.", "(b) Actions concerning the applicant’s medical care in prison (i) Penitentiary appeals 35. It appears that between 2001 and 2003 the applicant applied a number of times for a short period of leave from the enforcement of his sentence (przerwa w wykonaiu kary pozbawienia wolnosci) on medical grounds. The applicant was examined by many medical commissions but the penitentiary court rejected all his requests. 36. By letter of 3 October 2001 the Governor of Wrocław Prison informed the applicant that as a result of an internal inquiry, it had been found that the applicant had been examined by a plastic surgeon who had recommended a third operation on the applicant’s arm in the specialist orthopaedic centre of Warsaw Remand Centre.", "37. On 22 January 2002 the Governor of Wołów Prison informed the applicant that he had been diagnosed with third-degree Dupuytren’s contracture and, in addition, with nerve damage in his right elbow. It was also stated that the applicant qualified for reconstructive surgery of his right hand, but that such surgery could not be performed within the penitentiary system. Lastly, the applicant was informed that prison hospitals could not offer him any further diagnostic care or surgical treatment. (ii) Court proceedings 38.", "On one occasion the court initiated proceedings of its own motion because of discrepancies between the medical reports issued by prison doctors and the doctors of the Wrocław Forensic Medicine Institute (Zakład Medycyny Sądowej). The court heard evidence from one of the expert doctors. On 18 February 2002 the court obtained a new medical report which stated that the applicant required surgery, but not urgently, and that his condition could be improved by physiotherapy available in prison. On 8 July 2002 the Wrocław Regional Court rejected the applicant’s request for a short period of leave from the enforcement of the sentence. (iii) Criminal investigations 39.", "In the meantime, on 13 April 2001 the applicant complained to the prosecution service about alleged medical malpractice committed by the medical staff of the Wrocław Prison during and after his surgery. 40. On 25 June 2001 the Wrocław Police discontinued the inquiry due to the lack of statutory features of a criminal offence (brak znamion czynu zabronionego). It was established that the Wrocław Prison hospital doctors and staff had provided the applicant with adequate surgical treatment and post-surgery medical care. On the other hand, it was established that the applicant himself had worsened his condition by soaking his hand in an unspecified disinfectant and putting needles in his healing wound.", "41. On 24 October 2001 the investigation into the above-mentioned allegations was discontinued by the Wrocław District Prosecutor, who found no statutory features of a criminal offence. The Prosecutor relied on two expert reports and the testimony of the chief surgeon of one of the prison hospitals. It was concluded that the surgery at the Warsaw Prison hospital had been conducted correctly. The need to operate again arose because of the natural progress of the applicant’s disease and his own negligence in post-surgery therapy rather than any malpractice during the first surgery.", "42. It appears that on an unspecified date the decision was quashed by a domestic court and that the investigation was reopened. 43. Nevertheless, on 29 April 2002 the Wrocław District Prosecutor once more discontinued the investigation, reiterating the grounds mentioned above. The investigation, in which the report of an expert in forensic medicine was obtained on 25 March 2002, revealed that the medical treatment and care provided to the applicant during and after his surgery had been adequate.", "On the other hand, it was found that the applicant himself had impeded the process of his post-surgery rehabilitation. A number of witnesses gave evidence that the applicant used to soak his hand in an unspecified disinfectant and that he put needles in his wound. The latter caused infection and difficulties in recovery. 44. The applicant, who at that point was represented by an attorney, appealed against the prosecutor’s decision.", "45. On 4 April 2003 the Wrocław District Court dismissed the appeal. 4. The applicant’s second detention 46. From 10 July 2006 until 25 May 2007 the applicant was committed to Wołów Prison.", "From 26 May until 26 October 2007 he was detained in Wrocław Prison No. 1. From 26 October 2007 until 2 February 2009 he was held again in Wołów Prison. (a) The conditions of the applicant’s detention 47. The applicant submitted that he had been detained in overcrowded and insanitary cells.", "He had a one-hour outdoor exercise per day and one shower per week. 48. The Government did not submit any information as to the number of prisoners sharing the applicant’s cells in Wołów Prison between July 2006 and May 2007. As to Wrocław Prison, they submitted that in 2007 the prison’s designated capacity had been exceeded by 340 persons. Lastly, the applicant’s more recent Wołów Prison records indicate that from October 2007 until February 2009 he was held in cells in which the space per person ranged from 2.3 up to 8 square metres.", "(b) The applicant’s medical care in prison 49. The applicant made a general statement that during his second detention he had not been afforded adequate medical care. The Government submitted that on 2 June 2006 the applicant had informed the prison authorities in writing that he did not agree to undergo a medical examination or to receive any direct medical treatment in the orthopaedic centre of Wrocław Prison. 50. In September 2006 the applicant had been examined by a neurologist and in October 2006 he had refused to have an EMG scan of his muscles.", "51. In March 2007 the applicant refused to undergo an orthopaedic check-up. Eventually, in July 2007 he was examined by an orthopaedist at Warszawa-Mokotów Remand Centre. At that time, the applicant was considered not to qualify for surgery in that healthcare establishment. 52.", "On 28 August 2007 the applicant was examined at the orthopaedic clinic in Wrocław and he was scheduled to undergo surgery on his contracted right hand three months later. On 10 October 2007, however, he withdrew his consent for the operation. It appears that soon afterwards the prison authorities renewed their request for the applicant’s surgery but no date was set by the clinic. 5. The applicant’s actions concerning the conditions of his second detention and his medical care in prison (a) Actions concerning the conditions of the applicant’s detention 53.", "It appears that the applicant did not lodge any complaints concerning the living conditions with the penitentiary authorities or prison administration. He complained about the quality of his medical care to the Wołów Prison administration. He did not bring, however, a civil action for compensation for the infringement of personal rights on account of overcrowding, inadequate living conditions and medical care in prison during his second detention. (b) Actions concerning the applicant’s medical care in prison 54. The applicant made a number of complaints about the quality of medical care provided to him in Wołów Prison.", "55. In a letter of 15 November 2006 the Governor of Wołów Prison acknowledged that on 24 and 31 October 2006 the applicant had not been taken to see a doctor despite his prior appointment. It was explained that the number of prisoners who claimed to have a medical emergency on those dates was so high that some of the routine check-ups, such as the applicant’s, had to be cancelled. The fact that the applicant had not been seen by the doctor had not caused any deterioration of his health. The Governor stressed that, with the above exception, the applicant had received medical attention on a regular basis.", "On 23 October 2006 he had been examined by the in-house doctor and in the months of October and November 2006 he had been taken six times to the prison infirmary. 56. By letter of 15 November 2006 the Governor of Wołów Prison acknowledged that on 24 and 31 October 2006 the applicant could not be examined by an in-house doctor because of the significant number of new admissions. On the other hand, it was stressed that the applicant had not required urgent medical attention and the fact that he had missed two appointments had not affected his health. 6.", "Acts of alleged persecution during the applicant’s detention and applications for parole 57. The applicant submitted that he had been persecuted by the staff and administration of Wrocław and Wołów Prisons. To that effect the applicant relied on the following events and procedures. 58. On 19 April 2001 the applicant’s cell no.", "211 in Wrocław Prison was searched by the prison staff. It was discovered that the applicant kept files of documents in a quantity exceeding the number allowed. The documents were stored in the prison storage room. In addition, the applicant’s tape player was temporarily seized in the course of the search. After verifying that the tape player did not conceal any forbidden material inside it, the prison administration returned it to the applicant on the following day.", "59. On 28 August 2001 the Penitentiary Commission (Komisja Penitencjarna) of Wrocław Prison decided to change the applicant’s sub‑category from ‘first-time offender detained in a semi-open prison with resocialisation programme’ (P-2/p) to ‘first-time offender detained in a closed prison with resocialisation programme’ (P-1/p). The Penitentiary Commission relied on the gravity of the offence of which the applicant had been convicted, his negative psychological assessment, his vexatious character and the fact that he had incited other prisoners to complain about prison conditions. 60. By letter of 3 October 2001 the Governor of Wrocław Prison (Dyrektor Zakładu Karnego) informed the applicant that as a result of an internal inquiry, it had been found that the applicant received writing paper, envelopes and stamps in an amount which allowed him to engage in extensive correspondence with various State authorities.", "The applicant’s out-going letters were dispatched without any delay. 61. In a letter of 9 October 2001 the Governor of Wrocław Prison informed the applicant that his allegations that the prison administration had forged his signature in the mail register and that he had been receiving inadequate health-care had been considered ill-founded. 62. In a letter of 14 November 2001 the Director of the Central Board of the Prison Service (Centralny Zarząd Służby Więziennej) apologised for the fact that one of the letters sent to the applicant from the Central Board of the Prison Service had been opened by mistake before it was handed over to the applicant.", "63. On 2 April and 2 May 2002 the Wrocław District Prosecutor (Prokurator Rejonowy) discontinued two investigations into the applicant’s allegations that his out-going and in-coming mail was opened by the staff of the Wrocław Prison. Both decisions were justified by the absence of the features of a criminal offence. They were upheld by the Wrocław District Court on 4 November and 15 October 2002 respectively. 64.", "On 8 May 2002 the Wrocław District Prosecutor discontinued the investigation into the applicant’s allegations that the staff of Wrocław Prison had forged his signatures in the register of prisoners’ mail. The preliminary investigation revealed that the alleged offence had not taken place. On 14 October 2002 the Wrocław District Court upheld that decision. 65. On 10 June 2002 the Wrocław District Prosecutor discontinued an investigation into the applicant’s allegations that the Penitentiary Commission of Wrocław Prison had breached their duties in that they had changed his prisoner’s classification.", "The investigation was discontinued on the ground of the absence of the features of a criminal offence (brak znamion czynu niedozwolonego). On 5 December 2002 the Wrocław District Court upheld that decision. 66. On 10 November 2003, the Wołów District Police Station (Komenda Powiatowa Policji) discontinued the investigation into the applicant’s allegations that the staff of Wołów Prison did not allow him to have adequate access to the prison radio, library, doctor or cultural and social activities, and did not provide the applicant with an adequate number of cupboards inside his cell or sufficient lighting. In addition, the investigators looked into the applicant’s allegations that on 20 September 2001 the staff of Wołów Prison had withheld a letter to the Committee for the Prevention of Torture in Strasbourg.", "The applicant’s allegations were ruled to be ill‑founded and the investigation was discontinued. On 14 November 2003 that decision was upheld by the Wołów District Prosecutor and on 1 April 2004 by the Wołów District Court. 67. By letter of 26 November 2003 the Deputy Governor of Wołów Prison (Zastępca Dyrektora) informed the applicant about the results of the internal inquiry into the allegations that on 13 November 2003 the warder searching the applicant’s cell no. 41 had stolen his tape player, a number of telephone cards and stamps.", "The inquiry had revealed that the applicant’s tape player had been seized by the warder because, contrary to the prison’s internal security rules, the applicant had removed special security seals from it. Moreover, it had been established that the warder had not stolen any telephone cards or stamps. 68. On 15 January 2004 the Wołów District Police Station refused to open an inquiry into the applicant’s allegations that on 13 November 2003 one of the Wołów Prison warders had stolen his radio, stamps and calling cards. On 29 January 2004 the Wołów District Prosecutor (Prokurator Rejonowy) upheld that decision, however, the date of the final court’s ruling in that matter has not been disclosed to the Registry.", "69. On 1 April 2004 the Wołów District Prosecutor discontinued an investigation regarding a certain R.A., a warder in Wołów Prison who on 28 October 2002 had allegedly forged the applicant’s signature in the prison mail register. The investigation revealed that the suspected person had indeed committed the offence in question. However, due to the minimal social danger of the offence (znikoma społeczna szkodliwość czynu), and the fact that the warder had admitted his fault and shown repentance, the investigation had to be closed. On 13 January 2005 the Wołów District Court upheld that decision.", "70. The applicant lodged numerous requests for parole (warunkowe zwolnienie) but all of them were rejected by the penitentiary court on the ground of his negative criminological prognosis. 71. On 9 July 2004 the applicant was granted release from prison to seek medical treatment outside the penitentiary health-care system. 72.", "A letter of 17 August 2006 from the Deputy Governor of Wołów Prison contained a detailed account of the number of sheets of paper, envelopes and stamps furnished to the applicant by the prison free of charge. It was also stated that the applicant had received a pair of shoes from the prison stock. Consequently, the applicant’s complaints about insufficient paper supplies and the lack of social aid were found to be ill‑founded. 7. Civil proceedings concerning a fight in prison 73.", "On 28 April 2003 the applicant filed a civil action for compensation for mental distress he had allegedly suffered because he had witnessed a fight among his cellmates in Wołów Prison. 74. In the initial phase of the trial the applicant was present at the court hearings and he represented himself. On 9 July 2004 he was released from prison on health grounds and for nineteen months he remained at liberty. From that date onwards the applicant did not participate in the court’s hearings in person since the distance between the court venue and his home was too great for him to commute.", "On 23 July or August 2004 the Wołów District Court appointed a legal-aid lawyer to represent the applicant. 75. On 1 March 2005 the Wołów District Court dismissed the applicant’s claim. The applicant’s lawyer advised him that the appeal in that case had no prospects of success. 8.", "Civil proceedings against domestic courts 76. It appears that in 2005 the applicant brought an action for damages against the Wrocław Regional Court and Court of Appeal. The applicant did not inform the court about the course of the proceedings. In the light of the material at the Court’s disposal, the proceedings in question are currently pending. 9.", "Criminal proceedings against the applicant 77. On 28 June 2002 the applicant was indicted on the charge of committing perjury in connection inter alia with the fact that on 20 June 2001 he had informed the Wrocław District Prosecutor that for several months in 2001 his signatures in the mail register of Wrocław Prison had been forged by the prison staff. 78. On 25 March 2004 the Wołów District Court (Sąd Rejonowy) acquitted the applicant. 79.", "On 29 June 2004 the Wrocław Regional Court (Sąd Okręgowy) upheld that judgment. 10. Voting in referendum 80. On 2 September 1996 the Jelenia Góra Regional Court convicted the applicant of murder and sentenced him to fifteen years’ imprisonment and seven years’ deprivation of his civic rights, including the right to vote. 81.", "In June 2003 the applicant wished to cast his vote in the referendum on Poland’s accession to the European Union. The staff of Wołów Prison did not allow him to do so. 82. The applicant complained about that fact to the Wołów Prison administration and the domestic courts. He asserted that if the deprivation of his civic rights was enforceable immediately after the relevant judgment had become effective, but the running of time for that purpose was then suspended until the end of his imprisonment, that would make the period of deprivation of his civic rights much longer than the seven years imposed by the court.", "83. By a letter of 26 February 2007 the Deputy Governor of Wołów Prison explained that the applicant could not vote in the referendum because he had been deprived of his civic rights by a court decision. It was explained that in the light of the applicable law, the deprivation in question became effective as soon as the judgment had become final, but that the disqualification period, in the applicant’s case of seven years, did not begin to run until after the end of the term of imprisonment. 84. By a decision of 31 January 2007 the Jelenia Góra Regional Court refused to resolve doubts (odmówić rozstrzygnięcia wątpliwości) as to the enforcement of the deprivation of the right to vote as imposed by the relevant judgment.", "The court held that there was no basis for resolving the issue. Nevertheless, the court went on to explain that the suspension of the term of the deprivation of civic rights had been envisaged by the legislature in order to ensure that the punishment which a punitive measure (środek karny) was meant to carry did not become a fiction. 11. Education outside prison 85. Throughout his incarceration the applicant made requests to be allowed to study at a university outside the prison system.", "86. On 18 December 2002 the Penitentiary Commission of Wołów Prison decided not to grant the applicant’s request because of his negative criminological prognosis. 87. On 24 February 2003 the Wrocław Regional Court upheld that decision. B.", "The second applicant 1. The period of the applicant’s detention 88. On 8 November 2000 the applicant was remanded in custody in connection with criminal proceedings against him. 89. He was committed to Wołów Prison where he was held until an unspecified date.", "It appears that he is currently detained in Zaręba Górna Prison. 2. The conditions of the applicant’s detention 90. The applicant submitted that he had been detained in inadequate living and sanitary conditions. In particular, he complained about severe overcrowding.", "91. During an unspecified period the applicant was held in cell no. 76 ward IV A. The total size of the cell in question was sixteen square metres but, in fact, the habitable area was reduced to thirteen square metres because of the toilet annex and other equipment placed inside. The cell was shared by six to eight persons at a time.", "Detainees had no access to hot water inside the cell. There was no loudspeaker to allow them to listen to the prison radio. The cell in question was insufficiently ventilated and lit. Two small windows were permanently covered by the bunk beds and the artificial lighting was inadequate. 92.", "The Government submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in Zaręba Górna Prison, in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission. 3. The applicant’s actions concerning the conditions of his detention 93. The applicant did not lodge any complaints in that connection with the penitentiary authorities or prison administration.", "Nor did he bring a related civil action for compensation for the infringement of personal rights on account of overcrowding and inadequate living conditions. II. RELEVANT DOMESTIC LAW AND PRACTICE 94. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no.", "17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45‑88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54). THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 95.", "In their letter of 16 March 2009 the Government asked that the application be struck out of the Court’s list of cases on the basis of Article 37 of the Convention, which, in its relevant part, reads as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application...” 96. The Government maintained that the applicants had failed to pursue their application in that they had not submitted their observations on the admissibility and the merits of the case. 97. The Court notes that the applicants acted without legal representation.", "The first applicant, who pursued the case on his and the second applicant’s behalf, maintained extensive correspondence with the Court throughout the entire proceedings. In all of his letters, including the last letter which was sent to the Court before the expiration of the time-limit for observations, the first applicant stated that he confirmed his and the second applicant’s original pleadings and wished to pursue the application. He explained that he could not respond to the Government’s observations in detail because he did not speak either of the Court’s official languages. In such circumstances and having regard to the fact that the first applicant expressed clearly, on his and on the second applicant’s behalf, their intention to pursue the application, the Court must continue the examination of the case. 98.", "This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention. II. THE ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF OVERCROWDING AND INADEQUATE CONDITIONS OF THE APPLICANTS’ DETENTION AND OF INADEQUATE MEDICAL CARE AFFORDED TO THE FIRST APPLICANT DURING HIS DETENTION 99. The first applicant complained under Article 3 of the Convention about the overcrowding, inadequate conditions and medical care in Wołów and Wrocław Prisons. 100.", "The second applicant complained of the inadequate conditions of his detention in Wołów Prison. A. Admissibility 1. The Government’s objection on exhaustion of domestic remedies 101. The Government raised a preliminary objection, arguing that the applicants had not exhausted the domestic remedies available to them. (a) The Government 102.", "The Government submitted that the first applicant had been released from prison on 2 February 2009 and that the second applicant had been moved to a prison in which he had been secured at least the statutory minimum standard space of 3 square metres per person shortly after the delivery of the Orchowski and Norbert Sikorski pilot judgments. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicants should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation. 103. In that regard they relied, in particular, on the Orchowski judgment, reiterating that the Court, having regard to the principle of subsidiarity, had held that in cases where the alleged violation of Article 3 no longer continued and could not be eliminated with retrospective effect, the only means of redress for the applicant was pecuniary compensation. 104.", "In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. (b) The applicants 105. The applicants did not submit any comments. (c) The Court (i) Recently established principles 106. The Court already examined a similar objection on exhaustion of domestic remedies raised by the Government in the above-mentioned cases of Łatak v. Poland and Łomiński v. Poland and considered their arguments not only in the context of those two particular applicants but also in respect of other actual or potential applicants with similar cases (see Łatak v. Poland no.", "52070/08 and Łomiński v. Poland no. 33502/09 (dec.), 12 October 2010, §§ 71-85 and §§ 62-76 respectively). 107. In so doing, the Court had regard to the fact that on the date of the adoption of its decisions there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84 and § 75 respectively).", "108. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively). (ii) The Court’s conclusion concerning the first applicant 109. In the present case the first applicant was deprived of liberty in two separate periods (see paragraphs 7 and 8 above).", "(α) The applicant’s first detention 110. The applicant’s first detention lasted in total from 26 September 1995 until 9 July 2004. It effectively ended on the latter date because the applicant was released on an eighteen-month long break to seek medical treatment outside prison. 111. The Court notes that the applicant’s complaint under Article 3 of the Convention is not limited to the overcrowding and resultant poor living and sanitary conditions of his detention.", "The applicant, who suffers from a particular orthopaedic disorder, complained, in parallel, that the medical care provided to him within the penitentiary system had been inadequate and that his health had deteriorated as a result. The Court has already held in a similar case that only a remedy able to address the applicant’s complaint in its integrity and not merely its selected aspects, could realistically redress his situation (see Sławomir Musiał v. Poland, no. 28300/06, § 80, ECHR 2009‑... (extracts)). 112. In any event, between 2001 and 2003 the applicant applied a number of times to be released from prison on health grounds.", "He also instituted criminal investigations against the medical staff of Wrocław Remand Centre. By taking those actions the applicant has sufficiently drawn the attention of the penitentiary authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health (see paragraphs 35-45 above). Moreover, the applicant took steps to complain specifically of his detention conditions and the overcrowding. He lodged penitentiary complaints, instituted criminal proceedings against the staff and administration of Wołów Prison and civil proceedings against Wrocław Prison (see paragraphs 25-34 above). 113.", "Bearing in mind that the applicant’s Article 3 complaint is two‑fold, the Court will, nevertheless, examine the Government’s objection as it has been formulated, that is, in relation to the overcrowding and resultant poor living and sanitary conditions of the applicant’s detention. The Court reiterates that in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see Orchowski, cited above, § 96 and Norbert Sikorski, cited above, §§ 100-101) it held that the findings made by the Constitutional Court and by this Court that overcrowding in Polish detention facilities was of a structural nature, “undermined the effectiveness of any domestic remedy available, making them theoretical and illusory and incapable of providing redress in respect of the applicant’s complaint” (ibid. § 111 and § 121 respectively). This conclusion equally applies to the present case in so far as it concerns the applicant’s first detention which ended in 2004, especially given that the Government explicitly acknowledged the existence and the systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time (ibid. § 146 and § 148 respectively) and that the applicant’s civil actions and penitentiary complaints, which he had lodged against Wołów and Wrocław Prisons between 2001 and 2004, were to no avail (see paragraphs 18-27 above).", "Moreover, noting that the applicant’s first detention ended in 2004 and that a relevant civil action under Articles 24 and 448 of the Civil Code is barred by the three-year statute of limitation, the Court considers that the applicant cannot presently be required to avail himself of the civil remedy in question. 114. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies in so far as the applicant’s first detention is concerned. 115. The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. (β) The applicant’s second detention 116. The applicant’s second detention lasted from 26 January 2006 until 2 February 2009. During that time, the applicant made a number of complaints about the quality of medical care provided to him in Wołów Prison but he did not lodge any such complaints concerning the overcrowding and overall living conditions.", "Nor did he bring a civil action for compensation for the infringement of personal rights. That being so, the Court will examine the admissibility of the applicant’s Article 3 complaint in each of its aspects. 117. In so far as the applicant complained of the overcrowding and resultant poor living and sanitary conditions of his detention, the Court observes that he is now at liberty and that he still has adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code. It follows that, he should, before having his complaint concerning the conditions of his second detention examined by the Court, be required to seek redress at domestic level.", "118. It follows that the applicant’s complaint in so far as it concerns the conditions of his detention from 26 January 2006 until 2 February 2009 must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. 119. In so far as the applicant complained that he had not been afforded adequate medical care during his second detention, the Court takes note of the following elements. The parties did not submit any medical certificates or reports on the applicant’s health during or after his second detention.", "Six months into his detention, the applicant informed the prison authorities that he did not consent to any medical examinations or medical treatment in the orthopaedic centre of Wrocław Prison (see paragraph 49 above) and in October 2007 he withdrew his consent for a scheduled surgery (see paragraph 52 above). Lastly, the authorities made considerate efforts to monitor the applicant’s health and offer him specialist treatment despite his unwillingness to cooperate, arranging his medical check-ups in establishments other that Wrocław Prison (see paragraph 51 above). In the light of all the material in its possession, the Court finds that the authorities complied with their obligation under Article 3 of the Convention to provide the applicant with medical care and treatment adequate to his health requirements at the relevant time. 120. It follows that this part of the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "(iii) The Court’s conclusion concerning the second applicant 121. The second applicant has been detained since 8 November 2000. On an unspecified date, presumably in November 2009, he was placed in a prison cell in which the statutory minimum size requirement of 3 square metres per person was respected. He is currently held in Zaręba Górna Prison and he is not complaining with regard to this penitentiary establishment. That being so, and having regard to the fact that the applicant still has adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code, he should, before having his Convention claim examined by the Court, be required to seek redress at domestic level.", "In any event, as from 6 December 2009, the date on which Article 110 § 2 (f) of the Code of Execution of Criminal Sentences entered into force, a detainee placed in conditions where the area per person is less than the statutory minimum may lodge a complaint with the court and contest a decision of the prison administration to reduce his cell space (see Łatak and Łomiński cited above, §§ 42-43 and 86-87 and §§ 34-35 and 77‑78 respectively). 122. It follows that the application of the second applicant must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B. Merits 1.", "The first applicant 123. The first applicant submitted that from 2001 until 2004 the conditions of his detention in Wołów and Wrocław Prisons had fallen short of standards compatible with Article 3 of the Convention. In particular, he complained that he had been detained in overcrowded cells with less than 3 square metres of space per person and allowed to spend a very limited time outside the cell, i.e. he had only a one-hour long outdoor exercise per day and a right to take only one shower per week. The applicant also complained that he had been afforded inadequate medical care during his first detention.", "2. The Government 124. The Government argued that during his first detention the applicant had not suffered inhuman or degrading treatment which attained the minimum level of severity within the meaning of Article 3 of the Convention. The applicant’s health and life were not in danger as he received regular specialised medical care and treatment. 3.", "The Court’s assessment 125. The case raises the issue of the compatibility of the applicant’s state of health with his detention in the conditions of Wołów and Wrocław Prisons. The Court must also answer the question of whether that situation attained the minimum level of severity to fall within the ambit of Article 3 of the Convention. 126. A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court’s recent judgments in Sławomir Musiał v. Poland (no.", "28300/06, §§ 85-88, ECHR 2009-...(extracts)) and Orchowski v. Poland (cited above, §§ 119-229). 127. The Court notes that the applicant limited his complaint to the period from an unspecified date at the beginning of 2001 until 9 July 2004, that is, a period of approximately three years and six months (see paragraphs 12 and 123 above). He submitted that during all that time he had been held in severely overcrowded cells and that he had a one-hour period of outdoor exercise per day and one shower per week. 128.", "The Government did not submit any information as to the number of inmates sharing the applicant’s cell or the total number of detainees held in Wrocław Prison in 2001 and in Wołów Prison from September 2001 until July 2004 (see paragraph 13 above). Various domestic proceedings which had been instituted by the applicant revealed, however, that Wołów Prison faced, at the relevant time, the problem of overcrowding and that the applicant himself had been affected by it. It was confirmed that eight of the applicant’s cells in Wołów Prison measured approximately 16 square metres and they were shared by up to eight prisoners (see paragraphs 28 and 29 above). 129. The Court has already found in its two pilot judgments of Orchowski v. Poland and Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres had revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (see Orchowski, cited above § 151 and Norbert Sikorski, cited above, §§ 155-156).", "130. Taking all these elements into consideration, the Court finds it established that during approximately three years and six months the applicant was detained in overcrowded cells with less than 3 square metres of personal space and with the possibility of having only a one-hour outdoor exercise per day and one shower per week. 131. Moreover, the Court notes that during his detention the applicant undeniably suffered from Dupuytren’s contracture, a disorder that, if untreated, prevents the fingers and toes from straightening (see paragraph 14 above). 132.", "It appears that in the early stages of his detention prior to 2001, the applicant underwent two operations on his right hand and right foot (see paragraphs 15 and 16 above). A number of expert reports and testimonies of witnesses which had been produced in the course of criminal investigations instituted by the applicant revealed that shortly after the second surgery the applicant had soaked his hand in an unspecified disinfectant and put needles in his healing wound, which had impeded the recovery process (see paragraph 17 above). 133. Furthermore, the material in the Court’s possession shows that the applicant’s condition was monitored by specialised doctors (see paragraphs 18-23 above), despite the fact that the applicant was not always cooperative. Several expert reports were obtained to verify whether or not the applicant’s evolving disorder could effectively be treated within the penitentiary system (see paragraphs 20; 22 and 23 above).", "134. The Court observes, however, that the expert reports were to a large extent contradictory. Whereas in 2001 it was considered that the applicant should undergo reconstructive surgery of his right hand at an orthopaedic clinic of Warsaw Remand Centre (see paragraph 18 above), in January 2002 such a procedure was no longer available and, moreover, the applicant was informed that prison hospitals could not offer him any further diagnostic care (see paragraph 19 above). One month later it was clarified that the applicant had indeed required reconstructive surgery, but not urgently, and that his condition could be improved by physiotherapy available in prison (see paragraph 20 above). It is unknown to the Court whether or not the prescribed physiotherapy was made available to the applicant in prison.", "The fact remains that reconstructive surgery was not performed so long as the applicant’s remained in detention until July 2004. 135. In addition, the Court is struck by the fact that despite the monitoring and treatment which was to be afforded to the applicant in prison, his condition deteriorated to the extent that in March 2003 the contracture of his right-hand little finger was considered so advanced that the finger needed to be amputated (see paragraph 21 above). In 2003 the applicant also qualified for an operation on his two contracted left-hand fingers but the procedure was not scheduled that year (see paragraph 22 above). In April 2004 it was still considered necessary, but the applicant could only seek to undergo such treatment after July 2004 when he was finally granted release from prison (see paragraphs 23 and 24 above).", "The Court is not in a position to speculate whether or not the development of the applicant’s disease could have been arrested or slowed down had he been at liberty and free to seek medical care with the professionals of his choice. Likewise, the accuracy of the medical diagnosis and therapy which was prescribed by prison doctors cannot be verified. It is very apparent in this case, however, that the authorities did not follow up the doctors’ recommendations that the applicant undergo two operations and that the delays in assessing his condition had serious and irreparable consequences on his health, e.g. the recommended amputation of the applicant’s right-hand little finger. Lastly, in the light of an important doubt as to whether the applicant’s condition could effectively be treated within the prison healthcare system, which was raised for the first time as early as January 2002, the Court considers that the authorities did not act in due time in releasing the applicant from prison only in July 2004 and prolonged his suffering resulting from his deteriorating disease.", "136. The Court accepts that the very nature of the applicant’s condition made him more vulnerable than the average detainee. In consequence, his detention in the conditions described above coupled with the authorities’ failure to provide him with adequate surgical treatment or to release him without undue delay to seek such treatment at liberty, must have resulted in stress, anxiety and even physical suffering, and has unnecessarily exposed him to a risk to his health. 137. Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the inadequate medical care and to the inappropriate living conditions during the applicant’s incarceration, which had likely a detrimental effect on his health and well-being, the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading (see Egmez v. Cyprus, no.", "30873/96, § 77, ECHR 2000-XII; Labzov v. Russia, no. 62208/00, § 45, 16 June 2005; and Mayzit v. Russia, no. 63378/00, § 42, 20 January 2005). 138. There has accordingly been a violation of Article 3 of the Convention.", "III. THE REMAINING COMPLAINTS A. Complaints under Article 6 of the Convention and under Articles 2 and 3 of Protocol No. 1 to the Convention 139. The first applicant complained under Article 6 of the Convention of the outcome of several sets of criminal proceedings instituted by him against third parties including doctors, warders and prison administration (see paragraphs 27-29; 39-45; 63-66; 68 and 69 above) and about his failure to obtain a different prisoner’s category (see paragraph 59 above) and an early release from prison (see paragraph 70 above).", "He also complained of the alleged breach of his right to education in that the penitentiary authorities did not authorise him to study at a university outside the prison system (see paragraphs 85-87 above). In addition, the applicant complained of the alleged breach of his right to vote in that in June 2003 in Wołów Prison he was not allowed to cast his vote in the referendum on Poland’s accession to the European Union (see paragraphs 80-84 above). 140. These complaints are incompatible ratione materiae with the provisions of the Convention and Protocols within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. B.", "Complaints about three sets of civil proceedings against the State Treasury 141. The first applicant also complained under Article 6 of the Convention about the alleged shortcomings and the outcome of three sets of civil proceedings for compensation brought by him against the State Treasury. The first set of impugned proceedings (for infringement of personal rights, see paragraphs 30-34 above) ended with the judgment of the Wrocław Regional Court of 31 August 2005, against which the applicant did not appeal. The second set of proceedings (action for damages against the Wrocław Regional Court and Court of Appeal, see paragraph 76 above) appears to be pending. And the third set of impugned proceedings (for compensation for mental distress after a fight in prison, see paragraphs 73‑75 above) ended with the first-instance judgment of 1 March 2005 and it appears that the appeal against this judgment was without prospects of success.", "142. It follows that the complaints concerning the first two sets of proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. The complaint concerning the third set of proceedings is manifestly ill‑founded, being of a fourth-instance nature, and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C. Monitoring of the applicant’s correspondence 143. Lastly, the applicant complained of the alleged monitoring of his correspondence and the alleged fact that the authorities had withheld letters from the Registry of the European Court of Human Rights.", "However, the Court finds that the material in its possession does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 144. 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 145.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 146. The applicant did not make a claim for just satisfaction. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Rejects the Government’s request to strike the application out of the Court’s list of cases; 2. Declares admissible the first applicant’s complaint under Article 3 of the Convention in so far as it concerns his first detention and the remainder of the application, including the second applicant’s complaint, inadmissible; 3.", "Holds that there has been a violation of Article 3 of the Convention in respect of the first applicant’s first detention. Done in English, and notified in writing on 26 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF KOZLITIN v. RUSSIA (Application no. 17092/04) JUDGMENT STRASBOURG 14 November 2013 FINAL 14/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kozlitin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17092/04) 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 Vitaliy Vyacheslavovich Kozlitin (“the applicant”), on 31 March 2004. 2. The applicant, who had been granted legal aid, was represented by Ms O.V. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, their former Representative at the European Court of Human Rights, and subsequently by Mr G. Matyushkin, their Representative.", "3. The applicant alleged, in particular, that his right to defend himself in person had been violated in that the appeal court had dismissed his request to participate in the appeal hearing. 4. On 17 January 2008 the application was communicated to the Government. 5.", "The Government objected to the joint examination of the admissibility and merits of the case. The Court examined and dismissed their objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1976 and lived before his arrest in the Kaliningrad region.", "He is currently serving a prison sentence in a correctional colony in the Kaliningrad region. 7. The applicant stood trial on charges of robbery and murder before the Kaliningrad Regional Court (“the Regional Court”). 8. On 10 June 2003 the Regional Court found the applicant guilty of robbery and aggravated murder, and sentenced him to twenty years’ imprisonment with forfeiture of estate.", "The applicant’s co-defendant, Sh., was found guilty of conspiring to commit robbery, incitement to commit robbery, aiding and abetting, and concealing evidence of murder. 9. Regarding the applicant’s right to appeal against his conviction, the judgment of 10 June 2003 stated as follows: “The judgment may be appealed against to the Supreme Court of the Russian Federation by lodging grounds of appeal with the Kaliningrad Regional Court within ten days of the date of the pronouncement of the judgment. Convicted persons held in detention may appeal against the judgment within the same time-limit, which starts to run from the day when they received a copy of the judgment. If an appeal is lodged, the convicted persons are entitled to apply for participation in the examination of their case by the appeal court.” 10.", "The record of the hearing before the trial court, which was issued on 16 June 2003, stated as follows: “The procedure for lodging an appeal against the judgment within ten days of its pronouncement was explained [to the parties], as was the procedure for convicted persons to lodge appeals within the same time-limit, starting to run from the date on which they received a copy of the judgment. The right to apply for leave to take part in the examination of the case by the appeal court was also explained”. 11. On 17 June 2003 a copy of the judgment of 10 June 2003 was served on the applicant. 12.", "On 24 June 2003 the applicant’s co-defendant appealed against the judgment of 10 June 2003 to the Supreme Court of the Russian Federation (“the Supreme Court”). He submitted that it was him and not the applicant who had committed the murder, but that the trial court had not verified his version of the events. 13. The Government submitted that on an unspecified date the applicant had appealed against the judgment of 10 June 2003. However, the Regional Court had returned his grounds of appeal to him for correction.", "In its accompanying letter the Regional Court advised the applicant that his grounds of appeal should comply with the requirements of Article 375 of the Code of Criminal Procedure (“the CCrP”). The Government did not provide the Court with a copy of that letter. 14. On 5 July 2003 the applicant, who was detained in Kaliningrad remand prison, submitted a corrected version of his grounds of appeal against the judgment of 10 June 2003. He complained, in particular, that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify; police officers had ill-treated him during the pre-trial investigation to extort a confession from him; and his conviction had been based on statements by witness P. and his co-defendant, Sh., given during the pre-trial investigation under pressure by police officers, and which they had refuted before the trial court.", "Moreover, Sh. had confessed before the trial court to having committed the murder himself. The applicant asked the appeal court to quash his conviction. When lodging his appeal, the applicant did not expressly state that he wished to take part in the appeal hearing. 15.", "According to the Government, on 3 November 2003 the Regional Court informed all the participants of the proceedings, including the applicant and his counsel, that the criminal case had been referred to the Supreme Court. 16. On 10 November 2003 the applicant submitted a request to take part in the examination of his appeal by the Supreme Court. On 17 November 2003 the applicant’s co-defendant also applied for leave to take part in the appeal hearing. According to the Government, the Supreme Court received those requests on 26 November 2003.", "17. On 26 November 2003 the applicant submitted additional grounds of appeal, which were received by the Supreme Court on 2 December 2003. However, he did not state in his additional grounds of appeal that he wished to take part in the appeal hearing. 18. On 18 December 2003 the Supreme Court of the Russian Federation (“the Supreme Court”), referring to Articles 375 § 2, 376 and 377 of the CCrP (see Relevant domestic law below), dismissed the requests submitted by the applicant and his co-defendant to take part in the appeal hearing.", "The Supreme Court held as follows: “... on 10 November 2003 Mr Kozlitin submitted a request to take part in the examination of his criminal case by the appeal court. It follows from the materials of the case that the judgment was delivered on 10 June 2003 and copies of that judgment were served [on the convicted persons] on 17 June 2003. ... on 5 July 2003 Mr Kozlitin submitted his grounds of appeal, in which he did not express his wish to take part in the appeal hearing. On 3 November 2003 the case, together with grounds of appeal submitted by the convicted persons, was forwarded to the Supreme Court of RF [Russian Federation] ... The case arrived at the Supreme Court on 10 November 2003.", "It was not until 10 and 17 November 2003 respectively that the convicted persons [the applicant and his co-defendant] submitted requests for participation in the appeal hearing. However, their requests should not be granted, since in accordance with Article 375 § 2 of the UPK RF [CCrP] if a convicted person expresses a wish to take part in the examination of his case by the appeal court, he should indicate this in his grounds of appeal. The convicted persons did not indicate in their grounds of appeal their wish to be brought to the Supreme Court of the RF [Russian Federation]. Instead they lodged such requests five months later, when their case had already arrived at the Supreme Court of the RF”. 19.", "On the same date the Supreme Court examined the appeals lodged by the applicant and his co-defendant against the judgment of 10 June 2003 in their absence. The applicant was not represented at that hearing. The prosecutor was present at the hearing and supported upholding the applicant’s conviction. He requested reclassification of the applicant’s actions in accordance with amendments to the Criminal Code. 20.", "Having studied the materials of the case, the appeal court found that the trial court had verified Sh.’s version of the events whereby he and not the applicant had committed the murder. However, that version had not been confirmed by the materials of the case. The applicant’s alibi had been verified and had been disproved by the statements of witness Shch., which had also been corroborated by other evidence. Furthermore, the defendants’ complaints of unlawful pressure by the police were unsubstantiated and refuted by evidence in the case. 21.", "On the same date the Supreme Court reclassified the crimes committed by the applicant. In particular, it excluded a number of aggravating circumstances and amended the applicant’s sentence to exclude forfeiture of his estate. The Supreme Court upheld the rest of the judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Constitution of the Russian Federation 22. Under the Constitution of the Russian Federation, all persons are equal before the law and the court (Article 19 § 1). 23. Any person convicted of a crime has the right to appeal against the verdict to a higher court in accordance with the procedure established by federal law, as well as to request pardon or mitigation of the punishment (Article 50 § 3). B.", "New Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“the CCrP”) 1. Appeal proceedings (as in force until 1 January 2013) 24. A defendant in criminal proceedings is entitled to participate in the examination of the criminal case by the courts of first instance, second instance and supervisory instance, and in the proceedings in which the court examines the measure of restraint to be imposed (Article 47 §§ 4-16). 25. The appeal court will verify the legality, validity and fairness of the trial court judgment.", "The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law relating to a lesser offence, but has no power to impose a more severe penalty or apply the law relating to a more serious offence (Article 360). 26. If a convicted person wishes to take part in the appeal hearing, he must indicate this in his statement of appeal (Article 375 § 2). 27. The parties will be notified of the date, time and place of an appeal hearing no later than fourteen days in advance.", "The court will decide whether to summon a convicted person held in custody. If the convicted person held in custody has expressed a wish to be present at the examination of the appeal, he or she is entitled to participate either directly in the court session or by video link. The court will decide the form of participation of the accused person in the court session. A defendant who has appeared before the court will always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this will not preclude examination of the case (Article 376 §§ 2-4).", "28. At the hearing the appeal court will hear the statement of the party who lodged the appeal and the objections of the opposing party. The appeal court will be empowered, if a party so requests, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377). 29. The appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378).", "2. Procedure for lodging applications and petitions 30. Chapter 15 sets out a procedure for lodging applications and petitions by participants of criminal proceedings. A suspect or defendant, or his or her defence counsel, has the right to lodge applications with the investigator, prosecutor or a court to conduct procedural actions or to take procedural decisions to establish the circumstances that are of importance for the criminal case and also for ensuring the rights and legitimate interests of the person lodging the application or the person he represents (Article 119). Applications can be lodged at any time in the course of the proceedings in a criminal case (Article 120).", "3. Procedure for reopening of criminal proceedings 31. Chapter 49 of the Code sets out a procedure for reopening of the criminal case in view of new and newly discovered circumstances. It provides, in particular, that a judgment, a court finding or ruling that has taken legal effect may be reversed, and proceedings in the criminal case may be reopened in the event that the European Court of Human Rights has established that in the course of examining the criminal case, a court of the Russian Federation, has violated the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 413). There are no time-limits for reviewing a judgment of conviction in view of new or newly discovered circumstances in favour of the convicted person (Article 414).", "C. Practice of the Russian Constitutional Court 32. The Constitutional Court has examined a number of complaints challenging the compatibility with the Constitution of provisions of the old Code of Criminal Procedure (in force until 1 July 2002) and the new Code of Criminal Procedure (in force since 1 July 2002) governing participation of a person convicted of a criminal offence by a first-instance court in the examination of his appeal against conviction by a second-instance court. 33. In its leading ruling of 10 December 1998 on a complaint lodged by Mr B., the Constitutional Court held as follows: “... implementation of constitutional guarantees of judicial protection ... implies that a convicted person who has expressed a wish to take part in a court hearing may not be deprived of the opportunity to file objections and lodge petitions, acquaint himself with the position of [other participants] expressed in the court hearing and additional materials of the case, if any, and to provide explanations, including in relation to the prosecutor’s opinion. ... Those guarantees may be implemented not only by providing the convicted person with an opportunity to participate in the court hearing in person, but also in other ways.", "In particular, a convicted person may entrust his defence to a lawyer of his own choosing, and provide written replies to the arguments contained in the grounds of appeals, protests and submissions to the appeal court by other participants in the proceedings. What is significant in the constitutional context is that in the interests of justice a convicted person who has expressed a wish to take part in the court hearing should be provided with an effective opportunity to state his position regarding all aspects of the case and bring it to the attention of the court. ... The challenged provision of the [old] CCrP ... does not prevent the appeal court, which is under an obligation to verify the lawfulness and validity of the judgment, from finding that the participation of a convicted person in the court hearing is indispensable and taking measures to ensure his presence at the hearing. The court may also examine the case in the absence of the convicted person if he has not expressed the wish to take part in the court hearing.", "At the same time, those provisions allow the appeal court to dismiss the convicted person’s request to participate in the hearing and to take a final decision in the case without providing him with any other legal means for implementation of his rights ... This results in a deviation from the principle of equality of all persons before the law and the court and in the limitation of the constitutional rights to judicial protection, examination of the case by a tribunal established by law, and review of the judgment by a higher court ... Moreover, this breaches Article 123 of the Constitution, which guarantees that court proceedings will be adversarial and will respect equality of arms. Those guarantees imply that the prosecution and the defence should be provided with equal procedural opportunities to state their position during the examination of the case by the appeal court ...” Taking the above considerations into account, the Constitutional Court held that the challenged provisions of the old CCrP were incompatible with the Constitution in so far as they allowed the appeal court, if it dismissed a convicted person’s request to take part in the hearing, to take a final decision in the case without providing that person with an opportunity to acquaint himself with the materials of the court hearing and to state his position on the questions examined by the court. 34.", "In its further decisions on the complaints challenging the compatibility of the new CCrP with the Constitution, in particular of Article 375 § 2 of that Code, the Constitutional Court further developed its position regarding the participation of convicted persons in the examination of their case by the appeal court. 35. On 15 July 2010 the Constitutional Court refused to examine on the merits a complaint lodged by Mr S. challenging the compatibility with the Constitution of Article 375 § 2 of the new CCrP in so far as that provision allowed the appeal court to examine his grounds of appeal in his absence, since he had applied to participate in the examination of his criminal case by the appeal court not in his initial grounds of appeal but in additional grounds of appeal which were submitted later. The Constitutional Court held as follows: “In accordance with the legal position expressed by the Constitutional Court in its rulings of 10 December 1998, no. 27-П, 15 January 1999, no.", "1-П and 14 February 2000, no. 2-П, and decisions of 10 December 2002, no. 315-О, 11 July 2006, no. 351‑O and 16 November 2006, no. 538-О, providing the parties with an effective opportunity to state their position regarding all aspects of the case is a necessary requirement of judicial protection and a fair trial.", "Depriving the convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court, either by way of his personal presence at the appeal court hearing or by way of video link or any other way, would breach his right to judicial protection and the principle of equality of arms. Article 375 § 2 of the [new] CCrP provides a convicted person with the right to apply for participation in the examination of his criminal case by the appeal court by indicating his wish to attend in his grounds of appeal. The provision’s aim is to provide him with an opportunity to state his position on the case before the appeal court and shall not be regarded as limiting his right to judicial protection and other rights guaranteed by the Russian Constitution. In addition, the provision does not deprive the convicted person of the right to apply for participation in the appeal hearing if he makes such a request not in his grounds of appeal, but in accordance with the procedure provided for by Chapter 15 of the [new] CCrP of the Russian Federation, which places an obligation on the court to take a lawful, reasoned and duly motivated decision on such a request ...” 36. The Constitutional Court confirmed its interpretation of Article 375 § 2 of the [new] CCrP in its decision of 8 December 2011, by which it refused to examine on the merits a complaint lodged by Mr T. challenging the compatibility of that provision with the Constitution.", "Citing its decision of 15 July 2010, the Constitutional Court held as follows: “... a different interpretation of Article 375 § 2 of the [new] CCrP would not only be contrary to Articles 46, 49 and 50 of the Constitution of the Russian Federation and the above-cited legal position of the Constitutional Court of the Russian Federation, but also, contrary to the general principle of equality guaranteed by Article 19 of the Constitution, it would unreasonably worsen the situation of convicted persons held in custody compared to that of the other participants of the criminal proceedings, including convicted persons who have not been deprived of their liberty, whose right to take part in the appeal court hearing is not limited (under Article 376 of the [new] CCrP a convicted person or a person acquitted of all charges who appears before the court will always be entitled to take part in the hearing). Therefore, Article 375 § 2 of the [new] CCrP, taken together with the provisions of chapter 15 of that Code, does not prevent a convicted person from applying for participation in the examination of his criminal case by the appeal court after submitting his grounds of appeal. This implies that the court has an obligation to take a lawful, reasoned and duly motivated decision on such a request ...”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 § 3 (c) THEREOF 37.", "The applicant complained under Article 6 § 3 (c) of the Convention that he had been deprived of an opportunity to defend himself in person during the examination of his appeal against the judgment of 10 June 2003 because the appeal court refused his leave to attend the appeal hearing of 18 December 2003. The relevant parts of Article 6 provide as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...” A. Admissibility 1. Exhaustion of domestic remedies 38.", "The Government argued that the applicant had not exhausted the domestic remedies available to him in respect of the above complaint. In particular, he had not lodged an application for a supervisory review of the decision of 18 December 2003 by which the appeal court refused his leave to attend the appeal hearing of his case. 39. The applicant contested the Government’s submissions. 40.", "The Court has previously found that a supervisory review exercised under the Code of Criminal Procedure in force from 1 July 2002 could not be considered an “effective remedy” within the meaning of Article 35 § 1 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts), and Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 42-45, 2 November 2010). It follows that the Government’s objection as to non-exhaustion of domestic remedies must be dismissed. 2.", "Compliance with the six-month rule 41. The Government considered that the above complaint had been introduced out of time. The statement of facts prepared by the Registry of the Court indicated that the application had been introduced on 31 March 2004. However, the application form submitted by the applicant indicated that he had filled it in on 8 July 2004, that is more than six months after the final decision taken in the applicant’s case. That application was received by the Court on 2 August 2004.", "42. The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. The Court further observes that under Rule 47 § 5 of the Rules of the Court, “The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application”. 43. Turning to the present case, the Court observes that the final decision in the criminal proceedings against the applicant was taken on 18 December 2003.", "In a letter of 31 March 2004 addressed to the Court, the applicant set out a set of facts which gave rise to the present application and the complaint, under Article 6 § 3 of the Convention, that his right to defend himself in person before the appeal court had been violated. It appears from the postmark that the administration of the colony in which the applicant was held dispatched that letter on 2 April 2004. The Government were provided with a copy of the letter. On 8 July 2004 the applicant sent the completed application form to the Court, raising the same complaint. Given that the applicant submitted the completed application form without excessive delay, the Court decides that the date of his first letter to the Court is the date of the introduction of the application (see, by contrast Kleyn and Aleksandrovich v. Russia, no.", "40657/04, § 39, 3 May 2012). It follows that the applicant’s complaint under Article 6 § 3 was submitted within the six-month period after the final decision in the case. Accordingly, the Court dismisses the Government’s objection to this effect. 3. Conclusion 44.", "Having regard to its conclusions in paragraphs 40 and 43 above, the Court considers that the applicant’s complaint about the dismissal of his request to take part in the appeal hearing of 18 December 2003 and to defend himself in person is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The Government 45. The Government considered that the examination of the applicant’s appeal against the judgment of 10 June 2003 complied with the requirements of Article 6 of the Convention. 46. The procedure for lodging an appeal against the conviction was clearly described in the domestic law, which set a time-limit of ten days for lodging an appeal as well as a request for taking part in the appeal hearing. The applicant was duly apprised of that procedure by the trial court at the pronouncement of the judgment and in the judgment itself.", "47. Therefore, if the applicant had wished to take part in the appeal hearing, he should have followed the procedure provided for in the domestic law and lodged such a request together with his grounds of appeal within ten days of receiving a copy of the judgment on 17 June 2003. However, the applicant did not ask the appeal court to grant him leave to attend the appeal hearing either in his initial grounds of appeal which were returned to him for corrections, in his new grounds of appeal lodged on 5 July 2003 or in the additional grounds that he lodged on 26 November 2003. Instead, he submitted such a request separately on 10 November 2003, namely five months after lodging his grounds of appeal. Therefore, the Supreme Court dismissed his request for leave to appear before the appeal court on the grounds that it had not been submitted together with his grounds of appeal, as required by Article 375 § 2 of the new CCrP, but had been submitted five months after the applicant had been served with the judgment.", "Granting a request which was submitted with such a significant delay would have protracted the proceedings and breached the right of other participants to a hearing within a reasonable time. 48. Furthermore, the applicant’s absence from the appeal hearing did not prejudice the fairness of the proceedings, since in any event the appeal court examined the arguments submitted by both the prosecutor and the defence. The applicant thoroughly explained his position on the case in his detailed grounds of appeal. The appeal court carefully examined each of those grounds and found them unsubstantiated.", "49. The Government further submitted that counsel who had represented the applicant before the trial court had not submitted any grounds of appeal against conviction on the applicant’s behalf. The applicant did not ask the appeal court to provide him with legal assistance for the appeal hearing and therefore the appeal court examined his appeal in the absence of defence counsel. (b) The applicant 50. The applicant submitted that the appeal court examination of his criminal case had been as important for him as the trial proceedings, given that the appeal courts in the Russian legal system were entitled to review the case in its entirety.", "He lodged a special request for leave to attend the appeal hearing on 10 November 2003, having received notification that his case had been forwarded to the appeal court. However, it took the Supreme Court more than twenty-two days to examine his request. It then dismissed his request on the very date of the appeal hearing, thereby depriving him of an opportunity to appoint a representative to defend him before the appeal court. The applicant had had good reason to expect that the appeal court would either allow his participation at the appeal hearing or notify him in advance that his application had been refused so that he could have sufficient time to appoint a representative. As a result, the hearing was not adversarial since the appeal court heard the prosecutor, whereas the applicant was neither present nor represented.", "51. The applicant argued that granting him leave to take part in the appeal hearing would not have delayed the proceedings, since he could have taken part in the hearing by means of video link without being transported to the court. 2. The Court’s assessment (a) General principles 52. The Court reiterates that the object and purpose of Article 6 taken as a whole implies that a person “charged with a criminal offence” is entitled to take part in the hearing.", "Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). Based on that interpretation of Article 6, the Court has held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005). 53.", "The personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168). The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appeal court therein (see Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134). 54.", "Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, even though the appellant was not given an opportunity of being heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court (see, among other authorities, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115, as regards the issue of leave to appeal, and Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, p. 13, § 30, as regards the court of cassation). 55. In appeal proceedings reviewing a case as to both facts and law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, judgment of 29 October 1991, Series A no.", "212-C, p. 68, § 33). In order to decide this question, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant’s interests were actually presented and protected before the appeal court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see among many other authorities, Kremzow v. Austria, 21 September 1993, § 59, Series A no. 268-B; Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998‑II; and Hermi v. Italy [GC], no. 18114/02, § 62, ECHR 2006‑...). For instance, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, no.", "50545/99, § 27, 6 July 2004). 56. The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66-67, Series A no. 211).", "57. The Court also 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, 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; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑...), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A).", "Furthermore, in view of the prominent place held in a democratic society by the right to a fair trial, Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to know of the date of the hearing and the steps to be taken in order to take part where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 72, ECHR 2004-IV, and Hermi, cited above, § 76). (b) Application of the above principles to the instant case 58. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. Therefore, it will examine the applicant’s complaints under these provisions taken together (see Van Geyseghem v. Belgium [GC], no.", "26103/95, § 27, ECHR 1999-I). 59. The Court notes at the outset that the proceedings before the trial court comprised a public hearing during which the applicant, his co-defendant and several witnesses were heard in person. Furthermore, it is not disputed that the appeal court also held a hearing at which the prosecutor was heard. The main issue to determine is whether, in the particular circumstances of the case, holding that hearing in the applicant’s absence infringed his right to a fair hearing under Article 6 of the Convention.", "60. The Government’s main argument was that the applicant, by his own fault, lost the opportunity to be present at the appeal hearing because he had failed to inform the authorities of his wish to take part in the hearing by lodging a special request together with his grounds of appeal within ten days of the date on which he received a copy of the judgment. In other words, he had waived his right to be present at the hearing. The applicant admitted that he had lodged his request separately from his grounds of appeal, but considered that the appeal court could have granted his request. 61.", "The Court will first examine whether the departure from the principle that an accused should be present at the hearing could, in the circumstances of the case, be justified at the appeal stage by the special features of the domestic proceedings, viewed as a whole. It will then determine whether the applicant waived his right to be present at that hearing. 62. The Court observes that in accordance with Russian criminal procedure, as it existed at the material time, the appeal courts had jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing. They were empowered to directly examine the evidence and additional materials submitted by the parties.", "As a result of the examination, the appeal courts could dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fresh trial, or amend the judgment (see “Relevant domestic law and practice” above, paragraphs 25, 28 and 29). 63. In his grounds of appeal the applicant contested his conviction on factual and legal grounds. He submitted, in particular, that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify; he also complained that his conviction had been based on inadmissible evidence obtained under duress by police officers and that his co-defendant, Sh., had confessed before the trial court to having committed the murder himself. The applicant asked the appeal court to quash his conviction; the prosecutor asked it to uphold the applicant’s conviction.", "Consequently, the issues to be determined by the appeal court in deciding the applicant’s liability were both factual and legal. The appeal court was called on to make a full assessment of the applicant’s guilt or innocence regarding the charges against him. 64. The Court further observes that the proceedings at issue were of utmost importance for the applicant, who was sentenced by the first-instance court to twenty years’ imprisonment and was not represented at the appeal hearing of 18 December 2003. It does not lose sight of the fact that the prosecutor was present at the appeal hearing and made submissions.", "65. Having regard to the criminal proceedings against the applicant in their entirety and to the above elements, the Court considers that the appeal court could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. Neither could it ensure equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the prosecutor at the hearing. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearing. 66.", "The Court further observes that on 10 November 2003 the applicant unequivocally expressed his wish to take part in the appeal court examination of his criminal case. However, the Supreme Court dismissed his request on the grounds that it had been submitted separately from his grounds of appeal and five months after he had received a copy of the judgment. 67. In this regard the Court notes that under Russian criminal procedure law, as in force at the material time, the applicant was entitled to participate in the hearing in person or by video link, on condition that he made a special request to that effect (see paragraph 27 above). The Court has already held that a requirement to lodge a special request to take part in the appeal hearing would not in itself contradict the guarantees of Article 6 of the Convention if the procedure was clearly set out in the domestic law (see Samokhvalov v. Russia, no.", "3891/03, § 56, 12 February 2009 and Sibgatullin v. Russia, no. 32165/02, § 45, 23 April 2009). 68. In the case of Borisov v. Russia (no. 12543/09, §§ 35-41, 13 March 2012) the Court found that the applicant, who had been assisted by a professional lawyer of his own choosing and had been duly apprised of the requirement to request participation in the appeal hearing, but failed to do so, through his own conduct implicitly waived that right.", "In the case of Samokhvalov (cited above, § 60), the Court found that the applicant, who was not assisted by legal counsel, had not been duly notified of the procedure to follow in order to apply for participation in the appeal hearing, and therefore it could not be said that he had waived his right to take part in the appeal hearing in an unequivocal manner. 69. In the case of Sayd-Akhmed Zubayrayev v. Russia (no. 34653/04, §§ 30-31, 26 June 2012) the Court had regard to the domestic practice on the issue and came to the conclusion that the procedure requiring a defendant to request participation in an appeal hearing was not clearly set out in the domestic law. The Court found as follows: “30.", "Regard being had to the domestic practice, the Court cannot subscribe to the Government’s opinion that it was, indeed, incumbent on the applicant to lodge such a request within ten days following his receipt of the copy of the verdict. The Court does not lose sight of the fact that the Supreme Court of Russia provided two irreconcilable opinions on the issue. While the ruling of the Presidium of the Supreme Court of Russia of 12 April 2006 confirms the Government’s assertion, a decision by the Supreme Court’s Military Chamber unambiguously found such reasoning without merit ... 31. In these circumstances, the Court finds that the procedure requiring a defendant to lodge a request for participation in an appeal hearing is not clearly set out in the domestic law. Accordingly, it accepts that the applicant had duly notified the domestic judicial authorities of his intent to participate in the appeal proceedings.", "It is also prepared to accept that two weeks’ notification does not appear unreasonable and would have allowed the appeal court sufficient time to take the necessary steps to provide for such participation”. 70. The Court further observes that since its leading ruling of 10 December 1998, the Russian Constitutional Court has constantly held that providing the parties with an effective possibility to state their position regarding all aspects of the case was one of the necessary requirements of judicial protection and a fair trial. Depriving a convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court, either by way of his personal presence at the appeal court hearing or via video link or any other way, would breach his right to judicial protection and the principle of equality of arms (see paragraph 33 above). Moreover, in other decisions the Constitutional Court has expressly stated that Article 375 § 2 did not deprive the convicted person of the right to apply for participation in the examination of his appeal if he made a such a request not in his grounds of appeal, but in accordance with procedure provided for by chapter 15 of the CCrP of the Russian Federation, which placed an obligation on the court to take a lawful, reasoned and duly motivated decision on such a request (see paragraph 35 above).", "71. Having regard to the above interpretation of Article 375 § 2 of the CCrP by the Constitutional Court, the Court finds that the applicant duly informed the domestic courts of his wish to take part in the examination of his case by the appeal court and that therefore it cannot be said that he waived his right to take part in the appeal hearing. The Supreme Court was under an obligation to take a lawful, reasoned and duly motivated decision on his request in order to provide him with an effective opportunity to familiarise himself with all the materials of the case and to bring his arguments to the attention of the appeal court. 72. However, the Supreme Court – aware that the applicant, who had been sentenced to twenty years’ imprisonment by the first-instance court, denied his guilt and would not be assisted by legal counsel at the appeal hearing – dismissed his request to take part in the hearing without providing him with any other opportunity effectively to defend himself before the appeal court.", "The Court concedes that the applicant was detained in Kaliningrad remand prison, whereas the appeal hearing was to be held in Moscow. In order for the applicant to participate in the appeal hearing in person, certain security measures would have needed to be arranged in advance of his transfer. The Court notes, however, that it was open to the domestic judicial authorities to ensure the applicant’s participation in the appeal hearing by means of a video link prescribed by the domestic rules of criminal procedure and earlier found by the Court to be compatible with the requirements of Article 6 of the Convention (see Marcello Viola v. Italy, no. 45106/04, §§ 63-77, ECHR 2006‑XI (extracts), and Sakhnovskiy v. Russia [GC], cited above, § 98). 73.", "Having regard to its findings in paragraphs 65, 71 and 72 above, the Court considers that the criminal proceedings against the applicant in the present case did not comply with the requirements of fairness. There has therefore been a breach of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 74. The Court has examined the remainder of the complaints raised by the applicant.", "However, in the light of 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 appearances 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 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 76. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. He also claimed reinstatement of his rights at the domestic level. 77. The Government contested the applicant’s claims.", "They considered that in the event that the Court found a violation of the applicant’s rights in the present case, such a finding would constitute an adequate just satisfaction. 78. The Court considers that the applicant must have suffered feelings of injustice and frustration as a result of the violation of his right to a fair hearing. However, the amount claimed appears to be excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.", "The Court further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should as far as possible be put in the position in which he would have been, had requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings in the event of the finding of a violation by the Court (see paragraph 31 above). B.", "Costs and expenses 79. The applicant, who was granted legal aid, did not claim reimbursement of any possible further costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court considers that there is no call to award him any sum on this account. C. Default interest 80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof concerning examination of the applicant’s appeal against the judgment of 10 June 2003 in his absence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof; 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), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIFTH SECTION CASE OF ZAGORODNIY v. UKRAINE (Application no. 27004/06) JUDGMENT STRASBOURG 24 November 2011 FINAL 24/02/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zagorodniy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Mark Villiger,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27004/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Vladimirovich Zagorodniy (“the applicant”), on 17 June 2006. 2. The applicant was represented by Mr V.M. Mikhalin, a lawyer practising in Kostyantynivka, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.", "3. The applicant alleged, in particular, that he had been denied a free choice of defence counsel and that the proceedings against him had been unfair. 4. On 1 July 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in the town of Dimitrov, Ukraine. A. Legal background of the case 6.", "Prior to November 2000 the legal representation of defendants in criminal proceedings could be conducted only by a licensed advocate. The advocate’s rights and obligations, and the required standards of professional competence and conduct were set forth in a separate Act of Parliament (see paragraphs 39 to 42 below). Other persons, including those holding a university law degree, were excluded from providing legal representation in criminal cases. 7. On 16 November 2000 the Constitutional Court found the relevant provisions of the Code of Criminal Procedure unconstitutional and the parliament introduced relevant amendments to the Code in June 2001 (see paragraphs 37 and 38 below).", "B. The criminal proceedings against the applicant 8. On 4 August 2004 the applicant was involved in a traffic accident, in which his car collided with another car. On the next day, criminal proceedings concerning the accident were instituted against the applicant. 9.", "On 9 November 2004 the applicant signed an agreement with Mr M. for legal representation in the above-mentioned criminal proceedings. The latter was a lawyer, who held a university degree in law and who had a private legal practice, but who was not a licensed advocate. 10. On 16 November 2004 the investigator allowed Mr M. to act as defence counsel. 11.", "On 5 August 2005 the Dimitrov Local Court (“the Dimitrov Court”) held a committal hearing in the case and decided to remit the case for additional investigation on the grounds that the applicant’s right to mount a defence had been breached during the pre-trial investigation. The court noted that, in accordance with Article 44 of the Code of Criminal Procedure, the right to provide legal assistance is conferred upon advocates and other legal specialists (the term used to describe degree-educated practicing lawyers who have not been called to the Bar), but the right of the latter to act as defence counsel required to be defined by a specific piece of legislation. As there was no such law authorising a legal specialist with a private practice, such as Mr M., to provide legal assistance in criminal matters, the decision of the investigator to allow such a specialist to take part in the case had been unlawful and therefore the applicant’s right to mount a defence had been violated. The court ordered additional investigation with the participation of an advocate. 12.", "On 10 August 2005 the applicant appealed against the decision of 5 August 2005, claiming that limiting his right to a free choice of defence counsel was contrary to the Constitution and the decision of the Constitutional Court of 16 November 2000 (see paragraph 37 below). 13. On 13 January 2006 the court rejected his appeal. 14. On 24 March 2006 the investigator decided to allow Mr O., who was a licensed advocate, to take part in the criminal case as the applicant’s defence counsel.", "15. On 26 April 2006 the applicant appealed in cassation against the decisions of 5 August 2005 and 13 January 2006. 16. By letter of 3 May 2006, in reply to a request by the applicant that criminal proceedings be instituted against the relevant judge of the Dimitrov Court for alleged deliberate failure to comply with the decision of the Constitutional Court concerning the right to a free choice of defence counsel, the Donetsk Regional Prosecutor’s Office informed the applicant that the court had rightly decided to remove Mr M. from the applicant’s case because he was not a licensed advocate. 17.", "On 11 May 2006 the applicant asked the Dimitrov Court to remit his case for further investigation on the grounds that his right to mount a defence had been violated. 18. On the same date the court rejected his request. The court established that the applicant’s right to mount a defence had been complied with as a result of the participation of Mr O. in the additional investigation. 19.", "On 12 May 2006 the applicant notified the court that Mr O. was not his defence counsel and that he had seen him only once, in April 2006, when he had pointed out to the investigator that he needed defence counsel but did not wish to be represented by Mr O. because he had not been freely chosen by him. Therefore, he contested the court’s conclusion that his right to mount a defence had been complied with. 20. On 22 May 2006 the Supreme Court rejected his appeal on the grounds that decisions as to the remittal of a criminal case were not subject to appeal in cassation. 21.", "On 17 July 2006 the Dimitrov Court rejected a request by the applicant that Mr M. be allowed to represent him as his defence counsel because the law did not provide that a private practice lawyer could act as defence counsel in a criminal case. At the same time, the court accepted the refusal by the applicant to have Mr O. appointed as his defence counsel. 22. In July 2006 the same court returned the applicant’s appeal against the decision of 17 July 2006 without consideration on the grounds that the contested decision was not subject to a separate appeal. 23.", "By a decision of 6 September 2006, following another request by the applicant to institute criminal proceedings against the judge of the Dimitrov Court for alleged failure to comply with the decision of the Constitutional Court, the Dimitrov Prosecutor’s Office again refused to institute criminal proceedings. 24. On 12 March 2007 the Krasnoarmeysk Local Court rejected an appeal by the applicant against the prosecutor’s decision of 6 September 2006. The decision of 12 March 2007 was upheld by the Donestk Regional Court of Appeal on 14 August 2007. 25.", "During a court hearing on 13 March 2007 the Dimitrov Court examined a request from the applicant asking it to accept his dismissal of a lawyer, Mr K., who had been appointed by the court to represent him after the decision of 17 July 2006, and to appoint his wife as his representative. The court allowed his request in part. It allowed the applicant’s wife to be his defence counsel but rejected the applicant’s dismissal of Mr K. on the grounds that the applicant had complained on numerous occasions about a violation of his right to mount a defence and therefore determined that he should be legally represented. 26. On 10 April 2007 the applicant wrote a letter dismissing Mr K. He claimed that the appointed advocates, Mr O. and Mr K., had only formally represented him and had not properly defended him.", "He noted, however, that he did need defence counsel, although not a formally admitted one. 27. On the same date the court rejected the applicant’s dismissal letter, stating that he had claimed that he needed defence counsel. 28. On 21 March 2008 the court rejected the applicant’s request to remit the case for additional investigation.", "It also rejected the applicant’s dismissal of Mr K. and the applicant’s request asking that Mr M. be allowed to take part in the case again. 29. On 27 March 2008 the applicant was found guilty of a breach of traffic rules which had caused medium bodily injury and sentenced to three years’ restraint of liberty (обмеження волі). However, he was discharged from serving his sentence owing to the expiry of the statutory time-limit for the prosecution. He was also ordered to pay compensation for pecuniary and non-pecuniary damage caused to the victims.", "30. The applicant appealed against that judgment, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 31. On 13 June 2008 the Donetsk Regional Court of Appeal upheld the judgment of 27 March 2008 in part. The court noted that there had been no procedural violations that would require the judgment to be quashed.", "At the same time, the quantum of damages had not been substantiated and therefore the court remitted this part of the case for fresh consideration in separate civil proceedings. 32. The applicant appealed in cassation to the Supreme Court, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 33. On 24 February 2009 the Supreme Court upheld the decision of the Court of Appeal.", "In reply to the applicant’s complaint of a violation of his right to mount a defence, the court noted: “It is not worth paying attention to the arguments [submitted in] the cassation appeal by the convict that his right to mount a defence was violated, because, in rejecting the request of the convict, the court reasonably noted that, in accordance with Article 44 of the Code of Criminal Procedure of Ukraine, only a person who is the bearer of an advocate’s licence for practice in Ukraine is allowed to act as defence counsel and M. is not the bearer of such a licence.” 34. By a judgment of 5 February 2009 of the Dimitrov Court, the applicant was ordered to pay compensation to the victims of the traffic accident for pecuniary and non-pecuniary damage caused to them. 35. On 29 April and 30 June 2009 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the judgment of 5 February 2009. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 36. Relevant provisions of the Constitution read as follows: Article 22 “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.” Article 59 “Everyone has the right to legal assistance.", "Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel. 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 the courts and other State bodies.” Article 63 “... A suspect, an accused or a defendant has the right to mount a defence ...” 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 a citizen ... (14) the judicial system, judicial proceedings, the status of judges, the principle of judicial expertise, the organisation and operation of the prosecution service, bodies of inquiry and investigation, the [status of] notaries, bodies and institutions [pertaining to] the execution of punishments, the fundamentals of the organisation and activities of the Bar ...” B. Decision of the Constitutional Court of Ukraine of 16 November 2000 regarding the free choice of defence counsel 37. In this case, the Constitutional Court decided that: “1.", "The provisions of Article 59 of the Constitution of Ukraine, that \"everyone is free to choose his or her own defence counsel”, in terms of the constitutional application of citizen G.I. S. shall be understood as the constitutional right of a suspect, an accused or a defendant in their defence from an accusation ... in order to obtain legal aid, to choose, as his or her defence counsel, anyone who is a legal specialist and who is entitled by law to provide legal assistance [on his or her own account] or on behalf of a legal person. 2. The provisions of part 2 of Article 59 of the Constitution of Ukraine that \"in Ukraine, advocacy acts to ensure the right to mount a defence against an accusation ...\" shall be understood as one of the constitutional guarantees, giving a suspect, an accused or a defendant the opportunity to exercise his or her right to freely choose, as defence counsel in criminal proceedings, an advocate, that is, a person who has the right to provide advocacy. 3.", "The following shall be considered not to be in conformity with the Constitution of Ukraine (unconstitutional): - a provision of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine which limits the right for a suspect, an accused or a defendant to freely choose as his or her own defence counsel, apart from an advocate, another legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person; ... 4. The provisions of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine ... deemed to be unconstitutional, lose their force from the day that this decision by the Constitutional Court has been rendered. C. The Code of Criminal Procedure (as amended in June 2001) 38. Relevant provisions of the Code read as follows: Article 44Defence counsel “Defence counsel is the person who, in accordance with the procedure prescribed by law, shall be authorised to protect the rights and legitimate interests of a suspect, an accused, a defendant, a convict or an acquitted person, and to provide them with necessary legal assistance in criminal proceedings. Persons bearing a licence to exercise the right of advocacy in Ukraine and other legal specialists, who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person shall be allowed to act as defence counsel ...", "The powers of defence counsel to participate in a case shall be confirmed: ... (2) for an advocate who is not a member of the Bar Association by an agreement, for other legal specialists who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person by an agreement or by the authority of the legal person ...” D. The Bar Act of 19 December 1992 39. Section 2 of the Act provides that, in addition to having a university degree in law, an advocate must pass special qualification exams, obtain an advocate’s licence and be sworn in as an advocate of Ukraine. 40. Sections 6 and 7 set forth the professional rights and obligations of the lawyer, including those in respect of evidence gathering and restrictions on representation. 41.", "Section 9 of the Act sets out the provisions for advocate-client confidentiality and section 10 sets forth the privileges enjoyed by the advocate in carrying out his professional activities, including the prohibition on the search and seizure of the advocate’s professional papers without his consent and the special procedure for instituting criminal proceedings against him. 42. Section 13 of the Act provides for special qualifications and disciplinary boards that assess the professional competence of advocates and deal with any disciplinary matters in the event of a breach of the requirements of the Act or other relevant legislation. E. Resolution no. 8 of the Plenary Supreme Court of Ukraine of 24 October 2003 on the application of legislation that ensures the right to mount a defence in criminal proceedings 43.", "The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “In order to ensure the correct and uniformed application by the courts of the legislation that ensures the right of a suspect, an accused, a defendant, a convict or an acquitted person to mount a defence, the Plenary Supreme Court decides: 5. The powers of defence counsel to participate in the case should be confirmed: ... (c) for any other legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person – by the documents specified in the specific legislation which confers on these persons the right to participate in criminal proceedings as defence counsel, as well as by a contract or through the authority of the legal person; ... In deciding whether a legal specialist has the authority to conduct the defence in a criminal case, it should also be established by exactly what law the right to participate in criminal proceedings as defence counsel was conferred on him or her. This should be recognised as the proper practice of the courts, which, in the absence of a specific piece of legislation, do not allow such specialists to conduct the defence in criminal cases ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 44.", "The applicant complained that the domestic authorities had unlawfully denied him the right to a free choice of defence counsel and therefore that the trial against him had been unfair, contrary to Article 6 §§ 1 and 3 (c) of the Convention, which reads insofar as relevant as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... 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 45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 46. The applicant maintained that the decision of the Constitutional Court had clearly indicated that a private practice lawyer could act as counsel in criminal proceedings.", "The lawyer of his choice had had a law degree and had been registered as a private entrepreneur; therefore, he had satisfied the requirements of the law. The applicant considered that the lack of disciplinary liability for private practice lawyers could not be a valid obstacle for the performance of their activities. The applicant also pointed out that the Resolutions of the Supreme Court could not serve as a legal basis for restricting his right to choose a lawyer. 47. The applicant further maintained that the lawyers appointed in his case had proved to be ineffective.", "He noted that the domestic authorities had allowed his wife, who had not had a law degree, to act as his second defence counsel, but had not allowed a lawyer, M., to act in his defence. 48. The Government noted that under the Court’s case-law the right to legal assistance of one’s own choosing was not absolute and could be subject to restrictions. They maintained that the Constitutional Court had found unconstitutional the provisions of the Code of Criminal Procedure concerning the choice of defence counsel being limited to a member of the Bar and that Parliament had accordingly amended the relevant provisions of the aforementioned Code. The new provisions of the Code, however, had required a further legislative act, which had not been adopted.", "The Government observed that the applicant had disagreed with the Resolution of the Supreme Court, which meant that he had misunderstood domestic law, given that the Resolution of the Supreme Court had been a logical continuation of the interpretation of the Constitutional Court. Therefore, they considered that the refusal to allow Mr M. to act as the applicant’s defence counsel had not been contrary to the provisions of domestic law and that there had been no violation of Article 6 § 3 (c) of the Convention. 49. The Government maintained that allowing a legal specialist to conduct the defence in the applicant’s case would not have provided the applicant with sufficient legal assistance. Given that the legal status of a specialist, in other words a lawyer who is not a licensed advocate, had not been determined by law, such a specialist was not subject to the Rules of Advocate’s Ethics and to qualification requirements established for advocates.", "Furthermore, such a specialist was not disciplinarily liable. 50. The Government finally maintained that the interests of justice had not required the applicant’s representation by Mr M. and that the domestic authorities had provided the applicant with legal assistance by other counsel. Moreover, the applicant had not been prevented from defending himself or presenting his version of events. 2.", "The Court’s assessment 51. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 49, Reports of Judgments and Decisions 1997-III, p. 711). 52. The Court reiterates that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II).", "A person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Hanževački v. Croatia, no. 17182/07, § 21, 16 April 2009, with further references). However, this latter right cannot be considered to be absolute either and, consequently, the national courts may override that person’s choice when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237‑B). Furthermore, the legal requirement for defence counsel to hold a law degree is not in violation of the above provision (see Shabelnik v. Ukraine, no.", "16404/03, § 39, 19 February 2009). 53. In the present case, the applicant’s right to freely choose his defence counsel was restricted, as the representative of his choice was a lawyer, but not a licensed advocate. In the Court’s opinion, such a restriction on the free choice of defence counsel may not in itself raise an issue under Article 6 § 3 (c) of the Convention, since the particular legal qualifications can be required to ensure the efficient defence of a person (see Mayzit v. Russia, no. 63378/00, § 68, 20 January 2005) and the smooth operation of the justice system (see Meftah and Others v. France [GC], nos.", "32911/96, 35237/97 and 34595/97, § 45, ECHR 2002‑VII). However, as the applicant argued such restriction had been found unconstitutional as early as November 2000 (see paragraph 37 above), the relevant domestic legislation had to be brought in compliance with the Constitutional Court’s decision. The legislative amendments to this end had been introduced in June 2001, but, according to the Government, further legislative actions were required (see paragraph 48 above). On this latter point, the applicant had disagreed with the Government, considering that the existing legislation did not provide for the restriction on his choice of a lawyer and his choice had been restricted due to wrong interpretation of the criminal procedural law by the Supreme Court. On this point, the Court notes that it is not its task to decide whether the restriction of the applicant’s choice of a lawyer resulted from a lack of further legislative amendments, as suggested by the Government, or from inconsistent practice in interpretation of the decision of the Constitutional Court, as maintained by the applicant.", "54. The Court notes that it was not suggested by the domestic authorities that the interests of justice were a justification for this restriction on the applicant’s choice of counsel. The Court considers that, even assuming that the restriction results, as the Government suggested, from a yet to be completed process of bringing the criminal procedural legislation in line with the decision of the Constitutional Court, such situation of continuous uncertainty in the relevant domestic legislation presently remains. The Resolution of the Plenary Supreme Court adopted in 2003 did not bring about consistent and uniform application of the law. The Court previously held that an interference with the Convention rights cannot be considered lawful merely because of the absence of any legal provision with which it may conflict.", "The interference itself must have sufficient basis in domestic law to avoid being arbitrary (see, mutatis mutandis, Svershov v. Ukraine, no. 35231/02, § 48, 27 November 2008, and Garkavyy v. Ukraine, no. 25978/07, § 74, 18 February 2010). 55. In the Court’s opinion, leaving the issue of curtailment on the free choice of a defence counsel unsettled for a long period of time, the State authorities created a situation incompatible with the principle of legal certainty which is implied in the Convention and constitutes one of the basic elements of the rule of law (see, mutatis mutandis, Ştefănică and Others v. Romania, no.", "38155/02, § 31, 2 November 2010). Accordingly, the applicant’s right to a free choice of counsel had been restricted in a manner incompatible with the requirements of Article 6 §§ 1 and 3 of the Convention 56. Thus there has been a violation of these provisions. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 57.", "Lastly, the applicant complained about the length of the criminal proceedings against him. He also referred to Article 8 of the Universal Declaration of Human Rights. In his later submissions he further complained that one of the witnesses for prosecution had not been examined in court. 58. 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.", "It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60.", "The applicant claimed 2,375.27 United States dollars (USD) in respect of pecuniary damage and 25,000 euros (EUR) in respect of non-pecuniary damage. 61. The Government considered that there was no causal link between the alleged violation and the damages claimed. 62. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction in the circumstances of the present case.", "B. Costs and expenses 63. The applicant also claimed 12,361 Ukrainian hryvnias (UAH) (around EUR 1,082) for costs and expenses incurred before the domestic courts and before this Court. 64. The Government maintained that not all of the claimed costs and expenses had been documented and proved to be relevant to the present case.", "65. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 250 for the proceedings before the Court. C. Default interest 66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning denial of the applicant’s right to a free choice of defence counsel and unfairness of the proceedings against him admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Ukrainian hryvnias 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 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ŠVOLÍK v. SLOVAKIA (Application no. 51545/99) JUDGMENT STRASBOURG 15 February 2005 FINAL 15/05/2005 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 Švolík v. Slovakia, 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,MrJ. Borrego Borrego,MrJ. Šikuta, judges, and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 25 January 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 51545/99) 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 a Slovakian national, Mr Jozef Švolík (“the applicant”), on 10 September 1999. 2. The applicant was represented by Mr M. Benedik, a lawyer practising in Bratislava. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Kresák.", "3. The applicant alleged, in particular, that his right to a hearing within a reasonable time had been violated and that he had no effective remedy at his disposal in that respect. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By a decision of 18 May 2004 the Court declared the application admissible. 6. The Government, but not the applicant, filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1933 and lives in Bratislava. A. Proceedings concerning the applicant's claim of 5 January 1994 8. On 5 January 1994 the applicant lodged an action for damages relating to the defendant's failure to comply with a lease contract.", "On 25 January 1994 he paid the court fees. On 21 March 1994 the defendant co-operative submitted its memorial to which the applicant replied on 9 May 1994. 9. On 21 October 1996 the applicant complained to the president of the Bratislava City Court that there was no progress in his case. 10.", "On 31 October 1996 the Bratislava City Court informed the applicant that it had transferred the case to the Bratislava II District Court. The latter received the file on 5 November 1996. As the Bratislava II District Court considered that it lacked jurisdiction to deal with the case, it requested the Supreme Court to determine the issue. On 24 February 1997 the Supreme Court found that the case fell within the jurisdiction of the Bratislava Regional Court which had taken over the case files of the former Bratislava City Court. The Regional Court received the Supreme Court's decision on 2 May 1997.", "11. On 4 March 1998 the Bratislava Regional Court held a hearing and decided to adjourn the case. On 18 March 1998 the applicant submitted further information. Between 8 and 27 October 1998 the file was submitted to the Ministry of Justice. 12.", "A further hearing before the Bratislava Regional Court was held on 22 February 1999. On 28 May 1999 the Regional Court heard two witnesses. Another hearing before the Bratislava Regional Court scheduled for 24 August 1999 had to be cancelled as a witness failed to appear. The Regional Court therefore requested the Poprad District Court to hear the witness. 13.", "On 15 March 2001 the Bratislava Regional Court ordered the defendant to pay 3,400 Slovakian korunas (SKK) to the applicant and rejected the remainder of the latter' action. On 12 April 2001 the applicant appealed. 14. By two decisions dated 2 July 2001 the Bratislava Regional Court dismissed the applicant' request for waiver of fees of the appellate proceedings and instructed the applicant to pay those fees. On 31 August 2001 the Supreme Court upheld the Regional Court's decision to dismiss the applicant's request for waiver of court fees.", "On 9 October 2001 the applicant filed an appeal on points of law against the Supreme Court's decision of 31 August 2001. 15. On 18 January 2004 the applicant informed the Court that the proceedings concerning his action were still pending. B. Proceedings before the Constitutional Court 1.", "The first set of constitutional proceedings 16. On 16 June 1998 the Constitutional Court found that the applicant's constitutional right to a hearing without undue delays had been violated in the above proceedings concerning his claim for damages. The Constitutional Court noted, in particular, that the Bratislava City Court had taken more than two years to transfer the case, for reasons of jurisdiction, to the Bratislava II District Court and that the Bratislava Regional Court had remained inactive for ten months after it had received the Supreme Court's decision of 24 February 1997. 2. The second set of constitutional proceedings 17.", "On 13 March 2002 the applicant filed a complaint with the Constitutional Court alleging a violation of his constitutional rights to a hearing without undue delays and to compensation for damage. On 2 May 2002 the Constitutional Court declared admissible the complaint concerning the alleged delays in the proceedings brought on 5 January 1994. In its decision the Constitutional Court noted that the relevant part of the complaint followed its finding of 16 June 1998. It further rejected the remainder of the applicant's complaint noting, in particular, that it lacked jurisdiction to decide on claims for damages relating to unlawful decisions of public authorities or their erroneous official conduct. 18.", "In its finding of 12 November 2003 the Constitutional Court concluded that the Bratislava Regional Court had violated the applicant's constitutional right to a hearing without unjustified delay in proceedings concerning the applicant's above claim for damages. The Constitutional Court examined the period after the delivery of its finding of 16 June 1998 and held, in particular, that the Regional Court had remained inactive for two years between September 2001 and November 2003. The Constitutional Court ordered the Bratislava Regional Court to proceed with the case without further delay. Finally, the Constitutional Court granted SKK 20,000[1] to the applicant as just satisfaction. The decision states that it had thereby regard to the overall length of the proceedings before the Regional Court and to the particular circumstances of the case.", "C. Applicant's claim for damages under the State Liability Act of 1969 19. Since at the relevant time the Constitutional Court lacked jurisdiction to order that the applicant be compensated for the violation of his right to a hearing without undue delay which it had found on 16 June 1998, he claimed compensation for delays in the proceedings under the State Liability Act of 1969 with reference to the Constitutional Court's finding on 16 June 1998. On 17 November 1998 the Ministry of Justice dismissed the request and informed the applicant that he could seek redress before a court. 20. The applicant filed an action against the Ministry of Justice claiming (i) protection of his personal rights under Article 11 et seq.", "of the Civil Code and (ii) compensation for non-pecuniary damage under the State Liability Act of 1969. He referred to the Constitutional Court's finding of 16 June 1998. 21. On 26 May 1999 the Bratislava I District Court dismissed the applicant's action. It found that the defendant Ministry had not interfered with the applicant's personal rights when determining his claim for compensation.", "As to the claim for non-pecuniary damages under the State Liability Act of 1969, the court held that the damages claimed corresponded to lost income and related to the subject matter of the compensation proceedings which the applicant had brought on 5 January 1994 and which were still pending. The applicant had therefore to claim compensation from persons who were liable for such damage. 22. The applicant appealed and claimed that the above Constitutional Court's finding was a valid ground for compensating him for delays in the proceedings brought on 5 January 1994. 23.", "On 16 November 1999 the Bratislava Regional Court upheld the District Court's judgment of 26 May 1999. The appellate court found that the applicant had not shown that, as a result of the courts' dealing with his case, he had suffered material damage which could be expressed in terms of money and which could be redressed by means of the payment of a sum of money to him. As regards the applicant's argument that he had suffered damage of a non-pecuniary nature as a result of delays in the proceedings in question the Regional Court held: “Cases in which the State is liable for damage caused by unlawful decisions delivered by a court in the context of judicial proceedings are specified in Act No. 58/1969 on liability for damage caused by the decision of a State authority or by its erroneous official conduct, and the present case does not fall within one of the classes of case in which compensation can be granted.” II. RELEVANT DOMESTIC LAW AND PRACTICE 1.", "The Constitution and the relevant practice 24. Article 48(2) provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 25. Pursuant to Article 130(3), 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. 26.", "According to its case-law under the former Article 130(3), 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 were violated. 27. 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), 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). 28. It has been the Constitutional Court's practice, in cases where it earlier found a violation of Article 48(2) of the Constitution, to formally entertain further complaints about delays in the same proceedings only to the extent that they relate to the period after the delivery of the first finding of the Constitutional Court.", "In dealing with such cases the Constitutional Court can, where it considers it appropriate, to take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48(2). 29. Article 144(1) provides that judges are independent and bound only by law. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide. 2.", "The State Liability Act of 1969 30. Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ's decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can only be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 3.", "Regulation No. 32/1965 31. Regulation No. 32/1965 governs compensation for damage caused to a person's health. Section 2 provides for compensation for pain resulting from damage to a person's health, subsequent medical treatment and the elimination of the effects of damage to health.", "The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation. 32. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person's health which are of a passing character or of short-term changes in a person's health which do not require medical treatment or which cannot be established in an objective manner. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 33.", "In its decision on the admissibility of the case the Court joined to the merits the Government's objection relating to the exhaustion of domestic remedies. 34. In particular, the Government referred to the applicant's allegation that he had contracted diabetes as a result of suffering related to the excessive length of the proceedings and that it had also caused insomnia. They argued, with reference to the opinion of an expert, that the applicant could have claimed compensation under the State Liability Act of 1969 read in conjunction with Regulation No. 32/1965.", "35. The Government further submitted that, following the delivery of the Court's judgment in the case of Kudła v. Poland (application no. 30210/96, judgment of 26 October 2000), the applicant could have requested, with reference to Article 144 of the Constitution, that the domestic courts should apply the State Liability Act of 1969 in accordance with the requirement of an effective domestic remedy under Article 13 of the Convention, as interpreted by the Court. In the Government's view, in such case the domestic courts would be obliged to compensate the applicant for non-pecuniary damage resulting from the protracted length of the proceedings. 36.", "The applicant contended that the remedy under the State Liability Act of 1969 taken in conjunction with Regulation No. 32/1965 was not effective as it was not capable of directly redressing the alleged violation of his right under Article 6 § 1 of the Convention and that it did not permit the obtaining of compensation for damage of non-pecuniary nature relating to excessive length of proceedings. He further pointed out that diabetes was not included among diseases for which compensation could be granted under Regulation No. 32/1965, that it had been diagnosed after he had filed the application and that, in any event, damage to health was not the only damage of a non-pecuniary nature which he had suffered as a result of the length of the proceedings. 37.", "The Court notes that the remedy invoked by the Government may result in compensation for damage to health occasioned by excessive length of proceedings provided that a link between the two is established. Under section 2(2) of Regulation No. 32/1965, compensation for pain is not payable in cases of simple reactions affecting a person's health which are of a passing character or of short-term changes in a person's health which do not require medical treatment or which cannot be established in an objective manner. Even admitting that the applicant could have obtained redress in respect of damage to his health which can be established in an objective manner, the Court is not satisfied that this remedy was capable of providing appropriate redress in respect of his complaint under Article 6 § 1 about the excessive length of the proceedings. In particular, it has not been shown that the relevant law permitted the domestic courts to compensate the applicant for non-pecuniary damage other than that occasioned to his health and which the Court usually takes into account when deciding on just satisfaction where it finds a violation of Article 6 § 1 of the Convention.", "38. Similarly, the Court is not satisfied that the applicant's possibility of obtaining redress by requesting the domestic courts to interpret and apply the State Liability Act of 1969 in accordance with the Court's case-law was sufficiently certain in practice and offered reasonable prospects of success (see, mutatis mutandis, Pavletić v. Slovakia, no. 39359/98, § 71, 22 June 2004). 39. Accordingly, the Government's preliminary objection must be dismissed.", "II. THE APPLICANT'S VICTIM STATUS 40. The Court notes that in its finding of 12 November 2003 the Constitutional Court concluded that the Bratislava Regional Court had violated the applicant's constitutional right to a hearing without unjustified delay. While it formally examined only the period subsequent to the delivery of its finding of 16 June 1998, the decision states that, when determining the amount of just satisfaction, the Constitutional Court had regard to the overall length of the proceedings before the Regional Court. 41.", "Given that the length of the proceedings in issue exceeded 10 years, the Court considers that the just satisfaction which the Constitutional Court granted to him, that is the equivalent of approximately 500 euros, did not provide adequate and sufficient redress to the applicant in respect of the alleged violation of Article 6 § 1 of the Convention (see, a contrario, Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004, with further references). The applicant can therefore still claim to be a victim of a violation of his Convention rights within the meaning of Article 34 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 42.", "The applicant complained that the length of the proceedings in his case was excessive. He 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...” 43. The Government admitted, with reference to the Constitutional Court's findings, that there had been certain delays in the proceedings complained of. 44. The proceedings in issue were brought on 5 January 1994 and according to the information submitted by the parties, they have not yet ended.", "Having regard to the documents before it, the Court concurs with the Constitutional Court's findings of 16 June 1998 and of 12 November 2003 that the length of the proceedings was excessive. 45. Accordingly, there has been a violation of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 46.", "The applicant complained that he had no effective remedy at his disposal as regards his complaint under Article 6 § 1 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.” 47. The Government contended that an action for compensation under the State Liability Act of 1969 in conjunction with Regulation No. 32/1965, taken together with a complaint under Article 127 of the Constitution as effective since 1 January 2002 represented, taken as a whole, an effective remedy for the purpose of Article 13. 48.", "The applicant disagreed. 49. In the light of its above finding under Article 6 § 1 of the Convention and having regard to the fact that a new remedy under Article 127 of the Constitution has been available in Slovakia since 1 January 2002 in similar cases, the Court finds that it is not necessary to examine the applicant's complaint under Article 13 of the Convention (see Žiačik v. Slovakia, no. 43377/98, § 50, 7 January 2003). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 51. Under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 52. On 25 May 2004, after the present application had been declared admissible, the Court invited the applicant to submit his claims for just satisfaction. He did not submit any such claims within the time-limits fixed for that purpose.", "53. In these circumstances, the Court makes no award under Article 41 of the Convention (see, for example, Ryabykh v. Russia, no. 52854/99, §§ 67–68, ECHR 2003‑X). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection; 2.", "Holds that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that it is not necessary to examine the complaint under Article 13 of the Convention; 5. Decides to make no award under Article 41 of the Convention. Done in English, and notified in writing on 15 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O'BoyleNicolas BratzaRegistrarPresident [1] SKK 20,000 is the equivalent of approximately 500 euros." ]

[ "FIRST SECTION CASE OF YUDINA v. RUSSIA (Application no. 52327/08) JUDGMENT STRASBOURG 10 July 2012 FINAL 22/10/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yudina v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 19 July 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "52327/08) 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, Ms Irina Klavdiyevna Yudina (“the applicant”), on 17 June 2008. 2. The applicant was represented by Ms Ye. Burmitskaya and Ms O. Koynova, lawyers practising in Novokuznetsk, Russia, and Mr W. Bowring, Mr P. Leach and Ms J. Evans, lawyers practising in London, United Kingdom. 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 she had been subjected to ill-treatment by law-enforcement officers and that the ensuing investigation had not been effective. 4. On 9 February 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 1967 and lives in Yegultys, Kemerovo Region. A. Use of force against the applicant on 26 December 1998 1.", "The version of the events as established in the course of the official investigation 6. On 18 December 1998 the Kiselevsk Town Department of the Interior opened a criminal investigation in respect of a robbery and theft of a car. According to undisclosed sources, the stolen car was being kept in a garage belonging to the applicant’s husband. 7. On 26 December 1998 six policemen, V., R., Sn., St., Bl.", "and Bk. went to the applicant’s house, in three cars, to follow up on the information received from the source. V. knocked on the door and opened it himself. In the house, he saw the applicant and her eleven-year old daughter. He showed his ID to the applicant and the policemen entered the house.", "They saw a gun holster on a hook in the hallway and asked the applicant about it and the whereabouts of her husband. The applicant shouted at them and ordered them to leave. She went outside with them and told her daughter to lock the entrance door. She threatened to set her dogs on the policemen. In order to neutralise the applicant and to prevent her from interfering with the inspection of the courtyard, V. held her by the arms and put her into one of the police cars.", "The applicant got out of the car and kicked R., who tried to stop her, in the groin. At this point she slipped and fell down. She bit R.’s fingers. R. got his hand free and together with St. handcuffed the applicant and put her back in the car. 8.", "Meanwhile, Sn. went to the sauna which was in the courtyard. The applicant’s husband was there. When Sn. explained the purpose of their visit, he let them into the house.", "R. brought the applicant in and took off the handcuffs. The applicant’s husband showed them his guns and the relevant documents. They also looked into the garage. The stolen car was not there and the policemen left. 2.", "The applicant’s version of the events 9. On 26 December 1998 the applicant and her eleven-year old daughter were in their house. Her husband and their ten-year old son were in the sauna in the courtyard. At 6 p.m. seven men burst into the house. The first one hit her immediately in the face “to bring her to her senses”, as he put it.", "She asked for a search warrant and for civilian witnesses to be present: the same man hit her again. She asked the men to leave. They said that they would not leave until they had turned the place upside down. The applicant ran out of the house to call the neighbours. The men ran after her.", "She told the daughter to lock the door, which she did. The men tried to break down the door. Then one of them suggested breaking a window instead. They asked where her husband was. She told them that he was in the sauna.", "The men seemed surprised. They thought he should have been in prison. The applicant shouted for help. She ran, and got as far as the gate, but the men knocked her down, pushed her face into the snow and kicked her. One of them tried to gag her with a glove.", "Someone pulled her by the hair and dragged her to the car. They handcuffed her. They hit her head against the car. One of them grabbed her neck and tightened their grip. They kicked her and tore her mouth.", "Then they put her in the car. One man stayed by the car to guard her and the rest of them went back into the house. 3. The applicant’s condition 10. On 26 December 1998 the applicant was admitted to hospital.", "According to the applicant’s medical file maintained by the hospital, the applicant was diagnosed with a contusion of the left kidney, a closed abdominal contusion (закрытая травма живота), a contusion of the front abdominal wall (ушиб передней брюшной стенки), contusion of the lumbar spine (ушиб поясничного отдела позвоночника) and concussion. She also had a bruise near her lower lip. 11. On 13 January 1999 the applicant underwent a forensic medical examination conducted by local experts. The experts did not confirm the diagnosis indicated in the applicant’s medical file, except for the contusion of the kidney and the bruise near the lower lip, which were classified as “not serious damage to health”.", "They further noted that those injuries could have been caused by blows with a blunt instrument shortly before the applicant’s admission to hospital. 12. On 17 March 1999 the applicant underwent a second forensic examination which, in substance, reiterated the findings of the experts on 13 January 1999. In addition, the experts explained that the kidney contusion must have been caused by a blow from a blunt instrument or collision with a blunt object or by a fall on to a flat surface. 13.", "On 12 May 2000 the regional medical forensic experts presented their findings. They subscribed, in substance, to the previous examinations’ results and accepted that the applicant had suffered from concussion, which could have been caused by a fall. As regards the origin of the contusions of the kidney and lower lip, the experts ruled out the possibility that they had been caused by a fall on to a floor or the ground. 14. On 7 October 2000 the Medical and Social Expert Commission found that the craniocerebral injury the applicant had sustained in December 1998 had caused her to acquire a Category 2 disability.", "15. On 20 December 2000 the applicant underwent another forensic examination, at the Altai Region forensic expert institution. The forensic expert panel noted as follows: “On the basis of the ... medical documents, the forensic medical panel concludes that [the applicant] had the following bodily injuries: 1.1 Rupture inside the left renal capsule (подкапсульный разрыв левой почки). This injury was caused by a blunt blow (inflicted possibly by a booted foot or a fist). It could not have been caused by the applicant’s falling on to an even surface or a prominent object.", "A life-threatening injury, it should be classified as severe damage to the applicant’s health... 1.2 Injuries to the lower lip and the left corner of the mouth, accompanied by swelling of the soft tissue of the lip, could have been caused by one (or two) blunt blows administered to the [applicant’s] lower lip area, possibly by a fist. Those injuries could not have been caused by a fall and did not result in any damage to the [applicant’s] health.” 16. As regards the applicant’s allegations that she had received multiple blows to her body, head or legs, the experts did not discern any medical evidence to confirm them. 17. Dr B. gave a separate opinion on the results of the applicant’s examination.", "Taking into account the applicant’s medical documents and the witness statements, he considered that the applicant could have sustained the injuries, including the contusion on the lower lip, the craniocerebral injury, rupture of the left kidney, and bruises on the legs and arms as a result of the beatings she had allegedly been subjected to. B. Ensuing investigation 1. Initial proceedings 18. On 26 December 1998 the hospital where the applicant had been admitted reported her injuries to the local police station. 19.", "On 27 December 1998 F., a driver working for the road police, submitted a report to his superiors. He indicated that he had been driving one of the three cars which had been at the applicant’s house the day before. Six policemen had entered the house. Some twenty minutes later they had brought out a woman. She was handcuffed and her face was covered with blood.", "They had put her into his car. She stayed there for another twenty ot twenty-five minutes. Then the policemen took her back into the house. 20. On 30 December 1998 the applicant lodged a complaint of police brutality with the Kiselevsk Town Department of the Interior.", "21. On 6 January 1999 the Prokopievsk Town Prosecutor opened a criminal investigation in respect of the applicant’s allegations. It was discontinued for lack of corpus delicti on 5 April 1999. 22. On 13 August 1999 the Regional Deputy Prosecutor quashed the decision of 5 April 1999 and ordered a further investigation, which was completed on 9 June 2000.", "23. As part of the ensuing investigation, the prosecutor questioned the alleged perpetrators, who denied the applicant’s allegations. They provided the following account of the events of 26 December 1998: “[The police officers] denied that they had beaten [the applicant]. They explained that their task was to find out whether [the applicant’s husband] was keeping a stolen car [at his place]. They entered the house, identified themselves to the applicant and showed her their IDs.", "They asked her about a pistol holster they saw in the house. The applicant asked them to leave. She shouted, without answering their questions. They went outside. In order to calm down the applicant, who wanted to set the dogs on them, policeman V. took hold of her and took her to a police car.", "The applicant shook him off and started screaming. They put her in the back seat of the car and left her there. Policemen R. and S. stayed by the car and the rest of them went back to the house when they saw the applicant’s husband and son going in. The applicant opened the car door to escape. R. tried to stop her, but she kicked him in the groin.", "She slipped and hit her back against the car when falling down. R. tried to help her stand up, but she bit his finger. When trying to get his finger out of the applicant’s mouth, R. might have caused her a bruise on the lower lip. None of them hit the applicant. She continued to resist and R. and S. had to handcuff her.", "Then they put her back in the car. R. went inside the house and put some iodine on the bite. The applicant’s husband asked the policemen to bring her into the house and they did so. They checked the cabinet where the applicant’s husband kept his guns, and the garage, and then left.” 24. The applicant was questioned by the prosecutor on several occasions.", "She also repeated her accusations in the presence of the accused. The prosecutor noted, however, that her version of the events was contradictory concerning the number of blows she had received and the number of the alleged perpetrators. Each time she was questioned she gave a different number. At the beginning she did not identify policeman M. as one of the perpetrators. Later she changed her mind.", "The prosecutor concluded that the applicant’s testimony was not reliable. 25. The applicant’s husband, when questioned in the course of the investigation, corroborated the applicant’s testimony. He submitted that two of the policemen were sober and the rest of them seemed to be inebriated. His daughter told him that the policemen had beaten up the applicant in her presence.", "He submitted that when the policemen had brought the applicant into the house her face was covered with blood, she was handcuffed and her hands were bluish. After the policemen had left, he and Bez., the applicant’s brother had taken her to hospital. 26. The prosecutor decided against questioning the applicant’s daughter, who was unable to identify the perpetrators. 27.", "K., one of the applicant’s neighbours, submitted that on 26 December 1998 he had heard a woman screaming in the street. He went outside and saw three cars near the applicant’s house. He also saw a woman lying on the ground and three men kicking her. He was unable to identify the alleged perpetrators. 28.", "L., another neighbour, testified that Bez., the applicant’s brother, had asked her to come to the applicant’s house after the incident. L. had not seen the applicant. The policemen seemed to be drunk. 29. Neighbours M. and S. testified that they had seen several men beating someone.", "They could not provide any further details about the perpetrators or the victim. 30. Ms B., the applicant’s sister-in-law, testified that she had visited the applicant in hospital on 4 January 1999. The applicant’s legs, arms and back were covered with bruises. The skin on her jaw was yellowish.", "31. On the basis of the evidence collected, the prosecutor concluded that the applicant’s allegations were unsubstantiated, and discontinued the proceedings for lack of corpus delicti on 9 June 2000. 2. Subsequent developments 32. On 26 June 2000 the decision of 9 June 2000 was quashed and the matter was remitted for further investigation.", "33. Between 25 August 2000 and 7 August 2002 the prosecutor’s office discontinued the investigation on six occasions for lack of corpus delicti Each time, in response to the applicant’s complaint, the superior prosecutor or the court ordered further investigation. The relevant final decisions were taken on 20 February, 4 May, 5 June and 1 August 2001, and 4 March and 7 August 2002. 34. On 23 September 2002 the Town Prosecutor’s Office discontinued the investigation.", "35. On an unspecified date the General Prosecutor’s Office of the Russian Federation reviewed the case file at the applicant’s request. It was noted that “the investigation had been conducted with a low level of professionalism and without due supervision by those in charge”. 36. On 16 June 2003 the Regional Deputy Prosecutor’s Office quashed the decision of 23 September 2002.", "The regional deputy prosecutor noted that that the policemen who had entered the applicant’s premises on 26 December 1998 had conducted a search without any authorisation. 37. On 23 July 2003 the investigator with the Prokopievsk Town Department of the Interior discontinued the investigation. He noted that the policemen had acted in strict compliance with the law and had not beaten the applicant. The applicant appealed to the court.", "38. On 22 December 2005 the Rudnichniy District Court of Prokopievsk quashed the decision of 23 July 2003. The court noted that between 1999 and 2003 the case had been closed and reopened ten times. The court heard several witnesses summarising their testimonies as follows: “Witness F. confirmed in court that he had been ... assigned as a driver to accompany policeman R. to Yegultus on two occasions on 23 and 26 December 1998 ... . He recalled that on 26 December 1998 a woman was placed in his car.", "She was beaten up and asked for the handcuffs to be removed. This woman did not try to escape. She did not fall down and she did not hit herself against his car prior to having been placed inside. Witness R. submitted in court that on 26 December 1998 several other policemen and himself had carried out an inquiry in Yegultys ... . He had normal working relationship with driver F. They had carried out an inspection in the [applicant’s] house.", "Having observed [the applicant’s] behaviour, they had understood that something “had been wrong” and started working with her. He had said that they had been authorised to carry out a search. However, they had not invited attesting witnesses. When they had taken [the applicant] out of the house, she had thrown herself at them. Then she had fallen down hitting herself against the car.", "He had put her into the car in order to keep her warm because it had been very cold outside. R. could not explain ... why [the applicant] had been handcuffed and put into the police car and why they had not taken her to the police station in order to comply with investigator O.’s order to identify the alleged perpetrators of the car theft. ... Witness Bez. confirmed in court that on 26 December 1998 he had been repairing a car in the [applicant’s] garage.", "His niece had come and told him that [some men] had been beating up her mother. He had seen several cars in the courtyard near the house and a group of men who had been crushing things in the house. He had asked them to show their ID. They had refused. Then he had asked why his sister had been beaten up and handcuffed.", "They had started “putting pressure” on him and said that they could take his sister to a driveway and make her drink a litre of vodka. When he had called the neighbours for help, the policemen had left.” As regards investigator O.’s request that the information concerning the stolen car be followed up, the court noted that the relevant request did not state that the stolen car might be in the possession of the applicant’s husband. Lastly, the court ordered the investigating authorities to rectify the failures in the investigation. The prosecutor appealed. 39.", "On 14 March 2006 the Regional Court upheld the decision of 22 December 2005 on appeal. 40. On 17 May 2006 the Prokopievsk Town Prosecutor’s office discontinued the proceedings. The decision was based on the statements by the applicant, her relatives and neighbours, policemen and the medical reports obtained in 1998-2001. 41.", "On 14 November 2006 the District Court quashed the decision of 17 May 2006. The court accepted the applicant’s argument that the prosecutor’s office had not complied with the instructions issued by its superiors on further investigation. In particular, the court noted that the investigators had failed to question one of the drivers of the police cars, that they had not assessed the severity of the applicant’s injuries and had not determined whether the use of force by the policemen against the applicant had been lawful. On 6 March 2007 the Regional Court upheld the decision of 14 November 2006 on appeal. 42.", "On 7 May 2007 the Prokopievsk Town Prosecutor’s Office discontinued the investigation. 43. On 19 February 2008 the District Court quashed the decision of 7 May 2007, noting that the investigation had been incomplete. On 8 April 2008 the Regional Court upheld the decision of 19 February 2008 on appeal. 44.", "On 16 June 2008 the investigator at the Prokopievsk Department of the Interior discontinued the investigation. On 8 July 2008 the Kemerovo Regional Prosecutor’s Office quashed the decision of 16 June 2008. 45. On 10 October 2008 the Kemerovo Regional Prosecutor’s Office discontinued the investigation. 46.", "According to the Government, the General Prosecutor’s Office of the Russian Federation reviewed the investigation file and found the decision of 10 October 2008 unlawful, noting that the investigating authorities had failed to comply fully with the court’s decision of 19 February 2008. In particular, the investigating authorities had not reconciled the contradictory findings of the forensic reports in order to assess the veracity of the statements made by the applicant, her daughter and the policemen. The Government did not submit a copy of the decision in question. 47. On 29 April 2010 the case file was returned to the regional prosecutor’s office for further investigation.", "The proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 48. The applicant complained under Articles 3 and 13 of the Convention that she had been subjected to ill-treatment by the police, and that the ensuing investigation had been ineffective. The Court considers that the complaints fall to be examined under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 49.", "The Government contested that argument. They considered that, in view of the ongoing investigation into the matter, it was not yet possible to establish the veracity of the applicant’s allegations of police brutality. 50. The applicant maintained her complaint. She asserted that her allegations of police brutality had been supported by numerous witnesses’ statements and forensic evidence, and stated that the authorities were obliged to carry out an effective investigation.", "In view of the length of the investigation in her case, more than ten years, the investigation could not be considered effective. Furthermore, the perpetrators could not be prosecuted, because of the expiry of the statute of limitation. A. Admissibility 51. In so far as the Government may be understood to suggest that the applicant’s complaint is premature in view of the pending investigation, the Court considers that this question is closely linked to that of whether the investigation of the applicant’s allegations of ill-treatment was effective. However, this issue relates to the merits of the applicant’s complaint under Article 3 of the Convention.", "The Court therefore decides to join it to the merits. 52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Effectiveness of the investigation (a) General principles 53. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102-103, Reports of Judgments and Decisions 1998-VIII). 54.", "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 Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III). 55. An investigation of 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 for their decisions (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq. ; and Gül v. Turkey, no.", "22676/93, § 89, 14 December 2000). 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. 56. Furthermore, the investigation must be expeditious. In cases under Articles 2 and 3 of the Convention, where the effectiveness of the official investigation is at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita v. Italy [GC], no.", "26772/95, § 133 et seq., ECHR 2000-IV). Consideration was given to the starting of investigations, delays in taking statements (see Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, Reports 1998-IV, § 67), and the length of time taken to complete the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). (b) Application of the general principles to the present case 57.", "Turning to the facts of the present case, the Court is satisfied that the applicant has raised an arguable claim of ill-treatment by the police and that the authorities were under an obligation to conduct an effective investigation in response to her complaint. The authorities were informed of the applicant’s injuries by the hospital where she underwent treatment on the same day as she stated she had sustained them, that is on 26 December 1998 (see paragraph 18 above). Then, four days later, the applicant herself lodged a relevant complaint. The medical examination conducted by the hospital seemed to corroborate the applicant’s allegations of ill-treatment. 58.", "The Court further observes that the authorities opened and conducted an investigation of the applicant’s allegations of ill-treatment. It is not convinced, however, that the inquiry has been sufficiently thorough and expeditious to meet the requirements of Article 3. 59. The issues to be addressed by the authorities were of a certain complexity and required time on the part of the authorities to look into the veracity of the applicant’s accusations. They questioned the alleged perpetrators and numerous witnesses, commissioned and studied the results of forensic medical examinations, and were under an obligation to reconcile the evidence collected.", "The Court is not persuaded, however, that the complexity of the case alone can account for the fact that the investigation has lasted for over thirteen years and has not been completed to date. 60. In this connection the Court notes that, following the opening of the criminal case, the prosecuting authorities discontinued the investigation on fourteen occasions. Each time, the applicant appealed and the supervising prosecutor or the court quashed the relevant decision and reopened the investigation, noting the investigators’ failure to fully determine the circumstances of the case. The Court considers that such remittals of the case for re-examination disclose a serious deficiency of the criminal investigation which irreparably protracted the proceedings, denying the applicant an opportunity to have her allegations of ill-treatment investigated effectively.", "61. Finally, in so far as the Government imply that the complaint under Article 3 is premature, the Court recognises that the investigation is still pending but, in view of its length so far and the seriousness of the issues at stake, the Court does not consider that the applicant should wait for completion of the investigation before making her application to the Court, as the conclusion of those proceedings would not remedy the overall delay in any way (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, ECHR 2007-IX). 62. In the light of the foregoing, the Court dismisses the Government’s objection, and finds that the authorities failed to carry out an effective criminal investigation of the applicant’s allegations of ill-treatment.", "Accordingly, there has been a violation of Article 3 under its procedural limb. 2. Alleged ill-treatment (a) General principles 63. The Court has stated on many occasions that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the victim’s conduct (see, among many other authorities, Labita v. Italy, cited above, § 119, and Selmouni v. France [GC], no.", "25803/94, § 95, ECHR 1999-V). 64. The Court accepts that in defusing situations, maintaining order, preventing offences, catching alleged criminals and protecting themselves and other individuals, police officers are entitled to use appropriate means, including force. Nevertheless, such force may be used only if indispensable, and must not be excessive. Recourse to physical force which has not been made strictly necessary by the individual’s own conduct diminishes human dignity and is in principle an infringement of the rights set forth in Article 3 of the Convention (see Kuzmenko v. Russia, no.", "18541/04, § 41, 21 December 2010). 65. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).", "However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among others, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004-VII; and Akdivar and Others v. Turkey, 16 September 1996, § 168, Reports of Judgments and Decisions 1996‑IV). (b) Application of the general principles to the present case 66.", "Turning to the circumstances of the present case, the Court notes that the medical evidence submitted by the applicant and not challenged by the Government conclusively demonstrates that on 26 December 1998, that is the day of the altercation between the applicant and the policemen, she sustained a number of injuries, including a rupture inside the left renal capsule, a concussion and multiple contusions. 67. The Court further notes that the applicant provided a detailed and consistent description of the ill-treatment to which she had been allegedly subjected by the policemen. She indicated its place, time and duration. Her allegations of ill-treatment were sufficiently serious for the authorities to open a criminal investigation.", "The Court also notes that at no point in the proceedings before the Court did the Government directly challenge or refute the applicant’s allegations. They merely stated that, in view of the ongoing investigation, it was impossible to determine whether she had been subjected to a treatment in contravention of Article 3 of the Convention. 68. In such circumstances, and having regard to the Court’s earlier finding that the domestic inquiry into the applicant’s allegations has fallen short of the standards set forth in Article 3 of the Convention, the Court considers that the Government failed to rebut the presumption of their responsibility for the injuries inflicted on the applicant while in the hands of the agents of the State. Accordingly, the Court finds it established to the standard of proof required in Convention proceedings that the applicant sustained the injuries as a result of her altercation with the police officers.", "The burden therefore rests on the Government to provide a satisfactory and convincing arguments that the use of force was not excessive (compare, mutatis mutandis, Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000‑XII). 69. The Court observes that the applicant was not a suspect in any crime or subject to an arrest in the course of a random operation which might have given rise to unexpected developments to which the police might have been called upon to react without prior preparation. The documents before the Court indicate that the police planned the search of the applicant’s household in advance and that they had sufficient time to evaluate the possible risks and to take all necessary measures to carry out the operation.", "There were six or seven policemen involved and they were capable of putting an end to the applicant’s allegedly unruly behaviour, if any. 70. Furthermore, the Court considers that, even assuming that the applicant had not been calm and had refused to comply with the police officers’ orders, there is no evidence presented in the domestic proceedings or before the Court that the applicant had been particularly dangerous or had been in possession of a weapon. No evidence of any injury to the police officers was adduced. Even conceding that the police officers might have needed to resort to physical force to prevent the applicant’s interference with the search they were to conduct, it is obvious that the beatings the police officers subjected the applicant to were not conducive to the desired result, that is, facilitating the search.", "In the Court’s view they were merely a form of reprisal or corporal punishment (compare Dzwonkowski v. Poland, no. 46702/99, § 55, 12 April 2007, and Dedovskiy and Others v. Russia, no. 7178/03, § 83, 15 May 2008). Accordingly, the Court concludes that the force used by the police against the applicant was excessive and unjustified. 71.", "The Court further reiterates that the ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Assenov and Others, cited above, § 94). The Court considers that the number and location of the injuries the applicant had sustained indicate that the beatings the policemen had subjected her to were sufficiently serious, of a nature amounting to inhuman treatment prohibited by Article 3. 72. It follows that there has been a violation of Article 3 of the Convention under its substantive limb. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 74. The applicant claimed compensation for non-pecuniary damage in the amount the Court considered “reasonable and appropriate to the level of pain and suffering” that she had endured. 75.", "The Government considered that, given that the applicant’s rights under the Convention had not been infringed, her claim of damages should be rejected. Alternatively, they proposed that finding a violation would constitute sufficient just satisfaction. 76. The Court notes that it has found a combination of grievous violations in the present case. The applicant has been a victim of police brutality.", "The ensuing investigation in her allegations has been ineffective. In such circumstances, the Court considers that the applicant’s suffering and anguish cannot be compensated by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 77.", "The applicant claimed (1) 600 pounds sterling (GBP) for the work carried out by Mr Bowring, who reviewed the case documents and provided comments on the draft reply to the Government’s observations for four hours; (2) GBP 108 for the work carried out by the EHRAC administrator who did some translation, arranged for the translation of the documents by external translators and compiled the list of documents; (3) GBP 75 for the postal, telephone/fax and photocopying expenses incurred by the EHRAC office; and (4) GBP 798.1 for translation services. She submitted invoices in respect of the work performed by Mr Bowring and the translator. No other copies of relevant receipts were provided. 78. The Government did not comment.", "79. 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 720 euros (EUR) in respect of the work performed by Mr Bowring and EUR 960 to cover translation costs, that is EUR 1,680 in total. C. Default interest 80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 3 of the Convention in that the authorities failed to carry out an effective investigation into the applicant’s allegations of ill-treatment; 4. Holds that there has been a violation of Article 3 of the Convention in that the applicant was subjected to inhuman treatment by the police; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 15,000 (fifteen thousand euros) plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement; (ii) EUR 1,680 (one thousand six hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of translation costs, to be paid into the EHRAC 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF SAKHNOVSKIY v. RUSSIA (Application no. 21272/03) JUDGMENT STRASBOURG 2 November 2010 This judgment is final but may be subject to editorial revision. In the case of Sakhnovskiy v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Nicolas Bratza,Peer Lorenzen,Françoise Tulkens,Josep Casadevall,Ireneu Cabral Barreto,Boštjan M. Zupančič,Anatoly Kovler,David Thór Björgvinsson,Danutė Jočienė,Dragoljub Popović,Mark Villiger,Isabelle Berro-Lefèvre,Päivi Hirvelä,Mirjana Lazarova Trajkovska,Ledi Bianku,Ann Power, judges,and Michael O'Boyle, Deputy Registrar, Having deliberated in private on 20 January 2010 and on 22 September 2010, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 21272/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Veniaminovich Sakhnovskiy (“the applicant”), on 18 April 2003.", "2. In the proceedings before the Chamber the applicant was granted leave for self-representation. In the proceedings before the Grand Chamber the applicant was granted legal aid. He was represented by Ms K. Moskalenko and Ms O. Preobrazhenskaya, lawyers practising in Moscow, and Ms N. Lisman, lawyer practising in Boston (the United States). The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.", "3. The applicant alleged, in particular, that the criminal proceedings against him had been conducted in violation of Article 6 §§ 1 and 3 (c) of the Convention, claiming that in the appeal proceedings he had not been given free legal assistance and that, moreover, he had been unable to defend himself effectively because he had communicated with the court of appeal by video link. 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 (former Article 27 § 1 of the Convention, now Article 26) was constituted as provided in Rule 26 § 1.", "5. On 15 January 2009 a Chamber of that Section composed of the following judges: Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, assisted by Søren Nielsen, Section Registrar, examined the admissibility and merits of the case (former Article 29 § 3 of the Convention, now Article 29 § 1). The Chamber joined to the merits the Government's objection concerning the applicant's victim status, declared the complaints under Article 6 of the Convention admissible, and held unanimously that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that the applicant had not received effective legal assistance during the appeal proceedings in his criminal case. It made an award in respect of non-pecuniary damage. The remainder of the application was declared inadmissible.", "Judges Rozakis, Spielmann and Malinverni expressed a joint concurring opinion, which was annexed to the judgment. 6. On 4 May 2009 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 the request on 14 September 2009. 7.", "The composition of the Grand Chamber was determined according to the provisions of former Article 27 §§ 2 and 3 (now Article 26 §§ 4 and 5) of the Convention and Rule 24 of the Rules of Court. At the final deliberations, Ann Power, substitute judge, replaced Renate Jaeger, who was unable to take part in the further consideration of the case (Rule 24 § 3). 8. The applicant and the Government each filed written observations on the merits. 9.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 20 January 2010 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrN. Mikhaylov, Deputy Head of the Office of theRepresentative of the Russian Federation,Agent,MsT. Korolkova,MsY. Tsimbalova, Advisers; (b) for the applicantMsK.", "Moskalenko, Ms N. Lisman, Counsel,MsO. Preobrazhenskaya,Adviser. The Court heard addresses by Ms Moskalenko, Ms Lisman and Mr Mikhaylov. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10.", "The applicant was born in 1979. He is currently serving his sentence in the Novosibirsk Region. A. First set of the proceedings 11. On 30 April 2001 the applicant was arrested on suspicion of having murdered his father and uncle.", "The applicant made a written request to be provided with a legal-aid lawyer. On the same day an expert examination of fingerprints and a forensic examination were ordered and on 3 May 2001 the applicant was remanded in custody. 12. On 4 May 2001 legal-aid counsel, Ms P., was appointed to assist the applicant, and he was charged with aggravated murder on 10 May 2001. 13.", "From May to September 2001 a number of expert examinations were carried out. Subsequently the applicant received copies of orders for such examinations. He signed each of them confirming their receipt and indicating that he had no comments or requests. 14. On 30 September 2001 the detention order was lifted and replaced with an undertaking not to leave his place of residence.", "15. In October 2001 the applicant's former cellmate in the detention facility, Mr Zh., testified that the applicant had told him in detail how he had murdered his father and another man. 16. On an unknown date the applicant's friend, Mr R., gave a witness statement alleging that the applicant had asked him to murder his father and that when R. refused the applicant seemingly intended to do it himself. 17.", "On 5 November 2001 the applicant was again remanded in custody. 18. On 20 December 2001 the Novosibirskiy Regional Court examined the criminal charges against the applicant. The applicant pleaded not guilty. The court examined seventeen witnesses including Zh.", "and R., and found the applicant guilty of the murder of two persons, sentencing him to eighteen years' imprisonment. In its judgment the court referred to witness statements, forensic reports and extensive material evidence. 19. The applicant and his lawyer appealed, alleging that Zh. and R. had given their statements under pressure from the police and claiming that the investigation had been vitiated by numerous violations of the applicant's defence rights.", "They also complained that they had received the expert examination orders belatedly. 20. On 12 May and 29 July 2002 the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because Ms P. was unable to attend the hearing, as she was already engaged in another trial. 21. On an unknown date the applicant was informed that his participation in the appeal hearing would be ensured by video link.", "On 26 and 30 July 2002 he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing. 22. On 16 October 2002 the Supreme Court of the Russian Federation ordered the Moscow IZ-77/3 detention centre to ensure the applicant's participation in the appeal hearing, which was to take place on 31 October 2002, by video link. 23. On 31 October 2002 the Supreme Court of the Russian Federation examined the applicant's appeal.", "The applicant participated in the proceedings by video link. No defence counsel attended the hearing. The court dismissed the applicant's appeal, having found no proof that the testimony of Zh. and R. was false. As regards the alleged breach of his defence rights, the court found this to be unsubstantiated.", "24. In the following months the applicant filed several supervisory review complaints. In letters of 24 April and 19 November 2003 the Novosibirsk Prosecutor's Office and the General Prosecutor's Office informed the applicant that they refused to entertain his complaints. The Novosibirsk Prosecutor's Office noted, in particular, that the applicant's right to take part in the appeal proceedings had been fully respected. On 2 July 2003 Judge R. of the Supreme Court refused to open supervisory review proceedings on the applicant's complaint.", "That decision was confirmed by the President of the Supreme Court on 5 December 2003. On 4 February 2004 another supervisory-review complaint by the applicant was returned without examination, with reference to the earlier decisions on that matter. B. Supervisory review of the case and second set of the proceedings 25. On 26 March 2007 the Court decided to communicate the application to the Russian Government.", "On 4 July 2007 the Presidium of the Supreme Court granted an application for supervisory review by the Deputy Prosecutor General and quashed the Supreme Court's appeal decision of 31 October 2002. The Presidium found that the applicant's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court. 26. The applicant requested to take part in the appeal hearing in person. On 10 August 2007 the Supreme Court, sitting as a bench of three judges, granted him leave to attend in person and ordered the applicant's temporary transfer from the prison in the Novosibirsk Region to a detention facility in Novosibirsk (over 3,000 km from Moscow), apparently to allow him to use the video link.", "27. On 20 August 2007 the applicant made a new statement of appeal. He requested the Supreme Court to examine his appeal on the basis of this new statement alone and also requested leave to attend the appeal hearing in person rather than by video link. 28. On 29 November 2007 the Supreme Court, sitting in Moscow, examined the case.", "First, it considered the applicant's requests of 20 August 2007. In a separate decision on procedure it found that there were no grounds to accept the applicant's new statement of appeal and decided to examine the case on the basis of the statement by the applicant's former counsel, Ms P., from 2002. It also rejected the applicant's request to attend in person, finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions, and that this form of participation would be no less effective than if he was personally present in the courtroom. The Supreme Court then introduced the applicant to Ms A., his new legal-aid counsel who was present in the Supreme Court's courtroom and then allowed them fifteen minutes of confidential communication by video link before the start of the hearing. All persons, both in the courtroom and in the detention facility, left the rooms.", "29. The applicant rejected the assistance of Ms A. on the grounds that he needed to meet his counsel in person. The Supreme Court, having noted that the applicant did not rely on any divergence with Ms A. in his defence, did not request her replacement by another legal-aid lawyer, did not accept the Supreme Court's proposal to retain private counsel of his choosing and, taking into account the quashing of the previous appeal decision on the grounds of a lack of legal assistance, rejected the applicant's objection to the counsel's assistance. Accordingly, Ms A. represented the applicant in the appeal hearing. 30.", "On the same day the Supreme Court examined the merits of the case. It upheld the judgment of the Novosibirsk Regional Court of 20 December 2001, making one correction to the text and excluding one piece of evidence. The substantive findings and the applicant's sentence remained unchanged. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The Code of Criminal Procedure 31. Article 51 of the Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel. Article 52 of the Code provides that the accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment.", "32. Article 373 of the Code provides that the appellate court (суд кассационной инстанции) examines appeals (кассационные жалобы) with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, it may directly examine evidence, including additional material submitted by parties. 33. Article 402 of the Code (“Appeal against judgments, decisions and rulings which have come into force”) stipulates as follows: “1.", "Defendants who have been convicted or acquitted, ... and the public prosecutor shall be entitled to request review of court judgments ... which have come into force in accordance with the procedure set out in the present Chapter. 2. The public prosecutor's request shall be termed a supervisory-review application (представление). Other parties' requests shall be termed supervisory-review complaints (жалоба).” 34. Article 406 of the Code (“Examination of supervisory-review complaints or applications”) stipulates as follows: “1.", "A supervisory-review complaint or application shall be examined by a supervisory-review court within 30 days of being lodged. 2. The judge who examines the supervisory-review complaint or application may, where necessary, obtain ... any criminal case file ... 3. After examining the supervisory-review complaint or application, the judge shall decide as follows: either (i) to dismiss the supervisory-review complaint or application; or, (ii) to institute supervisory-review proceedings and to pass the supervisory-review complaint or application for consideration to the supervisory-review court ... 4. The President of the [competent] court may decline to accept the judge's decision to dismiss the supervisory-review complaint or application.", "In this case he shall set aside this decision and give a decision according to paragraph 3 (ii) [above].” 35. Article 412 of the Code (“Lodging of new supervisory-review complaints or applications”) stipulates as follows: “1. It is forbidden to lodge new supervisory-review complaints or applications with a court which has already dismissed such complaints or applications. 2. Where an earlier judgment, decision or ruling has been quashed on appeal or under the supervisory-review procedure, it is possible to lodge a supervisory-review complaint or application against it in accordance with the rules of the present Chapter, irrespective of the reasons why the original judgment, decision or ruling was quashed.” Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows: “1.", "Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; ....” B. Case-law of the Constitutional Court and of the Supreme Court of Russia 36. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.” 37.", "That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings. 38. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible.", "In its ruling (определение) the Constitutional Court held inter alia that Article 51 of the Code of Criminal Procedure, which defined situations where participation of a defence lawyer in the criminal proceedings was mandatory, also applied to the proceedings before the court of appeal. 39. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the later document the Supreme Court emphasised that the accused could waive his right to a lawyer only in writing, and that the court was not bound by that waiver.", "THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS A. Concerning the alleged non-exhaustion of domestic remedies 40. In their request for referral the Government put forward two preliminary objections. The Government maintained that the applicant had failed to exhaust domestic remedies as regards his complaint about the second set of the appeal proceedings.", "In particular, he had not lodged an application for supervisory review against the judgment of 29 November 2007. In support of that position the Government referred to the decisions of the Constitutional Court of Russia and of the Presidium of the Supreme Court of Russia in other cases where legal assistance had been denied to defendants at the appeal stage (see paragraphs 38 - 39 above). 41. The applicant argued that the pursuit of that remedy (supervisory review) was a virtually interminable process and for that reason this Court had not considered it to be an “effective remedy”. Further, he indicated that his own efforts to obtain supervisory review of the first judgment (that of 2002) had been futile until such time as the Prosecutor General's office had felt compelled to intervene following notification that the applicant had turned to this Court for redress.", "42. The Court confirms that it has consistently refused to recognise a supervisory review appeal as an “effective remedy” for the purposes of Article 35 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts); Shulepov v. Russia, no. 15435/03, § 23, 26 June 2008; Adzhigovich v. Russia, no. 23202/05, § 21, 8 October 2009; and Shilbergs v. Russia, no.", "20075/03, § 118, 17 December 2009). That approach is based to a large extent on the procedural particularity of the supervisory review in Russian criminal procedure, which does not establish any time-limits for bringing such an action. In Berdzenishvili the Court noted that, under the Code of Criminal Procedure supervisory-review appeals could be lodged at any time after a judgment became enforceable, even years later. The Court concluded that “if the supervisory-review procedure under [that Code] were considered a remedy to be exhausted, the uncertainty thereby created would render nugatory the six-month rule”. 43.", "The domestic case-law referred to by the Government cannot support their assertion that a supervisory-review appeal would be an effective remedy. Even if it has worked in some other cases, it still has procedural features which have led the Court to characterise it as an extraordinary remedy and not part of the normal exhaustion process. None of the decisions referred to by the Government could have led to the automatic reopening of the applicant's case; access to the Presidium of the Supreme Court would still depend on the discretion of judges or prosecution officials and would remain, as the applicant put it, a “virtually interminable process” owing to the absence of time-limits. 44. Finally, the Court notes that the problem addressed by the Constitutional Court and the Presidium of the Supreme Court was not the same as the matter at issue in the present case.", "The decisions cited by the Government concerned the refusal to appoint a legal-aid lawyer in appeal proceedings. The Court points out that the Government's plea of non-exhaustion concerned the second set of the appeal proceedings, in which the applicant had been given a lawyer to represent him. The central question raised before this Court in respect of the hearing of 29 November 2007 was not the absence of the lawyer, but rather the absence of effective legal assistance by her. None of the cases cited by the Government concerned that issue and could not therefore be relied upon by the applicant in his supervisory-review complaints. 45.", "In sum, the Court concludes that a supervisory-review appeal against the judgment of 29 November 2007 was not an effective remedy for the purposes of exhaustion under Article 35 § 1 of the Convention. The Government's objection should therefore be dismissed. B. Concerning the applicant's victim status 46. The Government claimed, as they had already done in the proceedings before the Chamber, that owing to the reopening of the applicant's case in 2007 the applicant had lost his victim status in respect of his original complaint.", "Accordingly, any subsequent development should not fall within the scope of the present proceedings and constituted a new case. 47. The Grand Chamber notes that this objection was examined by the Chamber in its judgment of 15 January 2009. The Chamber considered that it was closely linked to the merits of the applicant's complaints under Article 6 of the Convention. The Grand Chamber sees no reason to depart from this approach.", "Indeed, the assessment of the victim status largely depends on the legal characterisation of the second set of the proceedings as a separate case or, alternatively, as part of the same criminal case. This appears to be the principal subject of controversy. The Court thus prefers to join the Government's objection concerning victim status to the merits of the case and examine them together. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 48.", "The applicant complained that the criminal proceedings against him had been unfair. In particular, he complained that at the hearing before the appellate court in 2002 he had not been provided with legal assistance and that his only contact with the courtroom was by video link. The applicant further complained that in the new appeal proceedings in 2007, following the quashing of the earlier judgment, his rights had not been restored. In particular, he had not been brought to the courtroom in person, despite his requests, and he had been deprived of effective communication with court-appointed legal counsel. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ...” A. The Chamber judgment 49. The core findings of the Chamber in its judgment of 15 January 2009 can be summarised as follows. It had been acknowledged by the Government and affirmed by the Chamber that the first set of proceedings that ended on 31 October 2002 fell short of the guarantees relating to legal assistance (§ 47 of the judgment).", "Further, as regards the appeal hearing of 29 November 2007, the Chamber found that “the lack of personal contact with the applicant at the hearing and the absence of any discussion with him in advance of the hearing, combined with the fact that she had to plead the case on the basis of the points of appeal lodged five years earlier by another lawyer, reduced Ms A. 's appearance at the appeal hearing to a mere formality” (§ 50). The applicant's dissatisfaction with the manner in which his legal assistance had been organised was made sufficiently clear to the Supreme Court, and was reasonable and justified in the circumstances. The Chamber found that the applicant could still claim to be a victim within the meaning of Article 34 of the Convention, since “the Supreme Court [had] failed to ensure the applicant's effective legal representation in the appeal hearing that took place on 29 November 2007, as it had in the earlier proceedings” (§ 52). In the operative part of the judgment the Chamber held that “there [had] been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that the applicant [had] not receive[d] effective legal assistance during the appeal proceedings”.", "B. The parties' submissions 50. The parties observations submitted in writing and presented orally during the hearing of 20 January 2010 can be summarised as follows: 1. The Government (a) Loss of victim status 51. The Government's central argument was that the quashing of the judgment and the very fact of the retrial were per se “sufficient redress” for the violation complained of in the original application.", "In support of this they referred to a number of Russian cases: Ponushkov v. Russia, no. 30209/04, 6 November 2008; Ryabov v. Russia, no. 3896/04, 31 January 2008; Davidchuk v. Russia (dec.), no. 37041/03, 1 April 2008; Mikhail Brinzevich v. Russia (dec.), no. 6822/04, 11 December 2007; Babunidze v. Russia (dec.), no.", "3040/03, 15 May 2007; Fedosov v. Russia (dec.), no. 42237/02, 25 January 2007; Nikishina v. Russia (dec.), no. 45665/99, 12 September 2000; and Wong v. Luxemburg (dec.), no. 38871/02, 30 August 2005. 52.", "As to the second set of the proceedings (the hearing of 29 November 2007), the Government claimed that even if the circumstances complained of amounted to a violation of Article 6, these new events bore no relation to the present case and should have been presented by the applicant as a new application and communicated to the Government as a separate case. The Government claimed that they had not had the opportunity to comment on those new submissions. (b) Waiver of legal assistance 53. The Government maintained that the applicant's rights under Article 6 § 3 (c) had not been breached in the appeal hearing of 29 November 2007. The State could not be held responsible for every shortcoming on the part of counsel appointed for legal-aid purposes.", "The Government suggested that the applicant should bear the consequences of the conduct of Ms A. (the court-appointed lawyer) in the proceedings, namely her failure to ask in writing for a replacement lawyer or for an adjournment. The Government further claimed that the applicant had not requested a personal meeting with his lawyer in his additional statement of appeal or the additional motions he lodged with the Supreme Court before the start of the hearing. He had not asked the Supreme Court to replace the counsel, neither had he expressed the wish to be represented by counsel of his own choosing. The Government appeared to claim that in order to have the benefit of the legal-aid scheme he should have asked for a replacement lawyer whom he trusted.", "By failing to do so the applicant had waived his right to legal assistance. (c) Effective legal assistance 54. The Government claimed that Ms A. herself had not considered that a personal meeting between her and the applicant had been necessary. She had taken her appointment quite seriously: she had studied the case file in advance, and had consulted with the applicant in private before the start of the hearing. She had not asked for a face-to-face meeting with the applicant; however, the authorities could not tell lawyers how to defend their clients, and whether or not a personal meeting was necessary.", "55. The Government further maintained that the applicant's claim was far-fetched. Ms A. had acquired sufficient knowledge of the case, and the applicant had not disagreed with her position on legal matters. To the Supreme Court he had declared that he had wished to know her “as a person”. However, “personal relations were not of great importance to effective and adequate legal aid”.", "Ms A. had all the necessary legal skills to defend the applicant. (d) Personal attendance 56. The last arguments raised by the Government concerned the hearing of 29 November 2007 as such. The Government acknowledged the importance of the right of the accused to participate effectively in his defence. However, they indicated that the Convention and the Court's case‑law did not indicate the manner in which that right should be exercised.", "Participation in the proceedings through a video link was an acceptable form of participation (see Marcello Viola v. Italy, no. 45106/04, ECHR 2006‑XI (extracts), and Golubev v. Russia (dec.), no. 26260/02, 9 November 2006). The transportation of a detainee from the Novosibirsk region to Moscow is a long and costly procedure; in addition, it would have caused the applicant a lot of inconvenience. The Government further claimed that the applicant had not complained about the quality of the video communication, and that it had not limited his ability to participate in the proceedings in any other way.", "2. The applicant (a) Loss of victim status 57. According to the applicant, the Government's contention that the Court should declare the supervisory-review decision a complete and adequate remedy per se, without any consideration of subsequent rehearing, was in direct contradiction with the principles enunciated in the Court's case-law. An upper court decision ordering a rehearing represented, at most, a promise of a correction, but the result – actual correction – could be obtained only in the subsequent proceedings. 58.", "In the applicant's view, the Government's reading of the Court's case-law was incorrect. None of the cases cited by the Government supported their proposition that an order for rehearing was in itself sufficient redress. On the contrary, the judgments or decisions in five of the above cases (Ponushkov, Fedosov, Babunidze, Gavrilova and Wong) were at odds with the Government's position, while the remaining three (Ryabov, Davidchuk and Nikishina) were so distinguishable from the present case on their facts as to be altogether inapposite. 59. The Chamber was correct in treating the second set of the proceedings as part of the domestic redress for the acknowledged breach of his right to a fair trial in the initial proceedings.", "This was compatible with the Court's previous case-law, in particular in the case of Scordino, where the Grand Chamber held that “[t]he issue as to whether a person [might] still claim to be the victim of an alleged violation of the Convention essentially entail[ed] on the part of the Court an ex post facto examination of his or her situation” including, in particular, an examination of the “effectiveness of the remedy” afforded by the national authorities (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 180-182, ECHR 2006-V). The Court's ex post facto examination of the situation had to focus on the practical results of the remedy's actual application. Thus, for example, where the claimed remedy for the excessive length of judicial proceedings was a subsequent action for compensation, the Court had to determine not only the availability of such an action under the domestic law, but also the timeliness of the adjudication of that action because “excessive delays in an action for compensation [would] render the remedy inadequate” (see Cocchiarella v. Italy [GC], no.", "64886/01, § 86, ECHR 2006‑V). 60. According to the applicant, the Government's position in the case – that the applicant's complaints about the rehearing could not be considered within the context of the pending case but only on a new application – was essentially a way of evading this Court's review of the initial and repeated violations of the applicant's rights. Were the applicant to lodge a new application concerning the rehearing, the Government would insist on a new round of steps to exhaust domestic remedies and a new “opportunity to examine the applicant's allegations and remedy the violation of the rights guaranteed by the Convention”. Such an opportunity could then be used to obtain another decision identical to the decision of the Presidium of 4 July 2007, which the Government would again present as per se ending the applicant's victim status, and this cycle could continue ad infinitum.", "(b) Waiver of legal assistance 61. The applicant denied that he had waived any of his rights under Article 6. There was no evidence that the applicant had expressly decided to forego any of the rights at issue or had engaged in any conduct from which such a waiver could be fairly implied. On the contrary, he had made express written requests to be present during the appeal proceedings and to have a meaningful opportunity to meet his lawyer in a private setting, and had informed the Supreme Court of disruptions in the video link. The applicant concluded that the responsibility for the fact that his rights had not been observed in connection with the rehearing lay solely with the authorities.", "(c) Effective legal assistance 62. The applicant claimed that, notwithstanding the fact that the Supreme Court had appointed a defence lawyer to represent him at the rehearing, it had done so in a manner that had made it impossible for the lawyer to provide effective legal assistance. The applicant had formed the impression that the participation of Ms A. in the proceedings had been especially ineffective since she had been only partially familiar with the case. 63. The fact that the applicant's legal-aid counsel was appointed and introduced to him at the last minute, combined with the fact that they had been given only fifteen minutes to communicate by video link, had precluded any possibility of her serving as his defence lawyer other than nominally.", "That was why the Supreme Court's suggestion that the applicant should pick a different lawyer, in response to his objection, had been quite beside the point: he had not had any objection to Ms A. personally, even though he had not known her previously, but had pointed to the fact that they had been deprived of any opportunity to form even a semblance of a meaningful lawyer-client working relationship. 64. Two further facts had supported the Chamber's conclusion, in addition to those summarised in its judgment. First, given the setting in which he had had to converse with his lawyer, the applicant had not felt he could have a frank and open discussion with her. A comparison by the Court of that arrangement with such alternatives as a telephone line secured against any attempt at interception (see Marcello Viola, cited above, § 41) had revealed that the applicant's perception had been quite understandable.", "Second, since the applicant had not had any contact with his lawyer prior to the rehearing, he had been left to his own devices with respect to pre-hearing motions, all of which the Supreme Court had ultimately denied. Given that the reason the case had been sent back to the Supreme Court for a rehearing had been its violation of the applicant's right to legal representation at the initial hearing, and in view of the seriousness of the charges to be considered at the rehearing (double murder), this had surely been a case where the Supreme Court should have used its best endeavours to ensure that the applicant had effective representation. (d) Personal attendance 65. The applicant alleged that he had not been afforded effective legal representation and an opportunity to confer privately with counsel, his ability to actively participate in and follow the proceedings in the courtroom had been impaired by technical disruptions in the video transmission. He had sought to disprove before the appeal court the evidence of certain witnesses at his original trial, and had thereby raised the issue of his own credibility, so his personal appearance was particularly crucial in such circumstances.", "Finally, he had not had an opportunity to present his case under the same conditions as the prosecution: the prosecutor had been present in the courtroom, whereas the applicant had participated via a video link. C. The Court's analysis 1. Whether the applicant lost victim status after the reopening of proceedings (a) General principles of the Court's case-law: the notion of “redress” 66. The Court has developed two lines of case-law regarding the victim status of an applicant under Article 34 of the Convention. The first line concerns the nature and extent of the conditions for claiming to be a victim of a violation of the Convention when lodging an application with the Court, namely whether a person can be regarded as being directly affected by the impugned measure (see, among other authorities, Burden v. the United Kingdom [GC], no.", "13378/05, § 33, ECHR 2008‑...). The second line of cases relates to the question whether, where an alleged violation has already taken place, subsequent events can give rise to a loss of victim status. The Court would emphasise that the two lines of case-law are independent of each other (see Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.) [GC], no. 56672/00, ECHR 2004‑IV). Having and losing victim status are two different situations, although they are both based on the notion of “victim”.", "67. It is a well-established principle of the Court's case-law that an applicant may lose his victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it (see, among many other authorities, Scordino, cited above, § 180). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Arat v. Turkey, no. 10309/03, § 46, 10 November 2009). The alleged loss of the applicant's victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Freimanis and Līdums v. Latvia, nos.", "73443/01 and 74860/01, § 68, 9 February 2006). 68. It is clear that in the present case the authorities acknowledged the original violation of the applicant's rights under Article 6 of the Convention, at least as regards the lack of appropriate legal aid in the appeal proceedings of 2002. Therefore, the Court should concentrate on the question whether they complied with the obligation to “redress” it. 69.", "In Scordino (cited above) the Grand Chamber formulated the requirements for redress in respect of excessively lengthy civil proceedings. In particular, the Court held that excessive delays in an action for compensation may render the remedy inadequate (§ 195). Further, the access to a compensatory remedy should not be hindered by high court fees (§ 201). The Court also examined whether the monetary redress was sufficient in quantitative terms. 70.", "The Court notes that the above findings concerned a compensatory remedy for a breach of a very specific guarantee of Article 6 § 1 – the “reasonable time” requirement. Breach of other provisions of the Convention may require other kinds of “redress”, to which the logic of Scordino does not necessarily apply. The Court also reiterates in this connection that different types of remedy may redress the violation appropriately (see, mutatis mutandis, the Court's analysis under Article 13 in Kudła v. Poland [GC], no. 30210/96, §§ 154-55, ECHR 2000-XI). The appropriateness and sufficiency of redress depend on the nature of the violation complained of by the applicant.", "71. In the context of the criminal-limb guarantees of Article 6, full acquittal or discontinuation of the proceedings against the applicant have been regarded as appropriate redress (see, for example, Carboni v. Italy (dec.), no. 51554/99, 12 February 2004; Üstün v. Turkey, no. 37685/02, 10 May 2007, § 24; and Oleksy v. Poland (dec.), no. 1379/06, 16 June 2009).", "However, this is the case when an applicant is no longer affected and has been relieved of any effects to his disadvantage. An applicant can maintain his victim status if he has already served all or part of his sentence and no compensation has been offered or is available for the alleged violation (see, for example, Hooper v. the United Kingdom (dec.), no. 42317/98, 21 October 2003; Menesheva v. Russia (dec.), no. 59261/00, 15 January 2004; and Arat, cited above, §§ 46-47). In the case of Freimanis and Līdums, cited above, which concerned the question whether the case had been heard by a “tribunal established by law”, the Court took into account the persistence of adverse consequences for the applicants after a decision to quash a conviction and remit the case for fresh consideration (§ 68).", "The Court noted (in §§ 71-72) that the applicants did not complain about the unfairness of the new set of the proceedings, and the case was re-examined by a newly composed tribunal, which had this time been created in accordance with the law. In such circumstances the Court concluded that the defects of the previous proceedings had been remedied after the reopening. (b) The Court's case-law in Russian cases 72. There are two groups of cases concerning Russia which treat the issue of “victim status” in criminal proceedings differently. In the first group, the Court has accepted the reopening of criminal proceedings as a form of redress in itself.", "Thus, the Government referred to the case of Ponushkov, cited above, where the Court had held, in a similar situation, as follows: “70. In the instant case, the Presidium of the Supreme Court explicitly acknowledged that the applicant's right to free legal representation at the hearing before the appeal court had been infringed, quashed the appeal judgment of 29 January 2004 and ordered a new appeal hearing. 71. Therefore, having regard to the contents of the Presidium's decision of 1 March 2006, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention.” A similar line of reasoning was employed by the Court in the case of Ryabov, cited above, where it held: “51. ... Having regard to the contents of the Presidium's decision of 1 March 2006 and the appeal judgment of 19 July 2006 which indicated that a new trial should be held, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention.” The Court came to this conclusion despite the fact that the proceedings against the applicant were still pending, and there was no certainty that the defect complained of would be remedied during the retrial.", "73. The second group of cases is consonant with the findings of the Chamber in the case at hand. For example, the case of Fedosov, referred to by the Government in support of their submissions, reflects the Chamber's position in the present case. In that case the Court did take into account the second set of the proceedings: “Having regard to the content of the judgment of 28 September 2005 [by the supervisory review instance], the subsequent retrial before the Troitsk Town Court and the mitigation of the sentence, the Court finds that the national authorities have acknowledged, and then afforded redress for the alleged breach of the Convention.” That decision suggests that, besides a retrial compatible with all the requirements of Article 6 the applicant should obtain something more – a mitigation of sentence, for instance. 74.", "Another case from this group is Babunidze (cited above), referred to by both parties. In that case the applicant had complained that he had been unable to attend hearings both before and after the quashing by the Supreme Court of the judgment in a civil case in which he was a defendant. In that case the parties agreed that the Supreme Court had acknowledged the violation of the applicant's rights by the district court's failure to summon him to the hearing of 19 March 2002. However, the applicant argued that in the course of the new examination the district and regional courts had once again failed to provide him with an effective opportunity to participate in the hearings. The Court accepted that the question of redress required the examination of “whether the applicant was provided with an opportunity to participate effectively in the re-examination of his case”.", "Having considered that in the circumstances of the case the applicant had been given ample opportunity to attend the hearings in the fresh set of proceedings, the Court concluded as follows: “Therefore, having regard to the content of the Supreme Court's judgment of 14 October 2003 and the subsequent re-examination of the applicant's case during which he had been afforded an effective opportunity to attend hearings and present his arguments, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities' failure to summons the applicant to the hearing of 19 March 2002 ...” 75. The Court observes, against this background, that its case-law concerning the effects of reopening on the applicant's victim status needs to be clarified. (c) Application to the present case 76. At the outset, the Court reiterates that the European system for the protection of human rights is founded on the principle of subsidiarity. The States should be given a chance to put right past violations before the complaint is examined by the Court; however, “the principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies” (see Giuseppe Mostacciuolo v. Italy (no.", "2) [GC], no. 65102/01, § 81, 29 March 2006). Moreover, the principle of subsidiarity should not be construed so as to allow the States to evade the Court's jurisdiction. 77. Indeed, a criminal defendant cannot claim to be a victim of a violation of Article 6 § 3 before he is convicted (see X v. the United Kingdom, no.", "8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223; Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported; Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003; and Witkowski v Poland (dec.), no. 53804/00, 3 February 2003). This is also true in respect of most of the guarantees of Article 6 § 1 of the Convention (with some exceptions concerning, for instance, the requirement of reasonable length of the proceedings, access to court, etc.", "– see, for example, Polonskiy v. Russia, no. 30033/05, §§ 160 et seq., 19 March 2009; Kart v. Turkey [GC], no. 8917/05, §§ 71 et seq., 3 December 2009; see also, in the context of civil proceedings, Mihajlović v. Croatia, no. 21752/02, §§ 26 et seq., 7 July 2005). It may appear that the reopening of the case “returns” the applicant to the situation existing before he became a victim and restores the status quo ante.", "78. However, in the opinion of the Court this approach is not appropriate in the circumstances of the present case. Acquiring and losing victim status are not necessarily governed by the same rules (see paragraph 66 above). It is clear that the applicant in the present case had become a victim before he lodged the application with the Court. It was for the State to provide the applicant with adequate and sufficient redress in respect of this complaint in a timely manner, that is to say before the Court examined the case (see mutatis mutandis the criteria established in the Scordino case, cited in paragraph 69 above).", "79. In the Court's opinion, the mere reopening of the case was not sufficient to deprive the applicant of his victim status. This view is closely linked to the particular features of the Russian system of supervisory review, as it was at the material time (see paragraphs 42-45 above). In the first place, there were no limits as to the number of times and the circumstances in which the case could be reopened. Second, reopening depended on the discretion of the State prosecutor or judge who decided whether a supervisory-review complaint or application deserved to be examined on the merits.", "Whether it was a prosecutor lodging an application for reopening or the president of the court reversing a decision of a judge not to entertain a supervisory-review complaint, the decision might be taken proprio motu. This would make it possible for the respondent State to evade the Court's substantive review by continuously reopening the proceedings. 80. Such a possibility was not only theoretical. In a number of Russian cases domestic criminal proceedings were reopened shortly after the communication of a case to the Government, but many months or even years after the closure of the original case – see, among other examples, the cases of Zaytsev v. Russia, no.", "22644/02, §§ 9-11, 16 November 2006; Laryagin and Aristov v. Russia, nos. 38697/02 and 14711/03, §§ 18-19, 8 January 2009; Sibgatullin v. Russia, no. 32165/02, § 13, 23 April 2009; Baklanov v. Russia (dec.), no. 68443/01, 6 May 2003; Mikadze v. Russia (dec.), no. 52697/99, 3 May 2005; Gorodnichev v. Russia (dec.), no.", "52058/99, 3 May 2005; Fedorov v. Russia (dec.), no. 63997/00, 6 October 2005; Fedosov, cited above; and Makhkyagin v. Russia (dec.), no. 39537/03, 1 October 2009. Similar examples can be found in the case-law concerning the use of supervisory review in civil cases (see, for instance, Ryabykh v. Russia, no. 52854/99, ECHR 2003‑IX and follow-up cases).", "These cases demonstrate a clear link between the communication and the reopening of a case. 81. Further, in certain cases the connection between communication of the case and the reopening has been even more evident. Thus, in the case of Nurmagomedov v. Russia ((dec.), no. 30138/02, 16 September 2004) it was not until the European Court intervened that the prosecutor lodged an application for supervisory review of a court's ruling, whereas earlier the same prosecutor had dismissed the applicant's complaint about that very ruling saying that it had been “well-reasoned and lawful”.", "In the case of Adzhigovich (cited above, §§ 11 and 12) the applicant's numerous supervisory-review appeals had been rejected several times prior to communication of the case, whereas the same appeals were accepted for examination after the case had been communicated to the respondent Government. Finally, in the present case the applicant's own efforts to obtain supervisory review of the first judgment were futile until such time as the Prosecutor General's office felt compelled to intervene following notification that the applicant had turned to this Court for redress (see paragraphs 24 and 25 above). 82. Against this background the Court has reached the following conclusion. Domestic proceedings are frequently reopened at the instigation of the Russian authorities when they learn that the case has been admitted for examination in Strasbourg.", "Sometimes it benefits the applicant, in which case the reopening serves a useful purpose. However, given the ease with which the Government uses this procedure, there is also a risk of abuse. If the Court were to accept unconditionally that the mere fact of reopening the proceedings was to have the automatic effect of removing the applicant's victim status, the respondent State would be capable of thwarting the examination of any pending case by having repeated recourse to supervisory-review proceedings, rather than correcting the past violations by giving the applicant a fair trial. 83. The Court considers that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status.", "To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening. This approach enables a balance to be struck between the principle of subsidiarity and the effectiveness of the Convention mechanism. On the one hand, it allows the States to reopen and examine anew criminal cases in order to put right past violations of Article 6 of the Convention. On the other hand, new proceedings must be conducted expeditiously and in accordance with the guarantees of Article 6 of the Convention. With this approach the supervisory review can no longer be employed as a means of evading the Court's review thereby preserving the effectiveness of the right of individual petition.", "84. In sum, the Court finds that the mere reopening of the proceedings by way of supervisory review failed to provide appropriate and sufficient redress for the applicant. He may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court therefore rejects the Government's objections under this head. It must now examine whether the hearing of 29 November 2007 was compatible with the requirements of fairness.", "2. Whether the case should have been re-communicated to the Government 85. The Government's argument about the loss of victim status by the applicant also had a procedural limb. They claimed that the Chamber should have re-communicated to them the applicant's complaints after it had received information about the second set of the appeal proceedings. 86.", "The Court observes that the applicant complained about the hearing of 29 November 2007 in his additional pleadings of March 2008. Those pleadings were added by the President of the First Section to the case file for consideration by the Court, and a copy was sent to the Government. The Government were not expressly invited to comment on them; however, nothing prevented them from doing so. The Government had sufficient time to present their additional comments (over nine months), and if the Court had received them, it would certainly have considered them together with the first and second sets of observations submitted by the Government in June and October 2007 respectively. 87.", "Moreover, it is noted that the information referred to by the applicant in his additional pleadings was well known to the Government and they could have learnt about it from other sources. In any event, by accepting the Government's request for referral to the Grand Chamber, the Court gave the Government an additional opportunity to present their views on the matter. In that connection, the Grand Chamber reiterates that even after a Chamber has decided to declare a complaint admissible it may, where appropriate, examine issues relating to its admissibility, for example by virtue of Article 35 § 4 in fine of the Convention, which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”, and in cases where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII, and Perna v. Italy [GC], no. 48898/99, §§ 23‑24, ECHR 2003-V).", "Having regard to the Strasbourg proceedings as a whole, the Court does not consider that the Government have been placed at any disadvantage vis-à-vis the applicant. Finally, the Court has an interest in ensuring that the proceedings are not unnecessarily protracted. 88. The Court concludes that the Government were able to present their position on the case in its entirety. It may thus proceed with the examination of the case.", "3. Whether the applicant waived his right to legal assistance 89. The Government considered that the applicant had waived his right under Article 6 § 3 (c) of the Convention. It is suggested that Ms A. should be regarded as the applicant's representative from the time of her appointment by the Supreme Court. The Government argued that, as the applicant's representative, Ms A. should have asked for a replacement lawyer or for a private meeting with the applicant, which she had not done.", "They treated this as an implicit waiver. 90. 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, entitlement to the guarantees of a fair trial (see Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007). However, such a waiver must be established unequivocally and must not run counter to any important public interest (see Sejdovic v. Italy [GC], no.", "56581/00, § 86, ECHR 2006-II). 91. The Court notes that the applicant is a lay person and has no legal training (see, mutatis mutandis, Cooke v. Austria, no. 25878/94, § 43, 8 February 2000 with further references to Kremzow v. Austria, 21 September 1993, Series A no. 268-B).", "He was unaware of Ms A. 's appointment and eventually refused her services for the very reason that he perceived her participation in the proceedings as a mere formality. He made his position known to the Supreme Court as best he could. The applicant should not be required to suffer the consequences of Ms A. 's passive attitude when one of the key elements of his complaint is precisely her passivity.", "Accordingly, the inaction of Ms A. cannot be regarded as a waiver. 92. The Government emphasised that the applicant had refused to accept Ms A. 's services but had not asked to be assigned somebody else as a lawyer. Neither had he asked for additional time to meet the court-appointed lawyer or to find a lawyer of his own choosing.", "Again, the Court notes that in that context the applicant could not be expected to take procedural steps which normally require some legal knowledge and skills. The applicant did what an ordinary person would do in his situation: he expressed his dissatisfaction with the manner in which legal assistance was organised by the Supreme Court. In such circumstances, the applicant's failure to formulate more specific claims cannot count as a waiver either. 93. The Court, like the Chamber (see § 51 of the judgment), finds that the applicant's conduct, as well as the inaction of Ms A., did not absolve the authorities from their obligation to take further steps to guarantee the effectiveness of his defence.", "4. Whether the applicant received effective legal assistance at the hearing of 29 November 2007 (a) General principles 94. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, and therefore the applicant's complaints under paragraphs 1 and 3 of Article 6 should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI). 95. The Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance ...”, it does not specify the manner of exercising this right.", "It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). In that connection it must be borne in mind that the Convention is intended to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275).", "96. A person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the attendance of the defendant in person does not necessarily take on the same significance for the appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both fact and law, Article 6 does not always entail a right to be present in person. Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence's interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Helmers v. Sweden, 29 October 1991, §§ 31-32, Series A no.", "212-A; Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II; Pobornikoff v. Austria, no. 28501/95, § 24, 3 October 2000; and Kucera v. Austria, no. 40072/98, § 25, 3 October 2002). 97. An accused's right to communicate with his lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention (see Castravet v. Moldova, no.", "23393/05, § 49, 13 March 2007). If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment, cited above, § 33). 98. As regards the use of a video link, the Court reiterates that this form of participation in proceedings is not, as such, incompatible with the notion of a fair and public hearing, but it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments, and that effective and confidential communication with a lawyer is provided for (see Marcello Viola, cited above). (b) Application to the present case 99.", "It is not disputed by the Government that the first hearing before the appellate court (in 2002) fell short of the requirements of Article 6 § 3 (c) of the Convention. However, they claimed that the authorities had done everything in their power to ensure that at the rehearing of the case in 2007 the applicant received legal assistance. Therefore, the Court will concentrate on the second set of the appeal proceedings. 100. The Court observes that the original conviction was quashed by the Presidium of the Supreme Court in 2007 specifically because of the breach of the applicant's right to legal assistance.", "It is thus clear that for the authorities the case was complex enough to require the assistance of a professional lawyer. Given that, as well as the Court's own assessment of the complexity of the issues raised before the appellate court, the Court concludes that the assistance of a lawyer was essential for the applicant in the second set of the appeal proceedings. 101. The Court has considered the arguments of the Government in support of their position and accepts that Ms A. was a qualified lawyer and that there was no explicit disagreement between her and the applicant on the substance or strategy of his defence. While it is established that Ms A had read the case file, it is unclear how much time she spent on it and the Government have not submitted any specific information or evidence on this point.", "She was a priori prepared to assist the applicant, and this is, without doubt, a relevant consideration. However, these arguments are not decisive; the Court must consider whether the arrangements for the conduct of the proceedings, and, in particular, for the contact between Ms A. and the applicant, respected the rights of the defence. 102. The Court emphasises that the relationship between the lawyer and his client should be based on mutual trust and understanding. Of course, it is not always possible for the State to facilitate such a relationship: there are inherent time and place constraints for the meetings between the detained person and his lawyer.", "Moreover, in exceptional circumstances the State may restrict confidential contacts with defence counsel for a person in detention (see Kempers v. Austria (dec.), no. 21842/03, 27 February 1997, or Lanz v. Austria, no. 24430/94, § 52, 31 January 2002). Nevertheless, any limitation on relations between clients and lawyers, whether inherent or express, should not thwart the effective legal assistance to which a defendant is entitled. Notwithstanding possible difficulties or restrictions, such is the importance attached to the rights of the defence that the right to effective legal assistance must be respected in all circumstances.", "103. In the present case, the applicant was able to communicate with the newly-appointed lawyer for fifteen minutes, immediately before the start of the hearing. The Court considers that, given the complexity and seriousness of the case, the time allotted was clearly not sufficient for the applicant to discuss the case and make sure that Ms A. 's knowledge of the case and legal position were appropriate. 104.", "Moreover, it is questionable whether communication by video link offered sufficient privacy. The Court notes that in the Marcello Viola case (cited above, §§ 41 and 75) the applicant was able to speak to his lawyer via a telephone line secured against any attempt at interception. In the case at hand the applicant had to use the video-conferencing system installed and operated by the State. The Court considers that the applicant might legitimately have felt ill at ease when he discussed his case with Ms A. 105.", "In addition, in the Marcello Viola case (cited above), counsel for the defendant had also been able to send a replacement to the video-conference room or, conversely, attend on his client personally and entrust the lawyer replacing him with his client's defence before the court. A similar conclusion was reached in the case of Golubev, cited above, where the Court did not find a violation of Article 6 on account of a hearing via video link because, inter alia, “the applicant's two lawyers were present at the appellate hearing [in the hearing room] and could have supported or expanded the arguments of the defence ... The applicant was able to consult with his lawyer in private before the hearing. Furthermore, since the applicant had two lawyers, he could choose one of them to assist him in the detention centre during the hearing and to consult with him in private.” None of the options described above was available to the applicant in the case at hand. Instead, the applicant was expected either to accept a lawyer he had just been introduced to, or to continue without a lawyer.", "106. The Court notes that the Government did not explain why it was impossible to make different arrangements for the applicant's legal assistance. It accepts that transporting the applicant from Novosibirsk to Moscow for a meeting with his lawyer would have been a lengthy and costly operation (see paragraph 26 above). While emphasising the central importance of an effective legal assistance, the Court must examine whether in view of this particular geographic obstacle the respondent Government undertook measures which sufficiently compensated for the limitations of the applicant's rights. The Court notes in this respect that nothing prevented the authorities from organising at least a telephone conversation between the applicant and Ms A. more in advance of the hearing.", "Nothing prevented them from appointing a lawyer from Novosibirsk who could have visited the applicant in the detention centre and have been with him during the hearing. Furthermore, it is unclear why the Supreme Court did not confer the representation of the applicant to the lawyer who had already defended him before the first-instance court and prepared the original statement of appeal. Finally, the Supreme Court could have adjourned the hearing on its own motion so as to give the applicant sufficient time to discuss the case with Ms A. 107. The Court concludes that the arrangements made by the Supreme Court were insufficient and did not secure effective legal assistance to the applicant during the second set of the appeal proceedings.", "5. Whether the applicant's participation in the case via video link was compatible with Article 6 § 1 of the Convention 108. The applicant complained that he had been unable to present his case adequately because he had participated in the hearing before the court of appeal by video link and not personally. The Court considers that, in view of the above findings under Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention, it is not necessary to examine separately the question whether in the circumstances of this case the applicant's participation in the appeal hearing by video link complied with Article 6 (see, mutatis mutandis, Özcan Çolak v. Turkey, no. 30235/03, §§ 51-53, 6 October 2009).", "6. Conclusion 109. The Court concludes that the proceedings of 29 November 2007 fell short of the requirements of Article 6 § 3 (c) of the Convention, taken in conjunction with Article 6 § 1. Accordingly, the second set of the appeal proceedings failed to cure the defects of the first set: neither in 2002 nor in 2007 was the applicant able to enjoy effective legal assistance. The Court concludes that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof in the proceedings taken as a whole, which ended with the judgment of 29 November 2007.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 111. Under the head of non-pecuniary damage, the applicant claimed 5,000 euros (EUR). The applicant also claimed EUR 300 for the costs and expenses incurred in the proceedings before the Chamber.", "The Government considered that the claim for non-pecuniary damage was excessive and unsubstantiated. As to the costs and expenses, the Government contested the claims, indicating that the applicant had submitted receipts only in respect of 4,189 Russian roubles (RUB). 112. The Court firstly notes that in the present case it has found a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) thereof. Inasmuch as the applicant's claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no.", "46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 35 above). 113. As to the applicant's claims in respect of non-pecuniary damage, the Grand Chamber fully endorses the Chamber's conclusion under Article 41 of the Convention: thus it decides that the applicant sustained non‑pecuniary damage which would not be adequately compensated by the finding of a violation alone.", "Making its assessment on an equitable basis, it awards the applicant EUR 2,000 under this head with EUR 120 for costs and expenses, plus any tax that may be chargeable on those amounts. 114. In addition, the applicant submitted claims for outstanding costs and expenses relating to the proceedings before the Grand Chamber in the amount of RUB 1,400 (postal expenses) and RUB 750 (translation expenses). He submitted documents supporting his claim. The Government accepted that claim.", "Having regard to all the materials in its possession, the Court therefore awards the applicant EUR 54 in respect of additional costs and expenses incurred in the proceedings before the Grand Chamber, plus any tax that may be chargeable on that amount. 115. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's objection of non-exhaustion; 2.", "Joins to the merits the Government's preliminary objection concerning the applicant's victim status; 3. Holds that the applicant has the status of “victim” for the purposes of Article 34 of the Convention in respect of his original complaint alleging unfairness of the appeal proceedings of 2002 and rejects the Government's preliminary objection in this respect; 4. Holds that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) 1 thereof in the proceedings taken as a whole, which ended with the judgment of 29 November 2007; 5. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that the respondent State is to pay the applicant, within three months, EUR 174 (one hundred and seventy four euros) in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant; and (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 in French, and notified at a public hearing on 2 November 2010 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleJean-Paul Costa Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF JUHAS ĐURIĆ v. SERBIA (Application no. 48155/06) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 10 April 2012 STRASBOURG 7 June 2011 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 Juhas Đurić v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Giorgio Malinverni,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, 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. 48155/06) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Viktor Juhas Đurić (“the applicant”), on 20 November 2006. 2. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "The applicant alleged that he had been denied access to a court in the determination of his civil rights and obligations. He further complained about the length of the civil proceedings at issue, as well as the respondent State’s interference with his right to pursue his application before the Court. 4. On 21 April 2010 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1966. He is a practising lawyer and lives in Subotica, Serbia. 6.", "The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicant’s request regarding D.G. 7. On 19 May 2004 the Police Department in Subotica appointed the applicant to represent D.G., a suspect in a preliminary criminal investigation, during his questioning by the police.", "The applicant provided no legal assistance to the suspect beyond this hearing. 8. On the same day the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association. 9. Having received no response, on 13 September 2004 the applicant lodged a civil claim with the Municipal Court in Subotica, requesting that his fees be covered (7,800 Serbian Dinars, “RSD”, approximately 105 Euros, “EUR”, at the time, according to the exchange rate of the National Bank of Serbia).", "10. On 21 April 2005, the Municipal Court rendered a judgment in default (presuda zbog izostanka) in favour of the applicant. It thereby ordered the Police Department to pay him a total of RSD 18,800 (approximately EUR 230 at the time), on account of his fees and litigation costs, plus statutory interest. 11. On 15 August 2005 the District Court in Subotica quashed this judgment on appeal.", "12. On 23 January 2006 the Municipal Court declared itself as lacking jurisdiction ratione materiae to consider the applicant’s claim on its merit (oglasio se stvarno nenadležnim za postupanje) and ordered the applicant to pay RSD 10,500 for litigation costs (approximately EUR 120 at the time). 13. On 29 September 2006 the District Court confirmed this decision on appeal and it thus became final. 14.", "Both the Municipal Court and the District Court reasoned, inter alia, that the fees in question were related to a preliminary criminal investigation, which was a specific kind of administrative proceedings, not a formal criminal procedure, and concluded that his claim was therefore not for the civil courts to determine. The police themselves, however, had had an obligation to decide upon the applicant’s request. 15. On 13 November 2006 the applicant paid the litigation costs imposed against him. 16.", "On 23 January 2008, on the grounds that he had misdirected his payment of 13 November 2006, the applicant was ordered once again to pay the litigation costs at issue plus statutory interest. By March 2009 the applicant therefore paid another RSD 18,068 (approximately EUR 190 at the time). B. The applicant’s request regarding G.I., D.Č., V.Đ., B.Đ. and D.Đ.", "17. On 31 July 2006 the Police Department in Subotica appointed the applicant to represent G.I., D.Č., V.Đ., B.Đ. and D.Đ., all suspects in a preliminary criminal investigation, during their questioning by the police. 18. On the same day the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association (in total RSD 12,960, approximately EUR 155 at the time).", "C. The applicant’s request regarding S.S., B.B., A.S., and D.J. 19. On 6 August 2008, 24 April 2009, 19 May 2009 and 1 June 2009 the Police Department in Subotica appointed the applicant to represent S.S., B.B., A.S., and D.J., all suspects in a preliminary criminal investigation, during their questioning by the police. 20. On 11 August 2008, 11 May 2009, 21 May 2009 respectively the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association (in total RSD 48,000, approximately EUR 500 at the time).", "II. RELEVANT DOMESTIC LAW AND JURISPRUDENCE A. The Criminal Procedure Code (Zakonik o krivičnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 70/01 and 68/02, as well as the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05 and 115/05) 21.", "Article 193 § 1 provides, inter alia, that “criminal procedure costs” (troškovi krivičnog postupka) shall include all expenses incurred in connection with criminal proceedings, “from their commencement until their conclusion”. 22. Article 193 § 6 provides that the costs incurred in the course of a preliminary criminal investigation (pretkrivični postupak), which concern fees to be paid to a police-appointed lawyer, shall be covered by the police themselves. 23. Article 196 provides, inter alia, that a defendant who has been convicted shall bear the costs of the criminal proceedings.", "24. Article 197 § 1 provides, inter alia, that should criminal proceedings (krivični postupak) against a defendant be discontinued, the indictment be rejected, or the defendant be acquitted, the defence lawyer’s fees shall be covered from the court’s budget. 25. Article 197 § 6 provides, inter alia, that should the criminal court reject a claim for costs made under Article 197 § 1, or fail to rule thereupon within a period of three months, the defendant and his or her lawyer shall have the right to file a separate claim before the civil courts. 26.", "Article 225, inter alia, sets out the general duties of the police during a preliminary criminal investigation. 27. Article 226 §§ 7-9, inter alia, regulates the questioning by the police of persons suspected of having committed a crime, whose statements may, under certain conditions, be used as evidence in the subsequent criminal proceedings. 28. Article 243 provides, inter alia, that a formal judicial investigation shall commence upon the adoption of a specific judicial decision to this effect.", "B. The relevant commentary as regards Articles 193, 225 and 226 of the Criminal Procedure Code 29. Costs covered by the police in connection with Article 225 of the Criminal Procedure Code cannot be considered as criminal procedure costs within the meaning of Article 193 thereof (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 338, paragraph 2). 30. General duties of the police during a preliminary criminal investigation are not formally regulated by the Criminal Procedure Code, the exception to this rule being those activities referred to in Article 226 §§ 7-9 (ibid., p. 397, paragraph 8).", "C. The decision issued by the investigating judge of the District Court in Subotica (Ki 25/04 of February 2005) 31. The investigating judge held, inter alia, that the defendant against whom the charges had been dropped was not entitled to the full recovery of his lawyer’s fees from the budget of the District Court in Subotica. Specifically, he noted that since a part of these fees concerned legal services rendered during a preliminary criminal investigation it was up to the police themselves to cover any such costs (the defendant’s lawyer in the domestic proceedings being the applicant in the present case before the Court). D. The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) 32.", "Article 1 provides, inter alia, that the Civil Procedure Act shall be applied to all property-related/pecuniary matters (imovinskopravni sporovi), except those where the law specifically provides for another procedure. 33. Article 16 provides, inter alia, that should a court establish its lack of jurisdiction ratione materiae it shall, ex officio, reject the claim in question regardless of the stage of the proceedings. E. The Courts’ Act 1991 (Zakon o sudovima; published in OG RS 46/91, 60/91, 18/92 and 71/92) 34. Article 12 § 2 (a) provides that Municipal Courts shall have jurisdiction to rule in respect of all property-related/pecuniary claims (imovinskopravnim zahtevima) unless they fall within the competence of the Commercial Courts.", "35. Article 17 § 1 (z) provides that the Supreme Court shall be competent to assess the lawfulness of all final administrative decisions adopted by the State, unless specifically provided otherwise by law. 36. Article 17 § 2 (v) provides that the Supreme Court shall resolve any conflicts of jurisdiction (rešava sukobe nadležnosti) between the lower courts. F. The Organisation of Courts Act 2001 (Zakon o uređenju sudova; published in OG RS nos.", "63/01, 42/02, 27/03, 29/04, 101/05 and 46/06) 37. Article 4 provides that a court of law cannot refuse to consider a claim in respect of which its jurisdiction has been established by law or the Constitution. G. The General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in OG FRY nos. 33/97 and 31/01) 38. Article 208 § 1 provides, inter alia, that in simple matters an administrative body shall be obliged to issue a decision within one month as of when the claimant had lodged his or her request.", "In all other cases, the administrative body shall render a decision within two months thereof. 39. Article 208 § 2 enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied. Where an appeal is not allowed, the claimant shall have the right to directly initiate an administrative dispute before the competent court of law. H. The Administrative Disputes Act (Zakon o upravnim sporovima; published in OG FRY no.", "46/96) 40. Article 6 provides that an administrative dispute may only be instituted against an “administrative act”, which is, inter alia, an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”. 41. Article 9 § 1 (1) provides that an administrative dispute may not be instituted against an “act”/decision rendered in matters where judicial redress has been secured outside of the administrative disputes procedure. 42.", "Articles 8 and 24 provide, inter alia, that a claimant who lodged a request with an administrative body shall have the right to institute an administrative dispute before a court in the following situations: (i) Should an appellate body fail to issue a decision upon his or her appeal within sixty days the claimant may repeat the request, and if the appellate body declines to rule within an additional period of seven days the claimant may institute an administrative dispute. (ii) In accordance with the conditions set out under (i) above, should a first instance administrative body fail to issue a decision and there is no right to an appeal, the claimant may directly institute an administrative dispute. (iii) Should a first instance administrative body fail to issue a decision upon the claimant’s request within sixty days, in matters where an appeal has not been excluded, the claimant shall have the right to lodge the said request with the appellate administrative body. Should that body render a decision, the claimant shall have the right to institute an administrative dispute against it, and should it fail to rule the claimant shall be entitled to institute an administrative dispute in accordance with the conditions set out under (i) above. 43.", "Article 41 § 5 provides that where an administrative dispute has been brought under Article 24 the court shall, should it rule in favour of the claimant, order the administrative body in question to decide upon the claimant’s original request. 44. Articles 63 provides, inter alia, that should the said administrative body fail to comply with this instruction within a period of thirty days, the claimant shall be entitled to request the enforcement of the court’s decision. Should the administrative body fail to respond to this request within a period of seven days, the claimant may petition the court to decide his case on the merits, i.e. to adopt the necessary decision in the administrative body’s stead.", "The court shall then request information from the administrative body as to the reasons for its failure to comply with the court’s order. Should the administrative body fail to respond within a period of seven days or should its explanation fail to satisfy the court, the court itself shall decide on the claimant’s original request. 45. Articles 41 §§ 1-4, 61 and 62 provide details as regards other situations in which a claimant’s request may be decided on its merits. I.", "The relevant commentary as regards Article 24 of the Administrative Disputes Act 46. There is no deadline for the institution of an administrative dispute in accordance with Article 24 of the Administrative Disputes Act (see Komentar Zakona o opštem upravnom postupku i Zakona o upravnim sporovima, Svetislav Vuković, Poslovni biro, Belgrade, 2006, p. 219). J. The relevant domestic case-law provided by the Government 47. In six judgments rendered between 8 December 1999 and 9 April 2009 the Supreme Military Court and the Supreme Court of Serbia, respectively, ruled on the merits of administrative disputes concerning pension entitlements, the right to stand for elections, property-related municipal decisions, disability benefits and the proposed change in the registration of persons authorised to represent political parties (see Up.", "br. 2530/03, Už. 133/92, Už. 11/08, U.br. 1739/08, U.br.", "48/08 and U.br. 1093/02). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 48. The applicant complained under Article 6 § 1 that he had been denied access to a court of law in the determination of his civil rights and obligations, i.e.", "the payment of the fees in question. The applicant further complained, under the same provision, about the length of the proceedings before the courts in Subotica. 49. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by ... [a] ... tribunal established by law ...” A. As regards the access to a court 1.", "Admissibility (a) Article 35 § 3 (b) of the Convention 50. The Government argued that the applicant’s complaint concerning his fees of 19 May 2004 should be declared inadmissible since “he had not suffered a significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention. In particular, they noted that the applicant’s claim concerned fees in the amount of EUR 105 only, and added that it had nevertheless been duly considered by the Municipal Court and District Court in Subotica. Lastly, the Government referred to the Court’s recent case-law (Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; and Bock v. Germany (dec.), 19 January 2010), deeming it particularly relevant.", "51. The applicant acknowledged that his claim concerned a relatively small amount, but argued that as a result of statutory interest it has since increased considerably. He further noted the amount of fees whose payment by the police he had requested subsequently (see paragraphs 17- 20 above); referred to the litigation costs which he had paid or which had been enforced against him (see paragraphs 12, 15 and 16 above); and recalled, in this context, that the average salary in Serbia was approximately EUR 310. The applicant also pointed out that Article 35 § 3 (b) of the Convention was not in force at the time when he had lodged his application with the Court, and maintained that the underlying issue in the present case was not primarily financial: it concerned the payment of fees to police-appointed defence counsel in the course of a preliminary criminal investigation, i.e. an issue of great significance for the functioning of the entire criminal justice system in Serbia.", "Finally, the applicant’s claim had not been “duly considered” by the domestic courts since they had offered no reasoning as to why they considered it as an administrative rather than a civil matter. 52. The Court recalls that Article 35 of the Convention, as amended by Protocol No. 14, which entered into force on 1 June 2010, provides as follows: “3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” 53.", "As indicated in paragraph 79 of the Explanatory Report to Protocol No. 14: “The new criterion may lead to certain cases being declared inadmissible which might have resulted in a judgment without it. Its main effect, however, is likely to be that it will in the longer term enable more rapid disposal of unmeritorious cases”. 54. The main aspect of this new criterion is whether the applicant has suffered any significant disadvantage, which assessment may itself be based on criteria such as the financial impact of the matter at issue or the importance of the case for the applicant (see, for example, Mihai Ionescu v. Romania (dec.), cited above).", "55. However, even should the Court find that the applicant has suffered no significant disadvantage, it shall not declare an application inadmissible if respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination on the merits, or if the matter has not been “duly considered” by a domestic tribunal. 56. Turning to the present case, even assuming that the applicant has not suffered a significant disadvantage in view of the said financial impact and quite apart from the requirement for his complaint to have been duly considered by a tribunal, the Court is of the opinion that respect for human rights, as defined in the Convention, requires its examination on the merits. As noted by the applicant, the role of a police-appointed lawyer in a preliminary criminal investigation is crucial in terms of maintaining the functioning and fairness of the Serbian criminal justice system, particularly since statements made in his or her presence may be used as evidence in the subsequent criminal procedure (see paragraph 27 above).", "It follows therefore that issues closely related to the procedural status of such lawyers, including the payment of their fees, without which their continued participation clearly could not be relied on, cannot be considered trivial, or, consequently, something that does not deserve an examination on the merits. 57. As regards the Court’s decisions in Mihai Ionescu v. Romania and Bock v. Germany (both cited above), it is noted that these cases are clearly distinguishable from the application at hand since, inter alia, the former concerned access to a court in a case involving contractual issues between the applicant and a transportation company, whilst the latter concerned the length of proceedings in a suit where the applicant had claimed EUR 7.99 for the medication prescribed by his physician. In other words, neither raised issues of general interest. 58.", "In view of the above, the Government’s objection must be dismissed. (b) Exhaustion of domestic remedies 59. The Government maintained that the applicant had failed to make use of the relevant administrative remedies and thereafter, if needed, to institute an administrative dispute before the Supreme Court. 60. The Court considers that this objection goes to the very heart of the question whether the applicant had been denied the right of access to a court in the determination of his civil rights and obligations in breach of Article 6 § 1 of the Convention.", "It would thus be more appropriately examined at the merits stage. (c) Conclusion 61. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.", "2. Merits 62. The Government submitted that there had been no violation of the Convention as the applicant had not been denied access to a court in respect of his fees-related request. Indeed, he had simply chosen an inappropriate avenue of redress, i.e. a civil claim, instead of having made use of the existing administrative remedies and then, if necessary, brought an administrative dispute before the Supreme Court.", "Further, the applicant should have tried the administrative avenue even if he had had some doubt as to its effectiveness. Lastly, the Government submitted that domestic courts have frequently ruled in administrative disputes on the very merits of a claimant’s request, in which respect they provided the Court with relevant domestic jurisprudence (see paragraph 47 above). 63. The applicant firstly maintained that he had not instituted administrative proceedings on 19 May 2004, having instead merely requested the police to pay his fees. Secondly, this payment was not an administrative matter as defined under Articles 6 and 9 of the Administrative Disputes Act (see paragraphs 40 and 41 above).", "It was, rather, a pecuniary dispute referred to in Article 1 of the Civil Procedure Act, and, as such, actionable before the civil courts (see paragraph 32 above). Thirdly, even assuming that the administrative avenue could be deemed available, it could not be considered effective in a case such as the applicant’s since the Government have failed to provide relevant domestic case-law to this effect. Moreover, administrative redress would have taken too long, and would have involved the Supreme Court which is normally most reluctant to decide a case on its merits, preferring instead to quash the impugned decision and remit the matter for administrative re-examination. Fourthly, the applicant recalled that, in any event, even where there are several effective remedies available, it is for the applicant to select which remedy to pursue. 64.", "In its Golder v. the United Kingdom judgment of 21 February 1975, the Court held 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” (§ 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X). 65.", "Turning to the present case, it is noted that the applicant’s fees-related claims clearly fall within the scope of Article 6 § 1 (see, mutatis mutandis, Editions Périscope v. France, 26 March 1992, § 40, Series A no. 234‑B). Further, while it is not this Court’s task to decide which domestic court, civil or administrative, had jurisdiction to determine these claims on their merits (see Beneficio Cappella Paolini v. San Marino, no. 40786/98, § 29, ECHR 2004‑VIII (extracts)), it is noted that: (i) the domestic civil courts had considered the fees issue as an administrative matter and had offered some reasoning in this respect (see paragraph 14 above); (ii) the applicant could therefore have made use of the administrative avenue and, if needed, brought his case to the Supreme Court, apparently without a deadline for so doing (see paragraphs 38-46 above); and (iii) the Supreme Court could, ultimately, either have ruled on the merits or indicated which other court had jurisdiction to proceed (see paragraphs 44, 35 and 36 above, in that order; compare also to Beneficio Cappella Paolini v. San Marino, cited above, where both the civil and the administrative courts had declined jurisdiction). Finally, the applicant has failed to provide domestic case-law to the effect that in any other case such as his own the civil courts had declared themselves competent ratione materiae, whilst the respondent State has, for its part, produced jurisprudence indicating that the domestic judiciary has been willing to consider very diverse claims within an administrative disputes’ context, as well as to grant redress on the merits where appropriate (see paragraph 47 above).", "66. In such circumstances, the Court cannot but conclude that the applicant has not been denied access to a court in the determination of his civil rights and obligations. Accordingly, there has been no violation of Article 6 § 1 of the Convention. 67. The Court further finds that in the light of this conclusion it is not necessary to decide on the Government’s objection as to the exhaustion of domestic remedies.", "B. As regards the length of the proceedings before the civil courts 68. The impugned proceedings before the Municipal Court and District Court in Subotica lasted between September 2004 and September 2006, during which time the applicant’s claim was considered at two instances. It follows that this part of the application is manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II.", "OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION 69. The applicant noted that he had received correspondence from the Court with significant delay and, further, that the envelope itself had already been opened by others. In this connection he suggested that this could either have been an “innocent mistake” on the part of the Serbian postal services or a deliberate hindrance in the effective exercise of his right of petition to the Court within the meaning of Article 34 of the Convention. In support of the latter proposition, the applicant recalled that the Serbian postal services were State-run, and emphasised that his application before the Court involved sensitive police-related issues. 70.", "The Government submitted that there has been no violation of Article 34 of the Convention, as the applicant had not been pressured, directly or indirectly, by the State in order to be dissuaded from pursuing his application before the Court. The delay referred to by the applicant was of a purely technical nature, a fact well-known to the Court which has encountered the same problem in many other cases against Serbia currently pending before it. 71. Article 34 of the Convention provides as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 72.", "According to the Court’s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV). 73. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no.", "46468/99, 9 July 2002). 74. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances (ibid.).", "75. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant’s exercise of his right of individual petition, it being noted that the applicant himself has allowed for the possibility that the entire situation was due to an “innocent mistake”. It is further the case, as pointed out by the Government, that the Court has had problems with delayed postal deliveries to and from Serbia, and it certainly cannot speculate as to who may have opened the envelope of the correspondence addressed to the applicant and in which context. 76. In view of the foregoing, the Court finds that the respondent Sate has not failed to comply with its obligations under Article 34 of the Convention.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government’s preliminary objection as to the non-exhaustion of domestic remedies in respect of the complaint about the applicant’s access to a court; 2. Declares the complaint concerning the applicant’s access to a court admissible and the complaint about the length of the proceedings at issue inadmissible; 3. Holds that there has been no violation of Article 6 § 1 of the Convention; 4. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention; 5.", "Holds that in the light of its conclusions under points 2 and 3 it is not necessary to decide on the Government’s preliminary objection mentioned in point 1. Done in English, and notified in writing on 7 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise Tulkens Registrar President" ]

[ "SECOND SECTION CASE OF ÇETIN AND OTHERS v. TURKEY (Applications nos. 40153/98 and 40160/98) JUDGMENT [Extracts] STRASBOURG 13 February 2003 FINAL 13/05/2003 In the case of Çetin and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrL. Loucaides,MrR. Türmen,MrC.", "Bîrsan,MrM. Ugrekhelidze, judges,and Mr T.L. Early, Deputy Section Registrar, Having deliberated in private on 6 November 2001 and 28 January 2003, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in two applications (nos. 40153/98 and 40160/98) 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 eight Turkish nationals (“the applicants”): Mr Vedat Çetin, who lodged application no.", "40153/98 on 5 January 1998, and Mr Mehmet Kaya, Mr Ismet Bakaç, Mr Ahmet Sünbül, Mr Zeynel Bagir, Mr Metin Dag, Mr Kemal Sahin and Mr Naif Kiliç, who jointly lodged application no. 40160/98 on 5 February 1998. 2. The applicants were represented before the Court by Mr S. Tanrikulu, of the Diyarbakir Bar. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The object of the applications was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention. 4. The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.", "11). 5. The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber which would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). 7. After deciding to join the applications the Chamber declared them partly admissible in a decision of 6 November 2001. 8.", "The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS 9. The applicants are Turkish nationals and live in Diyarbakir. At the material time, they worked as journalists on Ülkede Gündem, a Turkish-language daily newspaper based in Istanbul. Publication of the newspaper ceased on 24 October 1998 and it was replaced initially by Özgür Bakis and subsequently, on 27 April 2000, by another daily newspaper, 2 Binde Yeni Gündem.", "That newspaper was replaced on 31 May 2001 by a weekly periodical called Yedinci Gündem. 10. At the material time one of the applicants, Mr Çetin, an independent journalist, wrote a column entitled “Notes from Diyarbakir” (Diyarbakir'dan Notlar), which was published on Tuesdays in Ülkede Gündem. Mr Bakaç was Ülkede Gündem's representative in Diyarbakir. He currently works as a press officer for the Diyarbakir Urban District Council.", "11. As for the other applicants, Mr Bagir is now the mayor of Lice, Mr Kaya is a lawyer and Mr Sahin and Mr Kiliç both teach in schools in eastern Turkey. Mr Sünbül continues to work as a journalist with the weekly publication 7. Gündem, while Mr Dag currently works as a press officer for Kayapinar Town Council. 12.", "The main point at issue in the present case is a ban that was imposed on 1 December 1997 by the governor of the state of emergency region on the distribution of Ülkede Gündem in that region. I. THE CIRCUMSTANCES OF THE CASE A. Background to the governor of the state of emergency region's decision 13. According to the applicants, the distribution of Ülkede Gündem was impeded by the security forces in the period from September to November 1997, and the governor of the state of emergency region subsequently imposed a ban on its publication and distribution in the region where the state of emergency had been declared (see paragraph 24 below).", "On 13 November 1997 the proprietor of Ülkede Gündem sent a letter to the Ministry of the Interior informing it of the disruption caused to the distribution of the newspaper and demanding an end to these unlawful acts. He also sought compensation for the loss sustained. 14. On 19 November 1997 the governor of the state of emergency region wrote to the proprietor of Ülkede Gündem to say that his office was not responsible for the acts mentioned in the letter. He enclosed the seizure orders that had been made by the relevant authorities.", "15. The Government have produced to the Court seventy-two warrants issued by judges of the Istanbul National Security Court for the seizure of various issues of the newspaper in the months of September, November and December 1997. 16. On 4 November 1997 Mr Bakaç and Mr Bagir lodged a criminal complaint with the Diyarbakir public prosecutor's office because of the alleged disruption to the distribution of the newspaper. 17.", "On 25 November 1997 the public prosecutor's office ruled that it had no power to deal with the complaint and referred it to the Diyarbakir Administrative Council under the Prosecution of Civil Servants Act. 18. On 5 February 1998 the Diyarbakir Administrative Council held that there was no case to answer in view of the seizure warrants that had been issued by the Istanbul National Security Court. Its decision was upheld by the Supreme Administrative Court on 3 March 2000. B.", "The ban on the publication and distribution of Ülkede Gündem in the state of emergency region 19. On 1 December 1997 the governor of the state of emergency region imposed a ban on the publication and distribution of Ülkede Gündem in that region. 20. On 4 December 1997 the Diyarbakir Security Directorate wrote to Mr Bakaç, in his capacity as Ülkede Gündem's representative in Diyarbakir, informing him of the ban. Its letter read as follows: “Regard being had to Directive no.", "1344 issued by the governor's office of the state of emergency region on 1 December 1997, With effect from 1 December 1997 the publication and distribution of the daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited.” 21. Likewise, on 5 December 1997 the Tunceli Security Directorate wrote a letter to the company responsible for distributing the newspaper, Birlesik Basim Dagitim A.S., based in Adana, in the following terms: “Regard being had to Directive no. 1344 issued by the governor's office of the state of emergency region on 1 December 1997, With effect from 1 December 1997 the publication and distribution of the Istanbul daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited, pursuant to Article 1 of Legislative Decree no. 430 and section 11(e) of the State of Emergency Act.” C. The bans imposed on the successor publications to Ülkede Gündem 22. On 7 May 1999 the governor of the state of emergency region imposed a ban pursuant to Article 11 (e) of Legislative Decree no.", "285 on the publication and distribution of Özgür Bakis, the daily newspaper that had replaced Ülkede Gündem. Similarly, on 1 June 2000 he issued an order prohibiting the publication and distribution of the daily newspaper 2 Binde Yeni Gündem in the state of emergency region. Lastly, on 27 June 2001 the weekly publication Yedinci Gündem, which had replaced 2 Binde Yeni Gündem, met the same fate, with a ban being imposed on its publication and distribution in the region. 23. The applicants have produced a notice dated June 2000 which shows that at different times the governor of the state of emergency region imposed bans on the publication and distribution of seventeen periodicals, including Ülkede Gündem, Özgür Bakis and 2 Binde Yeni Gündem.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The state of emergency region 24. The governor's office of the state of emergency region was set up with special powers after the state of siege was officially declared to be over on 19 July 1987 by Legislative Decree no. 285 of 10 July 1987.", "A state of emergency was thus decreed in the provinces of Bingöl, Diyarbakir, Elazig, Hakkari, Mardin, Siirt, Tunceli and Van. On 19 March 1994 the state of emergency was extended to the province of Bitlis, but lifted in the province of Elazig. It was declared to be over in the provinces of Batman, Bingöl and Bitlis on 2 October 1997, in the province of Van on 30 July 2000 and in the provinces of Tunceli and Hakkari on 1 August 2002. In July 2002 it was extended by four months in the provinces of Diyarbakir and Sirnak. B.", "The powers of the governor of the state of emergency region 25. The powers of the governor of the state of emergency region (Olaganüstü Hal Bölge Valisi) are set out in the State of Emergency Act (Law no. 2935 of 25 October 1983) and various legislative decrees that were issued after the state of emergency was declared (Legislative Decrees nos. 313, 387, 413, 421, 425, 426, 427, 428, 430, 432 and 481). 26.", "Section 11(e) of the State Emergency Act reads as follows: “... If a state of emergency is decreed, the following measures may be imposed with a view to maintaining general security, safety and public order and to preventing any escalation in the violence ...: ... (e) An order prohibiting, either absolutely or without prior permission, the editing, dissemination, publication or distribution of newspapers, reviews, brochures, pamphlets, posters or any similar publications, or the publication or distribution of any such [publications] which have been printed or disseminated outside the state of emergency region ...” 27. Article 1 (a) of Legislative Decree no. 430 provides: “The printing, dissemination, publication or distribution of books, reviews, newspapers, brochures, posters or other similar publications liable seriously to undermine public order in the region, to cause agitation among the local population or to obstruct the security forces in the course of their duties by giving a false account of operations being conducted in the region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned. [Likewise,] the publication or distribution of [any publication of the same type] that has been printed and published outside the state of emergency region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned ...” C. Judicial scrutiny of legislative decrees on the state of emergency and of measures taken by the governor of the state of emergency region 1.", "Constitutional review of legislative decrees on the state of emergency 28. The relevant part of Article 148 § 1 of the Constitution provides: “... There shall be no right of appeal to the Constitutional Court to contest the form or substance of legislative decrees issued during a state of emergency, a state of siege or in wartime.” 2. Judicial scrutiny of measures taken by the governor of the state of emergency region 29. Article 7 of Legislative Decree no.", "285, as amended by Legislative Decree no. 425 of 9 May 1990, precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no. 285 set aside. 30. Article 8 of Legislative Decree no.", "430 reads as follows: “No criminal, financial or civil liability may be asserted against ... the governor of the state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This shall be without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification [sebepsiz].” 3. The case-law of the Constitutional Court 31. The Constitutional Court has reviewed the constitutionality of Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no.", "425 of 9 May 1990, in a judgment of 10 January 1991, which was published in the Official Gazette on 5 March 1992. It stated: “It is not possible to reconcile that provision [which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny. There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review. Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom.", "However, the impugned provision is contained in a legislative decree that cannot be the subject of constitutional review ... Consequently, the application for an order quashing that provision must be dismissed as being incompatible ratione materiae [yetkisizlik] ...” 32. As regards Article 8 of Legislative Decree no. 430, in two judgments delivered on 3 July 1991 and 26 May 1992 (published in the Official Gazette on 8 March 1992 and 18 December 1993 respectively), the Constitutional Court followed that decision in dismissing as incompatible ratione materiae applications for orders quashing the relevant provisions. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 40.", "The applicants complained that the ban imposed by the governor on 1 December 1997 on the distribution of the daily newspaper Ülkede Gündem in the state of emergency region constituted an unjustified interference in the exercise of their right to impart information or ideas. They relied in that connection on Article 10 of the Convention, the relevant part of 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. ... 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.” ... 3. “Necessary in a democratic society” 48. It remains to be examined whether the measure concerned was “necessary in a democratic society” to achieve those aims. ... (b) The Court's assessment 57. The Court would first point out that Article 10 guarantees freedom of expression to “everyone”.", "No distinction is made in it according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (see, mutatis mutandis, Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, pp. 16-17, § 35). It applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information (see, mutatis mutandis, Autronic AG v. Switzerland, judgment of 22 May 1990, Series A no. 178, p. 23, § 47).", "In the present case, the Court considers that the applicants' ability to exercise their right to freedom to impart ideas and information to the inhabitants of the state of emergency region was directly at stake, as the ban affected Ülkede Gündem, which reported and commented on, among other things, items of regional news gathered by journalists – the applicants in this instance. 58. The Court considers that the only way it can examine whether the interference was necessary is by looking at the wording of section 11(e) of the State of Emergency Act (Law no. 2935) and Article 1 (a) of Legislative Decree no. 430, and the arguments put to it by the Government, as the impugned measure escaped judicial scrutiny by the domestic courts and the governor of the state of emergency region did not give any reasons for his decision.", "59. The Court observes that section 11(e) of the State of Emergency Act and Article 1 (a) of Legislative Decree no. 430 are drafted in very broad terms and grant the governor of the state of emergency region vast powers to impose administrative bans on the publication and distribution of publications. Such prior restrictions are not, in principle, incompatible with the Convention. However, they may only be imposed if a particularly strict framework of legal rules regulating the scope of bans and ensuring the effectiveness of judicial review to prevent possible abuse is in place.", "60. As regards, firstly, the scope of the governor's powers, the Court notes that the relevant provisions enable him to prohibit the circulation and distribution of any written material considered liable seriously to undermine public order in the region, cause agitation among the local population or obstruct the security forces in the course of their duties by giving a false account of operations being conducted in the region (see paragraphs 26-27 above). 61. Having carefully examined the extent of what it accepts are exceptional powers, which by their nature may only be justified by very special circumstances, the Court must seek to determine what safeguards existed against their possible abuse in practice. In that connection, it observes that, although it is possible to counterbalance and limit powers of this type by strict and effective judicial scrutiny, both the provisions conferring the powers on the governor of the state of emergency region and the manner in which the rules are applied escape such scrutiny.", "In that regard, the Court can but share the concern expressed by the Constitutional Court in these terms (see paragraph 31 above): “It is not possible to reconcile that provision [which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny. There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review. Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom. However, the impugned provision is contained in a legislative decree that cannot be the subject of constitutional review ...” 62.", "The Court is obviously prepared to take into account the background to cases before it and, in particular, the difficulties inherent in the fight against terrorism. In that regard, it notes that the Commission declared inadmissible two applications concerning a ministerial order imposing restrictions on broadcasting media in circumstances similar to those in the present case (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports (DR) 70, p. 262, and Brind and Others v. the United Kingdom, no. 18714/91, Commission decision of 9 May 1994, DR 77-A, p. 42). However, the present case is distinguishable from the aforementioned applications, which concerned restrictions on broadcasting media, whose impact is often far more immediate and powerful than that of the press.", "In addition, the regulations examined by the Commission described in considerable detail the type of programme to which the ban applied (interviews with the spokespersons of certain organisations). Lastly, the decisions imposing the bans had been subjected to judicial scrutiny. 63. The Court observes in passing that it is unable to accept the Government's assertion that the reason the governor of the state of emergency region decided to ban the newspaper was that certain articles published in it, which had resulted in various issues being seized because they were liable to incite the population to riot or sought to vindicate criminal acts by terrorists, might have serious repercussions for public order in the region. The Court considers that the political tension caused by terrorist acts in the region concerned at the material time is a factor to be taken into account (see, mutatis mutandis, Piermont v. France, judgment of 27 April 1995, Series A no.", "314, p. 26, § 77). While it is certainly possible that the articles that led to the seizure of the newspapers would have exacerbated an already tense situation, the decision to impose the ban contained no reasons and made no reference to the seizure warrants issued by the judges in Istanbul. In addition, the ban was not a preventive measure taken as a result of the seizures to which the Government refer, since the seizure of a publication as a preventive measure may only be ordered by a judge in criminal proceedings of a different kind to those which were brought in the present case. Accordingly, in the absence of detailed reasoning accompanied by proper judicial scrutiny, the decision to implement such a measure lays itself open to various interpretations. Thus, the ban could be perceived by the applicants as a response to heavy criticism in Ülkede Gündem of the security forces' operations in the region.", "64. As to the Government's arguments that the local population had numerous sources of ideas and information available and that, as journalists, the applicants were involved in the publication of various newspapers and thus had been able to impart their ideas and information along with the rest of the country, the Court reiterates that the press plays an essential role in a democratic society. In view of their passive role as recipients of information, citizens must be permitted to receive a variety of messages, to choose between them and reach their own opinions on the various views expressed, for what sets democratic society apart is this plurality of ideas and information. 65. Furthermore, contrary to what the Government have asserted, the ban did not end after fifty-three days.", "The case file shows that although Ülkede Gündem ceased publication on 24 October 1998, the measure was still very much in force in June 2000. In addition, the successor publications to Ülkede Gündem, and various other publications, were unable to escape the same fate (see paragraphs 22-23 above). Lastly, since there is no right to seek judicial review in the administrative courts, such measures can only be lifted by a unilateral discretionary act on the part of the governor of the state of emergency region. 66. In conclusion, the Court notes that, because the courts have no power to review administrative bans on publications, the applicants were deprived of sufficient safeguards to protect against abuse.", "Accordingly, in the light of these considerations, it finds that the interference caused by section 11(e) of the State of Emergency Act and Article 1 (a) of Legislative Decree no. 430, and the way in which those provisions were applied in the instant case, cannot be regarded as having been “necessary in a democratic society” and went beyond the requirements of the legitimate aim pursued. There has therefore been a violation of Article 10 of the Convention. ... FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 10 of the Convention; ...", "Done in French, and notified in writing on 13 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyJean-Paul Costa Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF LAKIĆEVIĆ AND OTHERSv. MONTENEGRO AND SERBIA (Applications nos. 27458/06, 37205/06, 37207/06 and 33604/07) JUDGMENT STRASBOURG 13 December 2011 FINAL 13/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lakićević and others v. Montenegro and Serbia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,David Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A.", "De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 22 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four separate applications (nos. 27458/06, 37205/06, 37207/06 and 33604/07) lodged with the Court against both Montenegro and Serbia (the first and the third applicants) and against Montenegro alone (the second and the fourth applicants) under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Montenegrin nationals, Ms Nevenka Lakićević (the first applicant), Mr Borislav Vukašinović (the second applicant), Mr Veselin Budeč (the third applicant) and Mr Vlado Rajković (the fourth applicant) on 5 June 2006, 2 August 2006, 24 July 2006 and 24 July 2007 respectively. 2. The first, third and fourth applicants were, exceptionally, granted leave to represent themselves (Rule 36 § 2 of the Rules of Court).", "The second applicant was represented by Mr V. Đurišić, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No.1 about the suspension of their pensions. 4.", "On 19 April 2010 the President of the Fourth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants - Ms Nevenka Lakićević (the first applicant), Mr Borislav Vukašinović (the second applicant), Mr Veselin Budeč (the third applicant), and Mr Vlado Rajković (the fourth applicant) - are all Montenegrin nationals who were born in 1947, 1937, 1924, and 1944 respectively.", "They live in Herceg-Novi (the first and third applicants) and Podgorica (the second and fourth applicants). 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. Suspension of pensions 7.", "Between November 1989 and June 2002 the applicants closed their private law firms and submitted papers to begin their retirements. 8. Between August 1990 and September 2002 their old-age and disability pension entitlements, as well as the exact amount of their pensions (starosna i invalidska penzija), were established by decisions of the Pension and Disability Insurance Fund (Republički fond penzijskog i invalidskog osiguranja; hereinafter “the Pension Fund”). The decisions, as submitted by the second and fourth applicants, allowed the applicants to resume working on a part-time basis. 9.", "Between April 1996 and June 2002 the applicants reopened their own legal practices on a part-time basis. 10. On 1 April 2004, 20 July 2005, 3 June 2005 and 24 November 2005 the Pension Fund suspended (obustavlja) payment of the applicants’ pensions respectively, until such time as they ceased professional activity. These decisions were all “deemed to be applicable as of 1 January 2004”, which was when section 112 of the Pension and Disability Insurance Act 2003 (hereinafter “the Pension Act 2003”) entered into force (see paragraphs 23 and 25 below). 11.", "The Pension Fund’s rulings were subsequently upheld by the Ministry of Labour and Social Welfare (Ministarstvo rada i socijalnog staranja), as well as, ultimately, by the Administrative Court (Upravni sud) on 6 December 2005, 4 April 2006, 18 April 2006 and 7 February 2007 in respect of the first, second, third and fourth applicants respectively. The Administrative Court explained, inter alia, that the applicants had not been deprived of their pension entitlements as such, but that the payment of their pensions had instead been suspended on the basis of the relevant domestic legislation. 12. Finally, on 13 June 2006, 27 June 2006 and 28 May 2007 respectively, the Supreme Court (Vrhovni sud) in Podgorica dismissed the second, third and fourth applicants’ requests for judicial review of their cases (zahtjev za vanredno preispitivanje sudske odluke). In so doing, the Supreme Court essentially endorsed the reasons given by the Administrative Court.", "13. The first applicant did not attempt to make use of the judicial review avenue, in view of the fact that the other applicants’ identical requests had already been rejected by the Supreme Court. 14. Payment of the second applicant’s pension was resumed with effect from 1 December 2007, which is when he ceased his professional activity. The payment of the second, third and fourth applicants’ pensions was resumed with effect from 1 January 2009, which is when the Amendments to the Pension Act entered into force, repealing section 112 of the Pension Act 2003 (see paragraph 26 below).", "B. Civil proceedings against the applicants 1. The first applicant 15. On 30 June 2004 the Pension Fund lodged a compensation claim against the first applicant, seeking repayment of the pension payments she had received for January and February 2004 in the total amount of 425.74 euros (EUR). In response, the first applicant lodged a counterclaim seeking payment of the pension which had not been paid to her between March 2004 and December 2008 due to the suspension of her pension rights, amounting in total to EUR 15,332.45.", "16. On 4 November 2009 the Court of First Instance (Osnovni sud) in Herceg Novi, after joining the two proceedings, ruled in favour of the first applicant, referring, in particular, to section 6 of the Amendments to the Pension and Disability Insurance Act 2003 (hereinafter “the Amendments to the Pension Act”), section 193 of the Pension Act 2003 as well as a decision of the Constitutional Court of Montenegro (see paragraphs 26, 24 and 28 below). On 19 January 2010 the High Court (Viši sud) in Podgorica overturned this judgment and ruled against the first applicant, relying on sections 112 and 222 of the Pension Act 2003 and considering that their application was not retroactive. This judgment was upheld by the Supreme Court on 3 June 2010, which court mainly endorsed the reasons of the High Court. In doing so, the Supreme Court in particular referred to section 112 of the Pension Act 2003.", "17. On 29 July 2010 the Court of First Instance issued an enforcement order providing that the Pension Fund would retain half the first applicant’s pension until the entire sum owed had been paid. On 4 November 2010 this decision was upheld by the High Court. 2. The second and third applicants 18.", "On 17 January 2007 and an unspecified date the Pension Fund lodged compensation claims against the second and third applicants respectively, seeking repayment of the pension they had received from 1 January 2004 onwards. 19. On 20 June 2007 the Court of First Instance in Podgorica ruled against the second applicant, which judgment was upheld by the High Court in Podgorica on 13 February 2009. It would appear from the case file that this decision has been enforced. 20.", "On 25 February 2010 the Court of First Instance in Herceg Novi ruled in favour of the third applicant. On 16 April 2010 the High Court in Podgorica overturned this decision and ruled against him. In doing so, it referred to the above decisions of the Administrative Court and the Supreme Court (see paragraphs 11 and 12 above). It would appear from the case file that this decision has been enforced in subsequent enforcement proceedings. 4.", "The fourth applicant 21. There is no information in the case file as to whether the Pension Fund instituted civil proceedings against the fourth applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional Charter of the State Union of Serbia and Montenegro (Ustavna povelja državne zajednice Srbija i Crna Gora, published in the Official Gazette of Serbia and Montenegro no.", "1/03) 22. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory. B. Pension and Disability Insurance Act 2003 (Zakon o penzijskom i invalidskom osiguranju, published in the Official Gazette of the Republic of Montenegro - OG RM - no. 54/03) 23.", "Section 112 paragraph 1 provided that a person’s pension shall be suspended should he or she resume working or establish a private practice, for as long as this activity continues. 24. Section 193 paragraph 1 provided that beneficiaries of, inter alia, old-age pension (starosna penzija) and disability pension (invalidska penzija), who obtained these rights in accordance with the relevant legislation in force before this Act entered into force, shall preserve these rights afterwards at the same level (u istom obimu) with appropriate adjustments [on the basis of living expenses and average salaries]. 25. Section 222 provided that this Act would enter into force on 1 January 2004.", "C. Amendments to the Pension and Disability Insurance Act 2003 (Zakon o izmjenama i dopunama zakona o penzijskom i invalidskom osiguranju, published in the Official Gazette of Montenegro - OGM - no. 79/08) 26. Section 6 repealed section 112 paragraph 1 of the Pension Act 2003. These Amendments entered into force on 1 January 2009. D. Decision of the Federal Constitutional Court published in the Official Gazette of the Federal Republic of Yugoslavia no.", "39/2002 27. On 12 July 2002 the Federal Constitutional Court of Yugoslavia, Yugoslavia being comprised of Montenegro and Serbia at the time, held that section 32 of the Federal Pension and Disability Insurance Act, which essentially corresponded to section 112 paragraph 1 of the Pension Act 2003, was in breach of the Constitution of the Federal Republic of Yugoslavia. In particular, once pension entitlements had been acquired they could not be repealed or restricted by subsequent measures. Further, there was a lack of proportionality between the public interest, protection of which was allegedly the intention of the provisions in question on the one hand and the interests of individuals in respect of their property rights on the other. Lastly, the court held that the section in question was indeed retroactive in nature, since it had also been applied to pensioners who had resumed professional activities before its entry into force.", "E. Decision of the Constitutional Court of the Republic of Montenegro U br. 7/04, 11/04, 30/04, 60/04 and 101/04 28. On 10 November 2004 the Constitutional Court of the Republic of Montenegro rejected an initiative to assess the constitutionality of section 112 paragraph 1 of the Pension Act 2003. In so doing, it held, inter alia, that it was a matter of legislative judgment whether or not to allow a person to simultaneously receive pension and resume working, and that therefore this matter fell outside the jurisdiction of the Constitutional Court. It further held: “According to the ...Constitutional Court, Article 112 § 1 of the 2003 Act does not have retroactive effect, as it does not apply to situations which came into existence before its entry into force, but only as regards those ... which have arisen ... [thereafter] ...”.", "F. Administrative Dispute Act (Zakon o upravnom sporu, published in OG RM no. 60/03 and OGM no. 32/11) 29. Articles 40-46 provide details concerning a request for judicial review (zahtjev za vanredno preispitivanje sudske odluke). 30.", "In particular, Articles 40-42 provide that parties may file a request for judicial review with the Supreme Court. They may do so within a period of 30 days following receipt of a final decision rendered by the Administrative Court, and only if the relevant legislation, procedural or substantive, has been breached by the lower court. 31. In accordance with Article 46, the Supreme Court shall, should it accept a request for judicial review lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a re-trial before the Administrative Court. THE LAW I. JOINDER OF THE APPLICATIONS 32.", "The Court notes that the applications under examination concern the same issue. It is therefore appropriate to join them, in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 33.", "The applicants complained about the suspension of their pensions. 34. The Court considers that their complaints naturally fall to be examined under Article 1 of Protocol No. 1 only (see, mutatis mutandis, Janković v. Croatia (dec.), no. 43440/98, ECHR 2000‑X; Skórkiewicz v. Poland (dec.), no 39860/98, 1 June 1999; and Domalewski v. Poland (dec.), no.", "34610/97, 15 June 1999), 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.” 1. Compatibility ratione personae (a) As regards the applicants 35. The Government maintained that the applicants had lost their victim status when the Amendments to the Pension Act entered into force on 1 January 2009, as of that moment payment of their pensions was resumed (see paragraphs 26 and 14 above).", "36. The first, second and third applicants contested this claim. The fourth applicant made no comment in this respect. In particular, the first applicant maintained that her victim status persisted, as she had never obtained any compensation for the pension she had not received for the period between 1 March 2004 and 31 December 2008, and was thus still deprived of her property. 37.", "The Court reiterates that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, a breach of the Convention and have provided redress (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). Accordingly, in principle, where domestic proceedings are settled and include an admission of the breach by the national authorities and the payment of a sum of money amounting to redress, the dual requirements established in Eckle are satisfied, and the applicant can no longer claim to be a victim of a violation of the Convention. 38. The Court notes that in the present case the national authorities have never acknowledged, either expressly or in substance, a breach of the Convention, nor did they provide any redress for the suspension of pensions which the applicants allege constituted a violation of the Convention.", "On the contrary, the Government explicitly stated that the suspension of the pensions was not in breach of the Convention, and the domestic courts refused to award any compensation in this respect (see paragraph 57 below and paragraphs 15-17 above). 39. In view of the above, without prejudging the merits of the case, the Court considers that the applicants’ status as “victims” within the meaning of Article 34 of the Convention is unaffected. Accordingly, the Government’s objection in this regard must be dismissed. (b) As regards the respondent States 40.", "The first and third applicants made complaints against both Montenegro and Serbia. 41. The Court notes that each member State of the then State Union of Serbia and Montenegro was responsible for the protection of human rights in its own territory (see paragraph 22 above). Given the fact that the entire proceedings have been conducted solely within the competence of the Montenegrin authorities, which also had the exclusive competence to deal with the subject matter, the Court, without prejudging the merits of the case, finds the applicants’ complaints in respect of Montenegro compatible ratione personae with the provisions of the Convention and Protocol No. 1 thereto.", "For the same reason, however, the first and third applicants’ complaint in respect of Serbia is incompatible ratione personae within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 70, 28 April 2009, and Šabanović v. Montenegro and Serbia, no. 5995/06, § 28, 31 May 2011). 2. Compatibility ratione temporis 42.", "Even though the Government did not raise any objection in this regard, the Court has to satisfy itself that it has jurisdiction in any case brought before it (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III, as well as Kavaja and Miljanić v. Montenegro (dec.), nos. 43562/02 and 37454/08, § 30, 23 November 2010). 43. The Court notes that the relevant domestic legislation providing for the suspension of the applicants’ pensions had entered into force on 1 January 2004, which was before the respondent State’s ratification of Protocol No.", "1 to the Convention on 3 March 2004. However, the Court also observes that the applicants continued to receive their pensions until well after 3 March 2004. The suspension, therefore, did not automatically take place on the basis of the legislation alone, but only after the Pension Fund had rendered specific decisions to that effect, all of which were issued after the respondent State’s ratification of the Convention and Protocol No. 1 thereto. 44.", "In view of this, the Court considers that the impugned interference falls within this Court’s competence ratione temporis (see, mutatis mutandis, Blečić, cited above, § 83-84; as well as Zana v. Turkey, 25 November 1997, § 42, Reports of Judgments and Decisions 1997‑VII). 3. Exhaustion of domestic remedies (a) As regards the first applicant 45. The Government maintained that the first applicant had not exhausted all effective domestic remedies. In particular, she did not seek a Supreme Court judicial review.", "46. The first applicant contested the effectiveness of this remedy, especially in view of the decisions given in respect of the other three applicants, and in view of the fact that the Supreme Court had, in any case, ruled against her in the civil proceedings (see paragraphs 12, 15 and 16 above). 47. The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective.", "48. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and which offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV). 49. The application of this rule must make due allowance for the context.", "Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others, cited above, § 69). 50. The Court recalls that it has already established that an appeal on points of law in civil proceedings (revizija) and an appeal on points of law in criminal proceedings (zahtjev za ispitivanje zakonitosti pravosnažne presude), are, in principle, effective domestic remedies within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, Rakić and Others v. Serbia, nos. 47460/07 et seq., §§ 37 and 27, 5 October 2010, and the authorities cited therein; Debelić v. Croatia, no. 2448/03, §§ 20 and 21, 26 May 2005; and Mamudovski v. the former Yugoslav Republic of Macedonia (dec.), no.", "49619/06, 10 March 2009). As the request for judicial review in the administrative dispute, even if described as “extraordinary” in the Administrative Dispute Act (zahtjev za vanredno preispitivanje sudske odluke) corresponds to the said remedies in civil and criminal proceedings, the Court considers that, given its nature, it must also, in principle and whenever available in accordance with the relevant rules on procedure, be considered an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (compare and contrast the analysis in Kolu v. Finland (dec.), no. 56463/10, ECHR 3 May 2011). 51. Turning to the present case, the Court notes that the first applicant indeed failed to submit a request for judicial review with the Supreme Court.", "It also notes that the Supreme Court ruled against the other three applicants upon their requests for judicial review, whose claims were identical to the claim of the first applicant, and, in doing so, it essentially endorsed the reasons given previously by the Administrative Court (see paragraph 12 above). In addition, the Supreme Court had indeed had a chance to rule in respect of the first applicant, albeit in civil proceedings, and it ruled against her (see paragraph 16 above). As there is nothing in the case file to suggest that the Supreme Court would have ruled any differently in respect of the first applicant, the Court considers that requiring her to use this remedy in such circumstances, would amount to excessive formalism and that therefore she did not have to exhaust this particular avenue of redress (see, mutatis mutandis, Uljar and Others v. Croatia, no. 32668/02, § 32 in fine, 8 March 2007). The Government’s objection in this regard must therefore be dismissed.", "(b) As regards the other applicants 52. The Government maintained that the applicants had not exhausted all effective domestic remedies. In particular, they had not instituted civil proceedings in order to obtain compensation. 53. The first applicant submitted that she had instituted civil proceedings, but to no avail, as the domestic courts had ruled against her.", "The second and third applicants contested the effectiveness of civil proceedings, claiming that the domestic courts had never awarded any damages in such cases, and inviting the Government to submit any domestic case-law to the contrary. The fourth applicant made no comment in this respect. 54. The Court notes that the first applicant did institute civil proceedings for compensation, but that the domestic courts ruled against her (see paragraphs 15-17 above). The Court also observes that the Government failed to submit any other domestic case-law in support of their claim that the applicants could have obtained compensation in civil proceedings.", "55. In view of the above, the Court is of the opinion that the civil proceedings cannot be considered as an effective domestic remedy in the particular circumstances of the case, thus absolving the second, third and fourth applicants of the requirement to make use of this remedy. The Government’s objection in this regard must therefore also be dismissed. 4. Conclusion 56.", "The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 1. The parties’ submissions 57.", "The Government maintained that there was no general obligation on the State to allow pensioners to work, and that thus it was within the State’s discretion as to how to regulate it. In particular, it was not in the public interest for people to enjoy the benefits of both a pension and work at the same time. In this respect the Government noted that the domestic authorities were better placed to assess what was in the public interest, and had a wide margin of appreciation in that regard. Therefore, the impugned provision of the Pension Act 2003 was a legitimate measure in the public interest, proportionate to the legitimate aim of preserving the budgetary stability of the State and improving social policy. As everybody could choose which right they preferred to use, a fair balance was achieved between the private interests of the applicants on the one hand and the public interest on the other.", "Therefore, there was no violation of Article 1 of Protocol No. 1. 58. The first, second and third applicants contested these claims. In particular, the first applicant referred to section 193 of the Pension Act 2003 (see paragraph 24 above), arguing that it confirmed that this Act did not have retroactive effect but that it should have been applied only to pensioners who re-established their private practice after this Act had entered into force.", "She held that this was further confirmed by the Constitutional Court of Montenegro (see paragraph 28 above), as well as, eventually, by the State itself when it abolished the relevant part of the relevant section (see paragraph 26 above). The second applicant, in particular, maintained that the State had proved the unlawfulness of the relevant part of the provision concerned by abolishing it by means of the Amendments to the Pension Act. The fourth applicant made no comment in this respect. 2. The Court’s assessment 59.", "The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to pensions (see Andrejeva v. Latvia [GC], no. 55707/00, § 77, 18 February 2009, and, more recently, Stummer v. Austria [GC], no. 37452/02, § 82, 7 July 2011). Thus, that provision does not guarantee the right to acquire property (see, among other authorities, Van der Mussele v. Belgium, 23 November 1983, § 48, Series A no.", "70; Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002‑II; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004‑IX). Nor does it guarantee, as such, any right to a pension of a particular amount (see, among other authorities, Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, Decisions and Reports (DR) 3, p. 25; T. v. Sweden, no.", "10671/83, Commission decision of 4 March 1985, DR 42, p. 229; Janković v. Croatia (dec.), no. 43440/98, ECHR 2000‑X; Kuna v. Germany (dec.), no. 52449/99, ECHR 2001‑V (extracts); Lenz v. Germany (dec.), no. 40862/98, ECHR 2001‑X; Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004‑IX; Apostolakis v. Greece, no.", "39574/07, § 36, 22 October 2009; Wieczorek v. Poland, no. 18176/05, § 57, 8 December 2009; Poulain v. France (dec.), no. 52273/08, 8 February 2011; and Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 55, 31 May 2011). However, where a Contracting State has in force legislation providing for the payment as of right of a pension – whether or not conditional on the prior payment of contributions – that legislation has to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No.", "1 for persons satisfying its requirements (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010‑...). The reduction or the discontinuance of a pension may therefore constitute interference with possessions that needs to be justified (see Kjartan Ásmundsson, cited above, § 40; Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009; and Wieczorek, cited above, § 57). 60.", "The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see The Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 82, ECHR 2000-XII) and that it should pursue a legitimate aim “in the public interest”. 61. According to the Court’s case‑law, the national authorities, because of their direct knowledge of their society and its needs, are in principle better placed than the international judge to decide what is “in the public interest”.", "Under the Convention system, it is thus for those 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. Moreover, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning pensions or welfare benefits involves consideration of various economic and social issues. The Court accepts that in the area of social legislation including in the area of pensions States enjoy a wide margin of appreciation, which in the interests of social justice and economic well-being may legitimately lead them to adjust, cap or even reduce the amount of pensions normally payable to the qualifying population including, like in the instant case, by means of rules on incompatibility between the receipt of a pension and paid employment. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality.", "Therefore, the margin of appreciation available to the legislature in implementing such policies should be a wide one, and its judgment as to what is “in the public interest” should be respected unless that judgment is manifestly without reasonable foundation (see, for example, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, 16 March 2010; Andrejeva v. Latvia [GC], no. 55707/00, § 83, 18 February 2009; as well as Moskal v. Poland, no. 10373/05, § 61, 15 September 2009). 62.", "Any interference must also be reasonably proportionate to the aim sought to be realised. In other words, a “fair balance” must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98; and Wieczorek, cited above, §§ 59‑60, with further references). 63.", "While it must not be overlooked that Article 1 of Protocol No. 1 does not restrict a State’s freedom to choose the type or amount of benefits that it provides under a social security scheme (see Stec and Others, cited above § 54; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, ECHR 2006‑VI; and Wieczorek, cited above, § 66 in limine), it is also important to verify whether an applicant’s right to derive benefits from the social security scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39 in fine; and Wieczorek, cited above, § 57 in fine). 64. Turning to the present case, the Court considers that the applicants’ pension entitlements constituted a possession within the meaning of Article 1 of Protocol No.", "1 to the Convention. Further, the Pension Fund’s suspension of payment of the applicants’ pensions clearly amounted to an interference with the peaceful enjoyment of their possessions (see paragraph 59 above). 65. As regards the requirement of lawfulness, the Court notes that the payment of pensions was suspended on the basis of section 112 of the Pension Act 2003, which seems to imply that it was in accordance with the law. Certainly, the interpretation of this provision given by the domestic courts favours such a conclusion (see paragraph 16 above).", "66. The Court considers that such an interpretation of the domestic courts raises some doubts in view of Section 193 of the Pension Act 2003, as well as in view of the decision of the Constitutional Court of Montenegro, and the ruling of the Federal Constitutional Court in respect of an essentially identical provision of the Federal Pension and Disability Insurance Act, both Montenegro and Serbia being part of one legal system at the time (see paragraphs 24, 28 and 27 above). 67. In any event, even assuming that it was in accordance with law, it remains to be resolved whether the said interference pursued a legitimate aim and if there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 68.", "Even though the Government submitted no supporting documents as to the benefits of this measure, the Court may accept that the aims pursued were social justice and the State’s economic well-being, both of which are legitimate. 69. As regard the issue of proportionality the Court notes that the initial decisions issued by the Pension Fund conferred on the applicants the entitlement to receive their respective pensions. In doing so, the Pension Fund agreed that the applicants had satisfied all the statutory conditions and qualified for the pensions. Under the rules in force at the time, gainful employment was not incompatible with a Fund member’s receipt of a full pension, as long as the employment was on a part-time basis (see paragraph 8 above).", "After meeting the legal criteria for retirement, and encouraged by the pension system to which they had contributed over a number of years, the applicants reopened their private practices on a part-time basis whilst at the same time receiving their pensions (see, mutatis mutandis, Kjartan Ásmundsson, cited above, § 44, ECHR 2004‑IX). 70. The Court further notes that, when the applicants’ pensions were suspended by the relevant Pension Fund decisions in 2004 and 2005, this was not due to any changes in their own circumstances, but to changes in the law. This particularly affected the applicants, as it entirely suspended the payment of the pensions they had been receiving for a number of years, taking no account of the amount of revenue generated by their part-time work (see, mutatis mutandis, Kjartan Ásmundsson, cited above, § 44, as well as, in contrast, among many authorities, Domalewski and Skórkiewicz, both cited above, where the applicants were deprived only of their special privileged status, while retaining all the rights attaching to their ordinary pension under the general social insurance system). Even though the applicants have submitted no data as to how much exactly they earned in their private practice, and as the Government have offered no evidence to the contrary, in view of the fact that they worked on a part-time basis only the Court considers that the pension still constituted a considerable part of their gross monthly income (see Kjartan Ásmundsson, cited above, § 44).", "71. In this context, the Court also observes that the Pension Act 2003 affected not only the applicants’ right to receive their pension in the future but partly also the payments received hitherto, as the first, second and third applicants were obliged to pay back the amounts they had received after 1 January 2004 (see paragraphs 17, 19 and 20 above, as well as, in contrast, mutatis mutandis, Wieczorek v. Poland, cited above, § 72, and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010). 72. Against this background, the Court finds that, as individuals, the applicants were made to bear an excessive and disproportionate burden.", "Even having regard to the wide margin of appreciation enjoyed by the State in the area of social legislation, the impact of the impugned measure on the applicants’ rights, even assuming its lawfulness (see paragraph 66 above), cannot be justified by the legitimate public interest relied on by the Government. It could have been otherwise had the applicants been obliged to endure a reasonable and commensurate reduction rather than the total suspension of their entitlements (see, among many authorities, Kjartan Ásmundsson, cited above, § 45; Wieczorek v. Poland, cited above, § 67, Maggio and Others v. Italy, cited above, § 62, Banfield v. the United Kingdom (dec.), no. 6223/04, 18 October 2005) or if the legislature had afforded them a transitional period within which to adjust themselves to the new scheme. Furthermore, they were required to pay back the pensions they had received as of 1 January 2004 onwards, which must also be considered a relevant factor to be weighed in the balance. 73.", "In view of the above, the Court considers that there has been a violation of Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 75. The first applicant claimed EUR 15,769.07 in respect of pecuniary damage (EUR 15,332.45 on account of suspended pensions and EUR 436.62 on account of pensions reimbursed to the Pension Fund) and EUR 9.000 in respect of non-pecuniary damage. 76. The second applicant claimed EUR 12,377.3 in respect of pecuniary damage (EUR 8,532.86 on account of suspended pensions and EUR 3,844.44 on account of pensions reimbursed to the Pension Fund). 77.", "The third applicant claimed a total amount of EUR 18,448.8 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage. 78. The fourth applicant claimed EUR 10,618.49 in respect of pecuniary damage. He enclosed a calculation made by the Pension Fund stating that the unpaid pensions amounted to EUR 8,038.53, as he had been regularly receiving the pension until 1 May 2005. 79.", "The Government maintained that the amounts sought by the applicants were inappropriately high and not in line with the relevant case-law of the Court. 80. The Court is satisfied that the applicants have suffered pecuniary damage as a result of the violation found and considers that they should be awarded compensation in an amount reasonably related to any prejudice suffered. It cannot award them the full amounts claimed, precisely because a reasonable and commensurate reduction in their entitlement could have been compatible with their Convention rights (see paragraph 72 above). Deciding in the light of the figures available in the case file, the Court awards the first and third applicants EUR 8,000 each, the second applicant EUR 6,000 and the fourth applicant EUR 4,000, plus any tax that may be chargeable on those amounts (see, mutatis mutandis, Kjartan Ásmundsson, cited above, § 51).", "81. Even if not the subject of a specific claim by the second and fourth applicants, the Court accepts that all the applicants in the present case have certainly suffered some non-pecuniary damage which cannot be sufficiently compensated by the sole finding of a violation (see, mutatis mutandis, Garzičić v. Montenegro, no. 17931/07, § 42, 21 September 2010; as well as Staroszczyk v. Poland, no. 59519/00, §§ 141-143, 22 March 2007). Making its assessment on an equitable basis, the Court awards each of them the sum of EUR 4,000.", "B. Costs and expenses 82. The first applicant claimed EUR 679.8 in total for the costs and expenses incurred both before the domestic courts and this Court. The third applicant claimed a lump sum of EUR 400 for the costs of “translation and correspondence”. The second and the fourth applicants made no claims in this respect.", "83. The Government left the decision in this respect to the Court’s discretion. 84. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire sum claimed by the first applicant.", "As the third applicant failed to submit evidence, such as itemised bills and invoices, that the expenses sought had actually been incurred, the Court accordingly rejects that claim. Lastly, the Court considers that there is no call to award the second and fourth applicants any sum on this account, as they made no claims in this respect. C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaints in respect of Montenegro admissible, and the complaints in respect of Serbia inadmissible; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the 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 plus any tax that may be chargeable: (i) the first and third applicants EUR 8,000 (eight thousand euros) each, the second applicant EUR 6,000 (six thousand euros) and the fourth applicant EUR 4,000 (four thousand euros), in respect of pecuniary damage, (ii) EUR 4,000 (four thousand euros) each for non-pecuniary damage, and (iii) EUR 679.8 (six hundred and seventy-nine euros and eighty cents) to the first applicant for costs and expenses.", "(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLech Garlicki Deputy Registrar President" ]

[ "FIRST SECTION CASE OF KHALITOVA v. RUSSIA (Application no. 39166/04) JUDGMENT STRASBOURG 5 March 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision. In the case of Khalitova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 12 February 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39166/04) 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 Luiza Dungalovna Khalitova (“the applicant”), on 20 October 2004.", "2. The applicant was represented by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained that her husband had been killed by State agents, that the authorities had failed to carry out an adequate investigation into the matter, and that there were no effective remedies in respect of those violations.", "She relied on Articles 2 and 13 of the Convention. 4. On 1 September 2005 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court. 5. On 3 September 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). 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 1966 and lives in the village of Goyskoye in the Urus-Martan District of the Chechen Republic. A. The facts 1. Killing of the applicant’s husband 8.", "The applicant did not witness the killing of her husband and the account of events given below is based on witness statements by the applicant’s fellow villagers. She submitted statements by a Mr A. and a Mr K. 9. On 11 September 2000 Mr A. and Mr K. were guarding agricultural fields to the north of the village of Goyskoye near the Goitinka River in the Urus-Martan District of the Chechen Republic. At about 3 p.m. they met the applicant’s husband, Mr Lecha Adamovich Khazhmuradov, born in 1964, and Mr D., who had come to get some wood in the nearby forest area. 10.", "Some time later a number of armed men arrived in two armoured personnel carriers. According to the witnesses, they were servicemen of the Russian armed forces. Without any prior warning the servicemen opened indiscriminate fire across the field. The witnesses hid so that they could observe the events in safety. The servicemen also fired at the applicant’s husband and Mr D. Mr Lecha Khazhmuradov was killed on the spot.", "Then the servicemen crossed the river and shot Mr D. They dropped the two dead bodies in the river, got in the armoured personnel carriers and drove away in the direction of Urus-Martan. 11. According to Mr A. and Mr K., the armoured personnel carriers should have passed near a federal military unit located at that time on the north-western outskirts of the village. They should also have passed through a federal check-point which blocked the motorway leading from Goyskoye to Urus-Martan. 12.", "After the soldiers had left, Mr A., Mr K. and several other residents of Goyskoye, who had come from the village having heard the shooting, took the corpses out of the water and took them back to the village. 13. Later that day the villagers informed the law-enforcement agencies of the incident. 14. The killing of Mr D. does not form part of the present application.", "2. Official investigation 15. According to the Government, on 12 September 2000 the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) instituted an investigation into the murder of Mr Lecha Khazhmuradov and Mr D. under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case file was assigned the number 24376. It does not appear that the applicant was duly informed of that decision.", "16. In the Government’s submission, on 12 September 2000 the status of victim was given to Mr Lecha Khazhmuradov’s brother. The applicant’s request that she be declared a victim of a crime was rejected, since she had not furnished the authorities with documents confirming that she was married to Mr Lecha Khazhmuradov. 17. According to the Government, on 12 September 2000 the investigating authorities inspected the scene of the incident, which was heavily saturated with a substance of a brown colour resembling blood, and found fragments of biological material resembling brain matter.", "They also found six bullet cases of 7.62 mm calibre. At a certain distance from that place, on the other river bank, the investigating authorities found twenty-five bullet cases of 7.62 x 39 mm calibre, eight bullet cases of 7.62 x 51 mm calibre and two bullet cases of 5.45 mm calibre. Also, the tyre tracks of a motor vehicle, presumably an armoured personnel carrier, were found at the scene of the incident. According to an expert examination carried out on an unspecified date, the bullet cases found at the scene of the incident were of the type used for firing from various modifications of machine-guns, sniper rifles and self-loading rifles. 18.", "According to the Government, a medical examination of Mr Lecha Khazhmuradov’s body carried out on an unspecified date reported that he had died due to an extensive open wound to the head with calvarias bone fracture and complete ejection of his brain matter. 19. The Government further submitted, without specifying the dates, that the investigating authorities had identified and questioned eyewitnesses to the incident, Mr E., Mr Lit. and Mr A. In particular, Mr E., a warden of agricultural fields, stated that on 11 September 2000 he had been guarding the field and the applicant’s husband and Mr D. had been working in the nearby wood, when at about 4 p.m. a group of men in green uniforms had arrived in two armoured personnel carriers and started indiscriminate shooting.", "After the men in armoured personnel carriers had left, he and his workmate, Mr Lit., had approached the place where the applicant’s husband and Mr D. had been working and had found their corpses in the river nearby. 20. According to the Government, Mr Lit. stated during his witness interview that on 11 September 2000 he had been guarding the field, together with Mr E., whilst Mr Lecha Khazhmuradov and Mr D. had been working in the nearby wood. Then servicemen in two armoured personnel carriers had arrived and opened indiscriminate shooting from automatic firearms.", "Fifteen or twenty minutes later the soldiers had ceased fire, then five or six of them had crossed the river and entered the wood in which the applicant’s husband and Mr D. had been working. Mr Lit. had heard the soldiers curse, then several shots followed, and then he had seen the soldiers throw the dead bodies of Mr Lecha Khazhmuradov and Mr D. into the river. After the soldiers had left in their armoured personnel carriers in the direction of the motorway, Mr Lit. and Mr E. had taken the corpses out of the river and delivered them to their homes.", "21. In the Government’s submission, Mr A. had given similar oral evidence. 22. The Government also submitted, without specifying the date, that the investigating authorities had also questioned the applicant, who had stated that on 11 September 2000 her husband and Mr D. had left to get some firewood to the north of the village near the river. Some time later she had heard machine-gun fire coming from that direction, and some time later the dead bodies of her husband and Mr D. had been brought back by other residents of their village who had seen the incident and had stated that her husband and Mr D. had been killed by Russian servicemen.", "23. In their additional memorial of 8 May 2008 submitted in reply to the applicant’s observations, the Government further stated that the investigating authorities had also questioned a certain Mr L., a serviceman who had been on duty at a check-point in the vicinity of the scene of the incident on 11 September 2000. According to the Government, Mr L. had submitted that on the date in question at about 6 p.m. two armoured personnel carriers had passed through the check-point, their registration numbers being covered with cartridge boxes, and that some time later local residents had arrived in several cars and had stated that unidentified persons had shot down their fellow-villagers. In the Government’s submission, Mr L. was unable to recall whether the local residents mentioned that the murder had been committed by servicemen. 24.", "In the applicant’s submission, she had regularly visited the district prosecutor’s office and requested that she be informed of any progress in the investigation, but in vain. 25. On 29 August 2003 the applicant requested the district prosecutor’s office to inform her of any progress in the investigation and allow her to join the proceedings as a victim and a civil claimant. 26. On 1 October 2003 the district prosecutor’s office suspended the investigation in case no.", "24376 for a failure to identify those responsible. The applicant was not promptly informed of the decision. 27. On 23 January 2004 the applicant requested the district prosecutor’s office to inform her of the progress in the investigation and to admit her to the proceedings as a victim and a civil claimant. 28.", "On 18 February 2004 the district prosecutor’s office quashed the decision of 1 October 2003 for the reason that the investigation was incomplete and resumed the proceedings in case no. 24376. They noted, in particular, that Mr Lecha Khazhmuradov and Mr D. had been killed “for no good reason” by “servicemen of an unknown military unit”. 29. On 20 February 2004 the district prosecutor’s office decided to allow the applicant to join the proceedings as a civil claimant.", "On 26 February 2004 they also granted her the status of victim of a crime. It was mentioned in both decisions that Mr Lecha Khazhmuradov and Mr D. had been killed “for no good reason” by “servicemen of an unknown military unit”. 30. On 19 March 2004 the district prosecutor’s office again stayed the proceedings in case no. 24376 for failure to identify those responsible.", "31. In the applicant’s submission, since April 2004 she has not even once been informed by the authorities of the progress in the investigation in case no. 24376. 32. On 7 December 2005 the applicant requested the district prosecutor’s office to carry out a number of investigative actions; in particular, to question servicemen of the military unit from the DON-100 regiment of the Russian Ministry of the Interior, who had been stationed on the north-western outskirts of Goyskoye in September 2000; to question servicemen who had been on duty at the check-point on the motorway between Goyskoye and Urus-Martan, which the alleged perpetrators had passed through after the incident; to carry out ballistic tests; and to check the firearms which had been in use by the servicemen of the DON-100 regiment, among other steps.", "According to the applicant, she has not received any reply to her request. 3. The applicant’s attempt to gain access to the investigation file 33. On 3 March 2004 the applicant requested the district prosecutor’s office to allow her access to the investigation file. 34.", "On 5 March 2004 the district prosecutor’s office observed that the investigation in case no. 24376 was pending and dismissed the applicant’s request, stating that under domestic law access to a case file could only be allowed upon completion of the investigation. 35. On 12 March 2004 the applicant challenged the prosecutor’s decision of 5 March 2004 before the Urus-Martan Town Court. 36.", "By a decision of 29 March 2004 the Urus-Martan Town Court dismissed the applicant’s complaint, stating that “during the investigation a sufficient range of investigative steps aiming at resolving the crime and identifying those responsible [had been] undertaken”, that the investigation had not yet been completed but had been suspended owing to the fact that it was impossible to establish those responsible, and that therefore the decision of 5 March 2004 was well-founded, as under national law a victim could also gain access to the case file upon the completion of an investigation. 37. On 21 April 2004 the Supreme Court of the Chechen Republic dismissed the applicant’s appeal and upheld the first-instance decision. B. The Court’s request for the investigation file 38.", "In September 2007, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 24376 opened in connection with the murder of the applicant’s husband and Mr D. The Government refused to submit any documents from the file, stating that, under Article 161 of the Russian Code of Criminal Procedure, disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. They also submitted that they had taken into account the possibility of requesting confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file, the applicants or their representatives would not disclose those materials to the public. According to the Government, in the absence of any sanctions in respect of applicants for the disclosure of confidential information and material, there were no guarantees concerning compliance by the applicants with the Convention and the Rules of Court. 39.", "In January 2008 the Court reiterated its request. In reply, the Government again refused to produce any documents from the file for the aforementioned reasons. At the same time, they suggested that a Court delegation could be given access to the file in Russia, with the exception of those documents containing military and State secrets, and without the right to make copies of the case file. II. RELEVANT DOMESTIC LAW 40.", "For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007. THE LAW I. THE GOVERNMENT’S OBJECTION REGARDING EXHAUSTION OF DOMESTIC REMEDIES 41. The Government argued that the investigation into the murder of the applicant’s husband had not been completed, and that therefore the domestic remedies had not been exhausted in respect of her complaints.", "42. The applicant called into question the effectiveness of the investigation, stating that in her case it was not a remedy under Article 35 of the Convention. She also asserted that an administrative practice consisting of the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in the Chechen Republic rendered any potentially effective remedies inadequate and illusory in her case. In this connection she relied on applications submitted to the Court by other individuals claiming to be victims of similar violations. 43.", "The Court considers that the Government’s objection as to the exhaustion of domestic remedies raises issues which are closely linked to the question of the effectiveness of the investigation. It therefore decides to join this objection to the merits of the applicant’s complaint under the procedural limb of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 44. The applicant complained that her husband had been killed by unidentified Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter.", "She relied on Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 45.", "The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Alleged failure to protect the right to life (a) Submissions by the parties 46. The applicant insisted that it was beyond reasonable doubt that her husband had been killed by servicemen of the federal armed forces. She claimed to that end that at the material time the territory where her husband had been murdered had been under the firm control of the federal forces, that the alleged perpetrators had arrived in armoured personnel carriers, such heavy military vehicles being in exclusive possession of the State, and that after the murder the alleged perpetrators had passed a military unit located on the north-western outskirts of Goyskoye and then gone through a federal check-point on the motorway between Goyskoye and Urus-Martan. 47. The applicant further argued that the Government had not advanced any convincing argument to suggest that Mr Lecha Khazhmuradov had been killed by any persons other than federal servicemen.", "She also pointed to the Government’s refusal to submit any documents from the file of the criminal investigation into her husband’s death and suggested that the burden should be shifted to the Government to prove that State agents had not been responsible for Mr Lecha Khazhmuradov’s murder. The applicant further argued that no evidence had been submitted that the deprivation of her husband of his life had been justified under Article 2 § 2 of the Convention. 48. The Government argued that the investigation had not obtained sufficient evidence that representatives of the federal forces had been involved in the murder of the applicant’s husband. According to the Government, that possibility had been thoroughly checked, but was not proved so far; the motor vehicles the perpetrators had been driving were yet to be identified.", "They submitted that some procedural documents indeed stated that the applicant’s husband had been killed “by servicemen of an unidentified military unit”, however, that wording was based on the witness statements of Mr E., Mr Lit. and Mr A., who had taken the perpetrators for soldiers. According to the Government, the criminal case file contained no other evidence to corroborate those witness statements. 49. The Government further argued that whilst Mr E., Mr Lit.", "and Mr A. had claimed that the incident had occurred at around 4 p.m. and that immediately thereafter the servicemen had left in two armoured personnel carriers in the direction of Urus-Martan, serviceman L., who had been on duty at the check-point, had indicated that two armoured personnel carriers had passed through at around 6 p.m. The Government thus argued that the former and the latter might have been different armoured personnel carriers. 50. The Government also noted that the events under examination had occurred in 2000, when violent confrontation had taken place between the federal forces and the rebel fighters and numerous murders had been committed by members of illegal armed groups, using firearms and military vehicles. The Government argued therefore that there were no grounds to claim that the right to life of the applicant’s husband secured by Article 2 of the Convention had been breached by the State.", "(b) The Court’s assessment 51. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention.", "Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-50, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI; and Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999-III). 52.", "In cases where there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicant’s allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII). As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts)).", "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). 53. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "Nonetheless, 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. 54. In the present case, the Court observes that although the Government denied the State’s responsibility for the killing of the applicant’s husband, they acknowledged that Mr Lecha Khazhmuradov had died as a result of murder committed by armed men on 11 September 2000. It has therefore to be established whether the armed men belonged to the federal forces.", "55. In this connection, the Court observes that it is clear from the parties’ submissions that the incident of 11 September 2000 was witnessed by at least four persons. Two of them, Mr A. and Mr K., made written statements submitted by the applicant to the Court, whilst two others, Mr E. and Mr Lit., as well as Mr A., gave oral evidence to the investigating authorities, as indicated by the Government. All the eyewitnesses consistently held that on 11 September 2000 at about 4 p.m. they had come under indiscriminate machine-gun fire by Russian servicemen who had arrived in two armoured personnel carriers, and that those servicemen had then shot dead the applicant’s husband (see paragraphs 10 and 19-21 above). 56.", "The Government did not dispute the circumstances of the incident as submitted by eyewitnesses, and, more specifically, the fact that the alleged perpetrators had arrived at, and left, the scene of the incident in two armoured personnel carriers. Moreover, the Government referred to a report on the inspection of the scene of the incident which, according to them, attested the presence of the tyre tracks of a motor vehicle, presumably an armoured personnel carrier (see paragraph 17 above). The Government also referred to the witness statements of a certain serviceman, L., to the effect that on 11 September 2000 at about 6 p.m. two armoured personnel carriers with obscured registration numbers had passed through a check-point on the road leading from Goyskoye to Urus-Martan (see paragraph 23 above). The Court, unlike the Government, does not consider that the alleged discrepancy between the time of the murder indicated by the eye-witnesses and the time the armoured personnel carriers passed through the check-point indicated by serviceman L. casts doubt on the reliability of the submissions of the eyewitnesses that the alleged perpetrators had moved around in armoured personnel carriers. The Court notes in this respect that the Government did not indicate the dates on which the statements had been obtained by the investigating authorities.", "It is not unlikely that if witnesses had been questioned after a considerable lapse of time they would have had difficulties in recalling the exact timing of the events in question. Moreover, the Government did not indicate whether the investigating authorities had taken any steps to resolve the alleged contradiction. Overall, having regard to the materials in its possession, the Court has little doubt that the armed men who killed the applicant’s husband were equipped with armoured personnel carriers. 57. In this connection, the Court notes that heavy military vehicles such as armoured personnel carriers were presumably in the exclusive possession of the State.", "It further notes the applicant’s arguments that during the period under examination the area where the applicant’s husband was murdered had been under the firm control of the federal forces, that the events in question had taken place in the close proximity of a federal military unit, and that the perpetrators must have passed through a check-point on the road between the village of Goyskoye and Urus-Martan, none of these arguments having been disputed by the Government. In a situation where a group of armed men was able to move freely in heavy military vehicles, and to open heavy fire in broad daylight within a territory which was under the control of the federal forces, and, in particular, in the close proximity of a federal military unit, the Court cannot but reach the conclusion that those men were State agents. The Court therefore finds it established that the applicant’s husband was killed on 11 September 2000 by State agents. 58. In the absence of any plausible explanation on the part of the Government as to the circumstances of the death of the applicant’s husband, the Court further finds that the Government have not accounted for his death and that the respondent State’s responsibility for this death is therefore engaged.", "59. Accordingly, there has been a violation of Article 2 of the Convention in this respect. 2. Alleged inadequacy of the investigation (a) Submissions by the parties 60. The applicant argued that the investigation in the present case had fallen short of the Convention standards.", "It has been pending for several years but failed to produce any meaningful results. The applicant further argued that despite the overwhelming evidence confirming the involvement of military personnel, her husband’s murder was being investigated by a civilian prosecutor’s office rather than a military one. She argued that the civilian prosecutors lacked the competence to investigate crimes committed by the military. The applicant also contended that the authorities had failed to carry out a number of essential investigative measures, to inform her of the progress of the investigation, or to allow her access to any documents from the case file. In this latter respect the applicant thus argued that she had been excluded from the criminal proceedings.", "61. The Government argued that the investigation into the murder of the applicant’s husband met the Convention requirement of effectiveness, as all the measures envisaged in national law were being taken to identify those responsible. They submitted that the investigation was being carried out in full compliance with the domestic law and that a large number of investigative actions had been carried out, this fact having been confirmed by a decision of the Urus-Martan Town Court of 29 March 2004 given upon the applicant’s complaint about the refusal of access to the case file (see paragraph 36 above). The Government also argued that once the applicant had been granted the status of victim, she had been duly informed of procedural decisions taken during the investigation. The Government also referred to the Court’s case-law, stating that the procedural obligation under Article 2 of the Convention did not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or be consulted or informed about every step (see Brecknell v. the United Kingdom, no.", "32457/04, § 77, 27 November 2007), and argued that by virtue of her status as a victim, the applicant would be able to gain access to the case file once the investigation was completed. The Government thus insisted that they had fulfilled their procedural obligation under Article 2 of the Convention. (b) The Court’s assessment 62. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, cited above, § 88).", "In particular, there is an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.", "The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001). 63. In the instant case, the Court observes that some degree of investigation was carried out into the killing of the applicant’s husband.", "It must assess whether that investigation met the requirements of Article 2 of the Convention. 64. In this connection, the Court notes that despite its repeated requests for a copy of the file on the investigation concerning the murder of Mr Lecha Khazhmuradov, the Government refused to disclose any of the documents from that file, referring to Article 161 of the Russian Code of Criminal Procedure. Drawing inferences from the respondent Government’s conduct when evidence was being obtained (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25), the Court, in the light of these inferences, will have to assess the merits of this complaint on the basis of the information on the course of investigation submitted by the Government and the few documents produced by the applicant.", "65. The Court further notes with concern that not only did the Government refuse to produce the case file documents, but they also failed to submit a detailed account of the relevant events, with the result that the Court is not even able to build a time line of the investigation. It remains unclear, as no information or relevant documents were submitted by the Government, whether any investigative activity took place between 12 September 2000, when, according to the Government, the criminal proceedings in connection with the murder of the applicant’s husband were instituted (see paragraph 15 above) and 1 October 2003, when the district prosecutor’s office decided the suspend the investigation, according to the information later received by the applicant. It is unclear, in particular, whether, and if so how often, the investigation was suspended and resumed during the period in question and which, if any, investigative measures were taken, apart from the inspection of the scene of the incident which, in the Government’s submission, was carried out on 12 September 2000 (see paragraph 17 above), and the granting of the status of victim to Mr Lecha Khazhmuradov’s brother (see paragraph 16 above) on the same date. 66.", "The Government also submitted that the investigating authorities questioned four witnesses, carried out a medical examination of the dead body of the applicant’s husband, and performed ballistic tests, but failed to indicate the dates on which those steps had allegedly been taken. It therefore remains unclear whether these investigative measures were taken promptly, or with delay. Furthermore, the Government did not indicate whether any investigative steps other than those mentioned above had been taken to resolve the crime. In particular, it does not appear that any meaningful efforts were made to investigate the possible involvement of federal military personnel in the murder of the applicant’s husband despite strong evidence of that possibility, and notably statements of at least three eyewitnesses to the effect that Mr Lecha Khazhmuradov had been shot dead by armed men moving around in two armoured personnel carriers. It does not appear, as the Government provided no information or documents in this respect, that the authorities attempted to establish any other witnesses in the case, to find and question the servicemen of a military unit located in the vicinity of the incident, or to take any other investigative steps, as suggested by the applicant in her request of 7 December 2005 (see paragraph 32 above).", "67. The material in the Court’s possession further reveals that the investigation was suspended on 1 October 2003, then resumed on 18 February 2004, and then again suspended on 19 March 2004. It is unclear whether the investigation has remained suspended since this latter date, or has been reopened at some point, the Government not having provided any concrete information apart from a general assertion that the investigation has not been completed to date. 68. Lastly, the Court observes that whilst, as asserted by the Government, the criminal proceedings in connection with the murder of the applicant’s husband were instituted on 12 September 2000, the applicant was not declared a victim in those proceedings until 26 February 2004.", "Even if the Court is prepared to accept the Government’s argument that such a significant delay in taking one of the most essential steps, which should have afforded minimum procedural guarantees to the applicant, could be explained by the applicant’s failure to adduce the required documents, it notes that even after that date the applicant does not appear to have been duly informed of the course of the investigation. In this respect, the Court notes the applicant’s argument that she was never informed of the conduct of the investigation after April 2004, an argument which the Government did not contest or produce any documents to refute, and which supports the supposition that the investigation has remained suspended since March 2004. The Court also observes that, despite her efforts, the applicant was never given access to the file of the investigation. In such circumstances, the Court considers that she was excluded from the criminal proceedings and that the authorities clearly and blatantly failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the legitimate interests of the next of kin of the victim in the proceedings (see Oğur, cited above, § 92). 69.", "In the light of the foregoing, and with regard to the inferences drawn from the respondent Government’s submission of evidence, the Court is bound to conclude that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the death of the applicant’s husband. It accordingly dismisses the Government’s preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal proceedings, and holds that there has been a violation of Article 2 of the Convention on that account. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 70. The applicant complained that she had had no effective domestic remedies in respect of the violation of her rights under Article 2 of the Convention, contrary to 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.” 71.", "The applicant insisted that in her case the domestic remedies available had proved to be ineffective, given that the domestic investigation, which had been ongoing for several years, had not brought any positive results, and that in the absence of any findings of the domestic investigation, the effectiveness of any other remedy was consequently undermined. 72. The Government contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention. They submitted that the applicant had been granted the status of victim and therefore had been afforded procedural rights in the criminal proceedings, and in particular, the right to give oral and other evidence, to file motions, to receive copies of procedural decisions, and to access the case file and make copies of the materials of the file on completion of the investigation. 73.", "The Government further argued that the applicant could have appealed in court against actions or omissions of the investigation authorities, in accordance with Article 125 of the Russian Code of Criminal Procedure. They cited several examples where individuals’ complaints lodged under the said Article had been granted fully or in part. In the Government’s submission, the applicant, too, had availed herself of the remedy afforded to her by challenging in court, though unsuccessfully, the investigating authorities’ refusal to give her access to the case file. The Government further referred to a letter of the Supreme Court of Russia dated 16 October 2007 which stated that the applicant had not lodged any other court complaints against the actions of law-enforcement officers. The Government did not submit the letter to which they referred.", "74. Also, in the Government’s view, if the applicant had considered that any action or omission of public officials had caused her damage, she could have sought compensation for that damage in court by virtue of the relevant provisions of the Russian Civil Code, but she had never attempted to avail herself of that opportunity. A. Admissibility 75. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 76. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision.", "The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI). 77. 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, 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, §§ 161-62, ECHR 2002-IV; Assenov and Others v. Bulgaria, 28 October 1998, § 117, Reports 1998‑VIII; and Süheyla Aydın v. Turkey, no.", "25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Orhan v. Turkey, no. 25656/94, § 384, 18 June 2002). 78. In view of the Court’s findings above with regard to Article 2, the applicant’s complaint was clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no.", "131). The applicant should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 79. The Court has held in a number of similar cases that in circumstances where, as in the present case, the criminal investigation into the death was ineffective and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see, among other authorities, Musayeva and Others v. Russia, no. 74239/01, § 118, 26 July 2007, or Kukayev, cited above, § 117).", "80. It therefore dismisses the Government’s argument that the applicant had effective remedies under the criminal or civil law and finds that there has been a violation of Article 13 in conjunction with Article 2 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 82. The applicant claimed 80,000 euros (EUR), on behalf of herself and her three minor children, in respect of non-pecuniary damage for the suffering which she had endured as a result of the loss of her husband – father to her children – and the authorities’ failure properly to investigate the matter. 83. The Government contested the applicant’s claim as excessive. 84.", "The Court observes that it has found a violation of Articles 2 and 13 of the Convention on account of the death of the applicant’s husband and the absence of effective remedies to secure domestic redress for the aforementioned violations. The applicant must have suffered anguish and distress as a result of all these circumstances, which cannot be compensated by the mere finding of a violation. Having regard to these considerations, the Court awards the applicant, on an equitable basis, EUR 35,000 for non‑pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 85.", "The applicant also claimed 2,036 United Kingdom pounds sterling (GPB – approximately EUR 2,400) for the costs and expenses she had incurred before the Court. This amount included GBP 500 for a lawyer of the European Human Rights Advocacy Centre, GBP 1,361.90 for translation of documents, and GBP 175 for administrative costs. The applicant requested that the amount sought be transferred directly into her representatives’ account. 86. The Government did not dispute the details of the calculations submitted by the applicant, but argued that her claims were not supported by any documents.", "87. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI). 88. The Court observes that in July 2004 the applicant gave authority to the lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre to represent her interests in the proceedings before the European Court of Human Rights and that these lawyers acted as the applicant’s representatives throughout the proceedings.", "The applicant also produced invoices from translators. The Court is therefore satisfied that the applicant’s claims in this part were substantiated. 89. The Court further notes that this case was not particularly complex, but nevertheless required a certain amount of research work. Having regard to the amount of research and preparation claimed by the applicant’s representatives, the Court does not find these claims excessive.", "90. In these circumstances, the Court awards the applicant the overall amount of EUR 2,400, together with any tax that may be chargeable to the applicant. The amount awarded in respect of costs and expenses shall be payable to the representatives directly. C. Default interest 91. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection concerning the exhaustion of domestic remedies and rejects it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 2 of the Convention as regards the death of the applicant’s husband; 4. Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s husband; 5.", "Holds that there has been a violation of Article 13, in conjunction with Article 2 of the Convention; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 35,000 (thirty-five thousand euros), to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (ii) EUR 2,400 (two thousand four hundred euros) in respect of costs and expenses, to be converted into United Kingdom pounds sterling at the rate applicable at the date of settlement and paid into the applicant’s representatives’ bank account in the United Kingdom; (iii) any tax, including value-added tax, that may be chargeable to the applicant on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF POPARA v. CROATIA (Applications no. 11072/03) JUDGMENT STRASBOURG 15 March 2007 FINAL 15/06/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Popara v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 20 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11072/03) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Mrs Marija Popara and Mrs Željka Popara (“the applicants”), on 15 March 2003 2. The applicants were represented by Mr M. Mihočević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Štefica Stažnik.", "3. On 8 December 2004 the Court decided to communicate the complaint concerning the applicants' right of 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 applications at the same time as their admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants were born in 1976 and 1979 respectively and live in Karlovac. 5. In 1991 business premises owned by D.P., the applicants' late father, were blown up by unknown perpetrators. Some time later, his car was also damaged beyond repair by an explosive device. 6.", "D.P. instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) in 1994, seeking compensation from the State. He relied on section 180 of the Civil Obligations Act (Zakon o obveznim odnosima). 7. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act, which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation.", "The new legislation was to be enacted within six months. 8. Pursuant to the above legislation, the Zagreb Municipal Court stayed D.P. 's proceedings on 5 February 1998. On his appeal, on 31 August 1999 the Zagreb County Court (Županijski sud u Zagrebu) quashed that decision and remitted the case.", "9. D.P. died on 25 February 2000. 10. The Municipal Court again issued a decision staying the proceedings on 16 July 2001.", "11. The applicants and their late mother, acting as D.P. 's heirs, filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 7 May 2002, complaining about the length of the proceedings and the lack of access to a court. They relied on section 63 of the 2002 Constitutional Court Act and Article 29 § 1 of the Constitution. 12.", "On 28 April 2004 the Constitutional Court accepted the applicants' complaint, ordered the Zagreb Municipal Court to bring the proceedings to an end within six months and awarded each of the complainants the amount of 4,400 Croatian kunas (HRK) wich is approximately euros (EUR) 600. 13. The proceedings before the Zagreb Municipal Court were resumed on 18 May 2004 when it declared the applicants' action inadmissible finding that it no longer had jurisdiction in the matter. The decision was quashed by the Zagreb County Court on 30 December 2004. 14.", "The proceedings are currently pending before the Zagreb Municipal Court. II. RELEVANT DOMESTIC LAW 15. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows: Section 180(1) “Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 16.", "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.” 17. 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.” 18. The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) 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. 19.", "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. 20.", "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.” 21. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 63 “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” Section 23 provides that, in proceedings before the Constitutional Court, each participant shall pay its own costs unless the court decides otherwise.", "The term “costs of proceedings” does not include the court fees since no such fees are payable in the proceedings before the Constitutional Court. Under the case-law of the Constitutional Court the issue of the recovery of the costs of proceedings is to be decided by that court if a participant makes a request to that end. For example, in case no. U-III-1384/2000 of 30 November 2000 the Constitutional Court denied the complainant's request for recovery of costs since the constitutional complaint had been dismissed. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicants complained that Parliament's enactment of the 1996 Amendment violated their right of access to a court as provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...” A. Admissibility 1. The parties' arguments 23. The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since on 31 July 2003 the Liability Act entered into force, which provided that the proceedings stayed under the 1996 Amendment were to be resumed. Moreover, the Constitutional Court had accepted the applicants' constitutional complaint, found a violation of their constitutional right of access to a court, and awarded them compensation.", "The violation complained of had, therefore, been remedied before the domestic authorities and the applicants had lost their victim status. 24. The applicants submitted that, in spite of the Constitutional Court's decision of 28 April 2004, they were still “victims” within the meaning of Article 34 of the Convention. They argued that the amount of compensation was insufficient and significantly lower than amounts awarded by the Court in similar cases (see Kutić v. Croatia, no. 48778/99, § 39, ECHR 2002-II).", "2. The Court's assessment 25. The Court recalls that in the Tomašić case (see Tomašić v. Croatia, no. 21753/02, §§ 26-36, 19 October 2006), the amount of awarded compensation, i.e. approximately 15% of what it generally awards in similar Croatian cases, was found to be manifestly unreasonable in the circumstances of that case.", "The applicants having received the same amount in the present case, the Court observes that it does not differ in any way from the Tomašić case and finds no reason to depart from its conclusion therein. Accordingly, the applicants can still claim to be “victims” of a breach of their right of access to a court, and the Government's objection must therefore be dismissed. 26. 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 27. 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, no. 48778/99, ECHR 2002 - II and Multiplex v. Croatia, no.", "58112/00, 10 July 2003). 28. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 29. The applicants also complained that they had no effective remedy at their disposal as guaranteed by Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 30. Having regard to the finding relating to Article 6 § 1 (see paragraph 28 above), the Court considers that it is not necessary to examine the complaint under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, for example, Dražić v. Croatia, no. 11044/03, § 43, 6 October 2005). III.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 31. The applicants also complained that their property rights had been violated by destruction of their father's premises. 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.” 32. The Court firstly has to ascertain whether, and to what extent, it is competent ratione temporis to deal with this complaint. It reiterates that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000).", "33. The Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” Accordingly, the Court is not competent to examine the present application in so far as it refers to facts occurring before the date of the ratification of the Convention. Finding to the contrary would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law. At the same time it would render Croatia's declaration recognising the Court's competence to receive individual applications nugatory (see Kadikis v. Latvia, cited above, and the Stamulakatos v. Greece, judgment of 30 September 1993, Series A no. 271, p. 14, § 33).", "34. The Court considers that the act of destruction of the applicants' late father's property was an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention. Furthermore, as to the proceedings concerning the applicants' claim for damages, in so far as they do fall within the Court's competence ratione temporis, the applicants did not make any separate complaints under Article 1 of Protocol No. 1 (see Kresović v. Croatia, (dec.), no. 75545/01, 9 July 2002).", "It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36.", "The applicants claimed HRK 2,093,493 in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage. 37. The Government deemed the amounts claimed by the applicants excessive. 38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "39. As to the non-pecuniary damage sought, the Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the Constitutional Court and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, §§ 139-140). 40. The Court recalls that each applicant was awarded EUR 600 by the Constitutional Court.", "Having regard to the circumstances of the present case, the characteristics of the constitutional complaint as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicants should be awarded jointly EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 41. The applicants did not make any claims for costs and expenses within the time-limit fixed. Therefore, the Court is not able to award the applicants any sum on that account.", "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 complaint concerning the applicants' right of access to a court admissible and the remainder of the applications inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 15 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MIKOLAJ AND MIKOLAJOVÁ v. SLOVAKIA (Application no. 68561/01) JUDGMENT STRASBOURG 29 November 2005 FINAL 29/02/2006 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 Mikolaj and Mikolajová 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 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. 68561/01) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Rudolf Mikolaj (“the first applicant”), on 17 February 2001. On 28 November 2002 new complaints were submitted by both the first applicant and his wife, Mrs Anna Mikolajová (the second applicant). 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs A. Poláčková.", "3. On 22 October 2004 the Court decided to communicate the complaint concerning the length of the proceedings brought in 1991 to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants live in Žilina. The first applicant was born in 1939 and the second applicant was born in 1944. A. Proceedings concerning the first applicant’s claim of 1991 5. The first applicant participated in a tender concerning the resolution of a technical problem within a State-owned company.", "The tender never resulted in a contract as the company went into liquidation. 6. On 20 November 1991 the first applicant claimed compensation (the equivalent of approximately 200 euros) from the company. He later indicated several Ministries as additional defendants. 7.", "On 23 April 1992 the Ministry of Construction and Works informed the District Court in Žilina that the defendant company had ceased to exist and that it had taken over the company’s obligations. The decision concerning the transfer of liabilities of the company was later quashed. 8. On 26 August 1992 the first applicant extended his action to comprise also the above Ministry as defendant. He later indicated three other Ministries as defendants as it was unclear which authority was liable for the original defendant’s obligations.", "On 8 December 1992 the first applicant requested that the District Court should issue a payment order. 9. On 20 February 1995 the Žilina District Court decided to deal separately with the claim to the extent that it concerned three Ministries. At the applicant’s request it discontinued the proceedings in respect of the other defendants including the State-owned company which, in the meantime, had ceased to exist. 10.", "On 7 April 1995 the first applicant sued also the Ministry of Economy in the context of the proceedings. In October 1995 and in January 1996 representatives of that Ministry informed the court that the Ministry of Economy lacked standing in the case. 11. Hearings were held on 28 February 1996 and on 2 September 1996. On 18 July 1996 the applicant requested a change in the defendants.", "He amended his claim on 3 September 1996. 12. On 5 February 1998 the District Court asked the first applicant to specify which authorities were defendants in the case. The applicant replied on 19 February 1998. On 18 March 1998 he submitted further information.", "13. On 31 March 1998 the District Court joined to the proceedings the Ministry of Economy and the Ministry of Construction and Public Works as authorities representing the defendant State. One of the Ministries appealed on 27 April 1998. On 1 April 1998 the District Court discontinued the proceedings in respect of two different authorities. 14.", "On 28 October 1998 the Banská Bystrica Regional Court quashed the District Court’s decision of 31 March 1998. 15. On 20 July 1999 the first applicant made a submission to the District Court. 16. On 1 August 2000, in accordance with the instruction of the Regional Court, the District Court invited the applicant to specify which authority acted on behalf of the Slovak Republic in the proceedings and to specify the sum claimed.", "The first applicant replied on 10 August 2000. 17. On 17 October 2000 the District Court asked the defendant for comments on the action. The defendant replied on 30 October 2000. Subsequently the District Court unsuccessfully attempted to obtain documents concerning the work for which the applicant claimed compensation.", "18. On 6 June 2001 the District Court dismissed the first applicant’s claim. The court found that the State-owned company which had sought the tenders had been liquidated without any successor by a final decision of 31 March 1992. 19. On 27 July 2001 the applicant appealed.", "The file was transmitted to the appellate court on 11 October 2001. 20. On 5 March 2002 the Žilina Regional Court upheld the first instance judgment which became final on 20 July 2002. 21. In the meantime, on 5 April 2002, the applicant requested that the court fee should be returned to him.", "That submission was considered as an appeal against the decision ordering the applicant to pay the fee for the appellate proceedings. The Regional Court in Žilina rejected the appeal, on 8 July 2002, as having been filed out of time. B. Other civil proceedings 22. On 28 November 2002 the applicants extended the application with reference to the facts described below.", "23. The first applicant has been involved in (i) proceedings concerning the validity of transfer of ownership which were brought on 20 January 2001 and which are pending before the Žilina District Court and (ii) proceedings concerning an estate which, at the moment when the complaint was filed, had been pending before the Žilina District Court since 1997. Following the appellate court’s decision given on 11 October 2004, the latter set of proceedings is now again pending before the Žilina District Court. 24. Both applicants have been plaintiffs in proceedings concerning the validity of a purchase contract.", "The proceedings were brought on 27 January 2000 and the first instance court gave its decision on 11 November 2004. 25. On 23 April 2001 the applicants brought proceedings concerning the right of lease. The proceedings are pending before the Žilina District Court which is to decide on the case at first instance. C. Constitutional proceedings 26.", "On 16 August 2000 the first applicant complained to the Constitutional Court about the length of the proceedings concerning his action of 1991. On 16 November 2000 the Constitutional Court rejected the petition on the ground that the first applicant had failed to appoint a lawyer to represent him in the constitutional proceedings as required by the Constitutional Court Act. 27. As they considered the length of the various sets of proceedings mentioned in point B. above to be excessive, the first applicant or the second applicant sought redress before the Constitutional Court by complaints lodged in June 2002. The applicants were invited to lodge their submissions in accordance with the statutory requirements and, in particular, to appoint a lawyer to represent them in the proceedings as required by the Constitutional Court Act.", "The applicants replied that the above requirement was discriminatory and contrary to the Constitution. 28. By three decisions delivered on 20 August 2002 and by another two decisions delivered on 23 October 2002 the Constitutional Court rejected the applicants’ complaints as falling short of the procedural requirements. The decisions stated, inter alia, that the applicants had not appointed a lawyer to represent them before the Constitutional Court. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 29. 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. 30. Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated. According to its case-law under 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 were violated. 31. 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 the event 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 the person whose constitutional rights have 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). 32. The implementation of the amended Article 127 of the Constitution is set out in more detail in sections 49 to 56 of Law no. 38/1993 (the Constitutional Court Act), as amended.", "The relevant amendments came into force on 20 March 2002. 33. 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).", "34. The Government submitted to the Court nine decisions given by the Constitutional Court between March and September 2002. In them the Constitutional Court decided on complaints under Article 127 of the Constitution about the length of proceedings which had been filed between 7 January 2002 and 18 February 2002. The complaints concerned proceedings before ordinary courts which had been brought prior to 1 January 2002. All those proceedings were pending before the first instance court at the moment when the complaint under Article 127 of the Constitution was filed.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35. The applicants complained that (i) the length of the above proceedings before the ordinary courts was excessive and (ii) that their right to defend themselves in person was violated in the proceedings before the Constitutional Court as it did not allow them to act before it without the assistance of a lawyer. They relied on Article 6 § 1 of the Convention which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1. As regards the right of access to the Constitutional Court 36.", "The Court notes that in their complaints to the Constitutional Court the applicants exclusively complained about the length of the proceedings before the ordinary courts. The outcome of the constitutional proceedings complained was not, therefore, directly decisive for the applicants’ civil rights and obligations (see Süßmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 41). 37. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 2.", "As regards the length of the proceedings a) Proceedings concerning the first applicant’s action of 1991 38. The Government contended that the first applicant had not exhausted domestic remedies as he had not filed, in accordance with the applicable requirements, a complaint under Article 127 of the Constitution as operative since 1 January 2002. 39. The first applicant contended that that the first instance court had decided on his claim and that he had filed his complaint to the Court prior to 1 January 2002 when the new remedy under Article 127 became available. Furthermore, the sums of just satisfaction usually awarded by the Constitutional Court were excessively low.", "40. The Court notes that 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. Unlike in the cases on which the Government relied in their observations, the proceedings in issue were no longer pending before the court of first instance when the relevant amendment to the Constitution took effect. The Court is therefore not satisfied that the applicant could successfully complain about the overall length of the proceedings brought in 1991 under Article 127 of the Constitution, as operative since 1 January 2002. 41.", "The Court further notes that the relevant part of the application was introduced on 17 February 2001. At that time it had been its general practice to assess whether domestic remedies had been exhausted with reference to the date on which the application was lodged with it. The Court decided to make an exception to this rule in respect of cases against Slovakia which, as the present one, were submitted to it prior to 1 January 2002 in the Andrášik and Others v. Slovakia decision referred to above. That decision was adopted on 22 October 2002, that is at a time when a final decision had already been given in the proceedings brought by the first applicant. 42.", "In the above circumstances, the Government’s objection relating to non-exhaustion of domestic remedies cannot be upheld. 43. The proceedings in issue were brought on 20 November 1991. However, 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. The period in question ended on 5 March 2002.", "It thus lasted 10 years less 13 days for two levels of jurisdiction. 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.", "b) The other sets of proceedings 45. The applicants filed their complaint about the length of the other sets of proceedings set out in paragraphs 23-25 above on 28 November 2002. At that time the proceedings at issue were pending before the courts of first instance. Having regard to the practice of the Constitutional Court and its decision in the case of Andrášik and Others referred to above, the applicants were required, for the purpose of Article 35 of the Convention, to use the constitutional remedy prior to submitting this complaint to the Court. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "B. Merits 46. The Government admitted that there had been several periods of inactivity imputable to domestic courts in the proceedings concerning the first applicant’s action of 1991. They further pointed out that the overall length of the proceedings was also due to the fact that the first applicant had frequently changed the defendants as well as the amount of the sum claimed. 47.", "The applicant contended that after the State owned company which had owed money to him had ceased to exist, he had been obliged to sue the State represented by an authority liable for the debt. The modifications of defendants had been caused by frequent transfers of powers between the governmental authorities in Slovakia. 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 accepts that the length of the proceedings was partly due to frequent changes in defendants resulting from the fact that the first applicant had difficulties in identifying the authority which had taken over the obligations of the debtor company. Having regard to its case-law on the subject, the Court considers, nevertheless, that in the instant case the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 as a result of the length of the proceedings brought by the first applicant in 1991. 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.” 52. The applicants submitted claims under Article 41 in respect of all proceedings set out above.", "53. The Court found a violation of Article 6 § 1 of the Convention in respect of the first applicant’s complaint about the length of proceedings brought in 1991, and it declared the remainder of the application inadmissible. It can therefore take into account only the first applicant’s claims which relate to those proceedings. A. Damage 54.", "The first applicant claimed SKK 93,080 in respect of non-pecuniary damage. 55. The Government contested the claim. 56. The Court considers it appropriate that it should award the equivalent of the sum claimed, namely EUR 2,400.", "B. Costs and expenses 57. The first applicant also claimed SKK 303.20 for the costs and expenses incurred in respect of the proceedings brought in 1991. 58. The Government did not contest the claim.", "59. The Court awards the first applicant EUR 10 under this head which corresponds approximately to the sum claimed. 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 first applicant’s complaint concerning the length of the proceedings brought in 1991 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as a result of the length of the proceedings concerning the first applicant’s action of 1991; 3. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 10 (ten 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 first applicant’s claims 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" ]

[ "FIRST SECTION CASE OF ISTITUTO NAZIONALE CASE SRL v. ITALY (Application no. 41479/98) JUDGMENT (Striking out) STRASBOURG 6 November 2003 FINAL 06/02/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Istituto Nazionale Case Srl v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrG.", "Bonello,MrE. Levits,MrA. Kovler,MrV. Zagrebelsky,MrsE. Steiner,MrK.", "Hajiyev, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 16 October 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41479/98) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian company, Istituto Nazionale Case Srl (“the applicant”), on 26 February 1998. 2. The applicant was represented by Mr E. Baldi, a lawyer practising in Naples.", "The Italian Government (“the Government”) were represented by their successive Agents, respectively, Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. The applicant complained under Article 1 of Protocol No. 1 to the Convention that it had been unable to recover possession of its flat within a reasonable time.", "Invoking Article 6 § 1 of the Convention, the applicant further complained about the length of the eviction proceedings. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed First Section (Rule 52 § 1). 7. By a decision of 7 May 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The applicant is an Italian limited company, settled in Naples. 9. The applicant is the owner of a flat in Naples, which it had let to B.L. On an unspecified date, the applicant informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date. 10.", "In a writ served on the tenant on 9 March 1984, the applicant reiterated its intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. The Magistrate declared that it was not competent to examine the matter, following which it was transferred to the Naples Tribunal. 11. By a decision of 8 July 1988, the Tribunal confirmed that the rent contract had expired on 31 December 1983. It ordered the tenant to vacate the premises by 28 June 1989.", "12. On 4 February 1990, the applicant served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 19 February 1991 13. On 12 November 1990, the applicant once more required the tenant to vacate the premises. 14. Between 19 February 1991 and 9 October 1997, the bailiff made twenty-eight attempts to recover possession.", "Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 15. On an unspecified date in September 1998, the applicant recovered possession of the flat. THE LAW 16. By letter of 15 May 2002, the Court informed the applicant of the admissibility decision and requested it to submit, by 15 July 2002, any additional evidence or written observations on the case that it wished to put before the Court.", "In the same letter, the applicant was also asked to submit its claims for just satisfaction and to inform the Court of its position on a friendly settlement of the case. The applicant did not reply. 17. By letter of 25 July 2002, the Court requested the applicant to submit, by 22 August 2002, its observations on the proposal for a friendly settlement formulated by the Government. In the same letter, the applicant was again asked to submit its claims for just satisfaction.", "The applicant did not reply. 18. By registered letter of 25 July 2003, sent also by fax, the Court informed the applicant that the case was going to be examined in the near future and warned it that its failure to reply to the letters of 15 May and 25 July 2002, might lead to the application being struck out of the Court's list of cases. The applicant received the fax. On 1 August 2003, it received the registered letter.", "However, the applicant did not reply. 19. In these circumstances, having regard to Article 37 § 1 (a) of the Convention, the Court considers that the applicant does not intend to pursue the petition. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the application. 20.", "Accordingly, the case should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the case out of the list. Done in English, and notified in writing on 6 November 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenPeer Lorenzen Deputy RegistrarPresident" ]

[ "GRAND CHAMBER CASE OF MOREIRA FERREIRA v. PORTUGAL (No. 2) (Application no. 19867/12) JUDGMENT STRASBOURG 11 July 2017 This judgment is final but it may be subject to editorial revision. MOREIRA FERREIRA v. PORTUGAL (No. 2) JUDGMENT1 In the case of Moreira Ferreira v. Portugal (no.", "2), The European Court of Human Rights (Grand Chamber), sitting as a Grand Chamber composed of: Guido Raimondi, president,Işıl Karakaş,Angelika Nußberger,Luis López Guerra,András Sajó,Mirjana Lazarova Trajkovska,Nona Tsotsoria,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Helen Keller,Paul Mahoney,Krzysztof Wojtyczek,Faris Vehabović,Egidijus Kūris,Jon Fridrik Kjølbro,Síofra O’Leary,Marko Bošnjak, judges,and Françoise Elens-Passos, Deputy Registrar, Having deliberated in private on 1 June 2016 and 5 April 2017, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 19867/12) 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 Francelina Moreira Ferreira (“the applicant”), on 30 March 2012. 2.", "The applicant, who had been granted legal aid, was represented by Mr J.J. F. Alves, a lawyer practising in Matosinhos. The Portuguese Government (“the Government”) were represented by their Agent, Ms Maria de Fátima da Graça Carvalho. 3. Relying in particular on Articles 6 and 46 of the Convention, the applicant complained of the dismissal of her application for a review of a criminal judgment delivered against her. 4.", "The application was assigned to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 April 2014 the Section President decided, pursuant to Rule 54 § 2 (b), to give notice of the aforementioned complaints to the respondent Government. The remainder of the application was declared inadmissible in accordance with Rule 54 § 3. 5. Following a change in the composition of the Sections of the Court (Rule 25 § 1), the case was assigned to the Fourth Section (Rule 52 § 1).", "6. On 12 January 2016 a Chamber of that Section, composed of András Sajó, President, Vincent A. De Gaetano, Boštjan M. Zupančič, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, judges, and Fatoş Aracı, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected (Article 30 of the Convention and Rule 72). 7. The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.", "8. The applicant and the Government each filed written observations on the admissibility and the merits of the case. 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 1 June 2016 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsM.", "de Fátima da Graça Carvalho, Agent,MrJ. Conde Correia,MsA. Garcia Marques, Advisers; (b) for the applicantMrJ.J.F. Alves, Counsel. The Court heard addresses by Ms da Graça Carvalho and Mr Alves, and also their replies to questions put by the judges.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1961 and lives in Matosinhos. A. Factual background 11.", "Following an altercation with other persons, the applicant was prosecuted by the public prosecutor at the Matosinhos District Court for threatening conduct. An expert report was produced during the investigation, stating that the applicant had limited intellectual and cognitive capacities but that she should be held criminally responsible for her acts. 12. In a judgment of 23 March 2007 the Matosinhos District Court dismissed the applicant’s defence of diminished criminal responsibility and sentenced her to 320 day-fines, amounting to a total of 640 euros (EUR), for threatening and insulting conduct, as well as ordering her to pay damages to the victims. 13.", "On 13 April 2007 the applicant appealed to the Oporto Court of Appeal (“the Court of Appeal”) against the judgment. She repeated that she had been unaware of the unlawfulness of her acts and sought an acknowledgment of her lack of criminal responsibility owing to the psychiatric disorders from which she claimed to suffer. Consequently, she asked for a fresh assessment of the facts and the opportunity to state her case at a hearing. 14. On 12 December 2007 the Court of Appeal held a hearing attended by the public prosecutor and counsel for the applicant.", "However, no examination of the applicant herself took place. 15. In a final judgment of 19 December 2007 the Court of Appeal upheld the applicant’s conviction for threatening and insulting conduct, but reduced the sentence to 265 day-fines, amounting to a total of EUR 530. It held that there was no need for a fresh assessment of the facts because the applicant had not succeeded in challenging the validity of the assessment conducted by the court of first instance. 16.", "The applicant paid the fine in several instalments. 17. During the hearing before the Court it was pointed out that in January 2016, five years after the fine had been paid in full, the entry concerning the applicant’s conviction had been deleted from her criminal record. B. Application no.", "19808/08 and the judgment delivered by the Court on 5 July 2011 18. On 15 April 2008 the applicant lodged an application with the Court complaining that she had not been heard in person by the Court of Appeal, and that this violated Article 6 § 1 of the Convention. 19. In a judgment of 5 July 2011 the Court declared admissible the complaint under Article 6 § 1 of the Convention and found a violation of that provision, holding as follows: “... 33. The Court notes that in the present case the Court of Appeal was invited to determine several questions relating to the facts of the case and to the person of the applicant.", "As before the court of first instance, the applicant raised, in particular, the question whether her criminal responsibility should have been deemed diminished, which might have had a major impact on the determination of the sentence. 34. The Court takes the view that that question could not have been settled by the Court of Appeal without a direct assessment of the applicant’s personal testimony, particularly since the judgment of the Matosinhos District Court had departed slightly from the conclusions of the psychiatric report without setting out the reasons for such a departure, as required under domestic law ... The Court of Appeal’s re-examination of that question should therefore have comprised a full rehearing of the applicant ... 35. Those factors are sufficient for the Court to conclude that in the instant case a public hearing should have been held before the appellate court.", "There has therefore been a violation of Article 6 § 1 of the Convention.” 20. As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court stated the following: “41. The Court firstly considers that when, as in the instant case, an individual has been convicted after proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. In that regard, it notes that Article 449 of the Portuguese Code of Criminal Procedure permits the reopening of proceedings at domestic level where the Court has found a violation of a person’s fundamental rights and freedoms. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case (see Öcalan v. Turkey [GC], no.", "46221/99, § 210, ECHR 2005-IV, and Panasenko v. Portugal, no. 10418/03, § 78, 22 July 2008). In the present case, the only point at issue is the fact that the applicant was not given a hearing by the Court of Appeal. 42. Secondly, the Court notes that in the present case the only applicable basis for an award of just satisfaction lies in the fact that the applicant was not afforded the safeguards of Article 6.", "In that regard, it does not discern any causal link between the violation found and the pecuniary damage alleged, and rejects this claim. The Court cannot speculate as to what the outcome of the proceedings before the Court of Appeal would have been if it had examined the applicant at a public hearing (see Igual Coll v. Spain, no. 37496/04, § 51, 10 March 2009). On the other hand, it considers it appropriate to award the applicant EUR 2,400 in respect of non-pecuniary damage.” C. Procedure before the Committee of Ministers for the execution of the judgment of 5 July 2011 21. On 5 July 2012 the Portuguese Government submitted an action plan to the Committee of Ministers concerning the execution of the Court’s judgment of 5 July 2011.", "They confirmed that the amount awarded to the applicant had been paid to her on 14 December 2011. As regards the general measures, the Government pointed out that the Prime Minister’s Office had proposed amending the Code of Criminal Procedure to allow hearings to be held in any court of appeal determining the issue of guilt or the sentence in respect of an accused person. 22. At the hearing before the Court it was pointed out that the aforementioned proposal had not been approved and had therefore not in fact been included in the final version of the revised Code of Criminal Procedure. 23.", "At the time of adoption of the present judgment no plans to reform the Code of Criminal Procedure were on the domestic authorities’ agenda. The procedure for supervising the execution of the judgment of 5 July 2011 was still pending before the Committee of Ministers. D. The applicant’s application for review 24. Concurrently, on 18 October 2011, relying on Article 449 § 1 (g) of the Code of Criminal Procedure, the applicant lodged an application for review with the Supreme Court. She submitted that the Court of Appeal’s judgment of 19 December 2007 was incompatible with the Court’s judgment of 5 July 2011.", "25. The prosecution submitted that the application should be allowed on the grounds that serious doubts could legitimately be raised about the conviction, particularly as regards the sentencing. 26. In a judgment of 21 March 2012 the Supreme Court refused to grant a review. It held that there was no cause for a review because the judgment delivered by the Court of Appeal was not incompatible with the Court’s judgment.", "It considered that the lack of a hearing for the applicant in the Court of Appeal had constituted a procedural irregularity that was not amenable to review, and held as follows: “... under domestic law, an application for review can be submitted solely in respect of judgments (in particular, convictions), and not in respect of orders concerning the conduct of proceedings, it being understood that ... ‘judgment’ denotes any judicial decision on a case or on a procedural application (see Article 156 § 2 of the Code of Civil Procedure). In the light of domestic law, however, a review of the judgment in the present case cannot be allowed on the basis invoked by the applicant, because the conviction is not incompatible with the European Court’s judgment (Article 449 § 1 (g) of the Code of Criminal Procedure). On the other hand, the procedure followed by the Court of Appeal in holding the hearing at the close of which the appeal was determined was incompatible with what the European Court has deemed vital in order to guarantee the rights of the defence. Under domestic law, where the accused is legally required to appear in court, his or her absence entails an irremediable nullity (Article 119 (c) of the Code of Criminal Procedure). However, even where a nullity is irremediable, it cannot give rise to an extraordinary application for review of the judgment ...", "Furthermore, as noted by the European Court, it is impossible to speculate about the decision which the Court of Appeal might have taken if the convicted person had been examined at the hearing which led to the decision on her appeal, and, in particular, about whether or not the sentence would have been the same. The European Court thus precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence actually imposed. In short, the conviction is not incompatible with the European Court’s binding decision, and no serious doubts arise as to its validity. For that reason, being aware that it is not always possible to secure a retrial or the reopening of proceedings under the applicable domestic law, as in the present case, the European Court decided to require the Portuguese State to compensate the applicant in respect of non-pecuniary damage, and thus to afford redress not for the unfairness of the conviction, which has not been established, but for a serious defect in the conduct of the proceedings which infringed the applicant’s defence rights ... For the above reasons, the applicant’s argument in support of her application to be granted a review is not substantiated. Consequently, the judges of the Criminal Division of the Supreme Court decide not to grant a review.” II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Application for review 27. Article 449 § 1 (g) of Law no. 48/2007 of 29 August 2007 amending the Code of Criminal Procedure established a new ground for an application for review of a final judgment. The Article in question is worded as follows: Article 449 (grounds for an application for review) “1.", "A judgment which has become final may be reviewed on the following grounds: (a) a final judgment has established that the evidence on which the conviction was based was invalid; (b) one of the judges or jurors who took part in the proceedings that led to the final judgment has been convicted with final effect of an offence linked to the performance of his or her duties; (c) the facts giving rise to the conviction are incompatible with the facts established in another judgment, where such discrepancy casts serious doubt on the validity of the conviction; (d) after delivery of the final judgment, fresh evidence has been discovered casting serious doubt on the validity of the conviction; (e) the conviction was based on unlawfully obtained evidence; (f) the Constitutional Court has declared unconstitutional one of the provisions on which the conviction was based; (g) the conviction is irreconcilable with a judgment binding on the Portuguese State that has been delivered by an international authority, or such a judgment casts serious doubt on the validity of the conviction in question. 2. For the purposes of the previous paragraph, any decision discontinuing criminal proceedings shall be treated as a judgment. 3. For the purposes of paragraph 1 (d), an application for review shall be inadmissible where its sole aim is to secure a different sentence.", "4. An application for review may be admissible even where proceedings have been discontinued, the sentence has been fully served or the time-limit for its enforcement has expired.” 28. In a judgment of 27 May 2009 (domestic proceedings no. 55/01.OTBEPS-A.S1), the Supreme Court held that the new ground, as set out in Article 449 § 1 (g) of the Code of Criminal Procedure, for review of a final judgment had to be interpreted restrictively. In the light of Recommendation No.", "R (2000) 2 of the Committee of Ministers, it held that the reopening of proceedings was necessary “where a decision of the European Court of Human Rights had concluded that a domestic judgment was contrary to the Convention or where there had been procedural errors or shortcomings of such gravity as to cast serious doubt on the decision (fortes dúvidas sobre a decisão) adopted at the close of the proceedings, and, simultaneously, where the injured party continued to suffer very serious adverse effects as a result of the national decision, those effects could not be remedied by the just satisfaction awarded by the Court and restitutio in integrum could only be achieved by means of a retrial or the reopening of the proceedings”. In a separate opinion, one of the three judges on the bench that had examined the application for review, while concurring with the decision, expressed the view that the Supreme Court’s interpretation of Article 449 § 1 (g) had been overly restrictive. The judge stated the following: “In my view, the new sub-paragraph (g) of Article 449 § 1 of the Code of Criminal Procedure has introduced a mechanism for the execution of judgments delivered by international courts and recognised by the Portuguese State as binding; where it is called upon to consider an application for review, the Supreme Court must confine itself to ascertaining whether the formal condition referred to [in Article 449 § 1 (g)] is satisfied, namely the existence of a judgment delivered by an international authority and binding on the Portuguese State that is irreconcilable with the conviction or casts serious doubt on its validity. At this stage of the proceedings, the Supreme Court’s sole task – I repeat – is to determine whether this formal condition for granting a review is present. It will be for the body conducting the review to deliver a new judgment (Articles 460 et seq.", "of the Code of Criminal Procedure) entailing the execution of the decision of the European Court of Human Rights.” 29. In the judgment in question, the Supreme Court allowed an application for the reopening of criminal proceedings in which a journalist had been convicted of a breach of judicial confidentiality (segredo de justiça), having regard to the European Court’s finding in Campos Dâmaso v. Portugal (no. 17107/05, 24 April 2008) that the conviction had infringed the applicant’s right under Article 10 of the Convention. 30. The Supreme Court has allowed three applications for review under Article 449 § 1 (g) of the Code of Criminal Procedure concerning convictions for defamation which the European Court had deemed incompatible with Article 10 of the Convention: (a) in its judgment of 23 April 2009 (domestic proceedings no.", "104/02.5TACTB-A.S1) concerning the criminal conviction of the author of a book for defamation, the Supreme Court found that the conviction was incompatible with the European Court’s judgment in Azevedo v. Portugal (no. 20620/04, 27 March 2008); (b) in its judgment of 15 November 2012 (domestic proceedings no. 23/04.0GDSCD-B.S1) concerning a conviction for defamation, the Supreme Court found that the conviction was incompatible with the European Court’s judgment in Alves da Silva v. Portugal (no. 41665/07, 20 October 2009); and (c) in its judgment of 26 March 2014 (domestic proceedings no. 5918/06.4TDPRT.P1) concerning the reopening of criminal proceedings in which the author of a book had been convicted of defamation and fined, the Supreme Court found that the conviction was incompatible with the European Court’s judgment in Sampaio e Paiva de Melo v. Portugal (no.", "33287/10, 23 July 2013). It held, in particular, that the reopening procedure was not intended to re-examine a judgment that had already been delivered but rather to secure a fresh decision following a retrial on the basis of new evidence. B. Other relevant provisions 31. The other relevant provisions of the Code of Criminal Procedure at the material time read as follows: Article 119 (irremediable nullity) “The following shall constitute grounds of irremediable nullity (nulidades insanáveis), which must be raised proprio motu at any stage of the proceedings, in addition to those provided for in other statutory provisions: (a) a breach of the statutory provisions governing the composition of the court; (b) a breach of the statutory provisions governing the role of the public prosecutor’s office during the prosecution stage; (c) the absence of the defendant or counsel for the defence in circumstances where they are required by law to appear; (d) the absence of compulsory steps in the conduct of the proceedings; (e) a breach of the rules concerning the court’s jurisdiction ...; (f) the conduct of proceedings in accordance with inappropriate procedures.” Article 122 (effects of nullity) “1.", "The act found to constitute a nullity, together with all other acts resulting from it, shall be deemed invalid. 2. The court that establishes the existence of a nullity shall determine which act is to be deemed invalid and shall order, wherever necessary and possible, that the act be repeated. Any associated costs shall be borne by the party responsible for the act that has been deemed invalid. 3.", "The court that deems an act invalid shall confirm, where possible, that the other steps in the proceedings remain valid.” Article 450 (locus standi) “A review of a judgment may be requested by: (a) the Attorney General; ... (c) the convicted person.” Article 457 (granting of a review) “1. Where a review is granted, the Supreme Court shall refer the case to the nearest possible court in the same category and with the same composition as the court that gave the decision being reviewed. 2. If the convicted person is serving a term of imprisonment or is subject to a security measure, the Supreme Court shall decide, having regard to the seriousness of the doubts concerning the conviction, whether the execution of the sentence or measure should be suspended. 3.", "If such suspension is ordered or the convicted person has not yet started serving the sentence, the Supreme Court may order a preventive measure.” Article 458 (quashing of incompatible judgments) “1. If a review is granted under Article 449 § 1 (c) on account of the existence of incompatible judgments resulting in the conviction of different individuals for the same acts, the Supreme Court shall quash the judgments, order a retrial of all the individuals concerned and remit the case to the competent court. 2. Where a retrial is held, the cases shall be joined. 3.", "The quashing of the judgment shall bring its execution to an end. The Supreme Court may, however, order preventive measures in respect of the individuals being retried.” Article 460 (retrial) “1. Once the case has been prepared for trial, a date shall be set for the hearing and the ordinary rules of procedure shall be followed. 2. If the review has been granted on the basis of Article 449 § 1 (a) or (b), individuals who have been convicted or prosecuted for acts which were decisive for the outcome of the proceedings being reopened shall not be permitted to take part in the retrial.” III.", "RECOMMENDATION No. R (2000) 2 OF THE COMMITTEE OF MINISTERS 32. In its Recommendation No. R (2000) 2, adopted on 19 January 2000 at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers stated that its practice in supervising the execution of the Court’s judgments showed that in exceptional circumstances the re-examination of a case or the reopening of proceedings had proved the most efficient, if not the only, means of achieving restitutio in integrum. It therefore invited States to introduce mechanisms for re-examining cases in which the Court had found a violation of the Convention, especially where: “(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” 33.", "The explanatory memorandum sets out more general comments on issues not explicitly addressed in the Recommendation. As regards cases corresponding to the above-mentioned criteria, it notes the following: “12. Sub-paragraph (ii) is intended to indicate ... the kind of violations in which re-examination of the case or reopening of the proceedings will be of particular importance. Examples of situations aimed at under item (a) are criminal convictions violating Article 10 because the statements characterised as criminal by the national authorities constitute legitimate exercise of the injured party’s freedom of expression or violating Article 9 because the behaviour characterised as criminal is a legitimate exercise of freedom of religion. Examples of situations aimed at under item (b) are where the injured party did not have the time and facilities to prepare his or her defence in criminal proceedings, where the conviction was based on statements extracted under torture or on material which the injured party had no possibility of verifying, or where in civil proceedings the parties were not treated with due respect for the principle of equality of arms.", "Any such shortcomings must, as appears from the text of the recommendation itself, be of such gravity that serious doubt is cast on the outcome of the domestic proceedings.” IV. LAW AND PRACTICE IN THE MEMBER STATES OF THE COUNCIL OF EUROPE 34. A comparative study of legislation and practice in forty-three member States of the Council of Europe shows that many of those States have introduced domestic machinery for requesting, on the basis of a finding by the Court of a violation of the Convention, the re-examination or reopening of a criminal case which has been the subject of a final judicial decision. 35. In particular, in a substantial number of those States the domestic Code of Criminal Procedure expressly authorises any individual in respect of whom the Court has delivered a judgment finding a violation of the Convention in a criminal case to request the re-examination or reopening of the case on the basis of that finding.", "Among the member States in question are: Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, France, Georgia, Germany, Greece, Hungary, Latvia, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Switzerland, Turkey and Ukraine. 36. In most of those States, the application for re-examination or reopening must be lodged with a court, but the level of jurisdiction varies from one State to another. In some States the individuals concerned must apply to the highest court, that is to say the Supreme Court (Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Estonia, Greece, Hungary, Lithuania, Luxembourg, Moldova, Monaco, the Netherlands, Poland, Russia, Spain and Switzerland) or the Constitutional Court (the Czech Republic). In others, the application for re-examination or reopening of the case must be lodged with the court which gave the decision complained of (Croatia, the former Yugoslav Republic of Macedonia, Slovenia, Turkey and Ukraine).", "37. In some member States the application for re-examination or reopening of the case must be submitted to non-judicial bodies such as independent administrative or quasi-judicial commissions (Iceland, Norway and the United Kingdom), the Minister of Justice (Luxembourg), the Prime Minister, who has discretion to refer the case to the Court of Criminal Appeal (Malta), or the public prosecutor (Latvia). 38. The re-examination or reopening of a case is not normally granted automatically, and the application must satisfy admissibility criteria such as compliance with deadlines and procedural formalities. In some States, national legislation lays down further conditions: for instance, applicants must provide a legal ground in support of their application (Germany, the former Yugoslav Republic of Macedonia and Turkey), rely on a new circumstance (Armenia) or present sufficient facts and evidence to substantiate the application (Italy and the former Yugoslav Republic of Macedonia).", "39. Lastly, in other member States the re-examination or reopening of criminal cases on the basis of the Court’s finding of a violation of the Convention is currently not expressly provided for in domestic law (this is the case, for example, in Albania, Denmark, Iceland, Italy, Malta, Sweden and the United Kingdom). In some of these States, however, this option is possible by means of an extensive interpretation of the general provisions on the reopening of proceedings (for example, in Albania, Denmark, Italy and Sweden). In only one member State, Liechtenstein, there is no possibility of re-examining or reopening a criminal case on the basis of a judgment delivered by the European Court of Human Rights. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 40. The applicant complained that the Supreme Court had dismissed her application for a review of the criminal judgment delivered against her. She submitted that the Supreme Court’s judgment amounted to a “denial of justice”, because that court had incorrectly interpreted and applied the relevant provisions of the Code of Criminal Procedure and the conclusions of the Court’s 2011 judgment, thus depriving her of the right to have her conviction reviewed. She alleged a violation of Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of ... any criminal charge against him ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. Admissibility 1. The parties’ submissions 41.", "The Government objected that the Court lacked jurisdiction ratione materiae to rule on the merits of the complaint raised by the applicant under Article 6 of the Convention. 42. They contended, firstly, that the new application did not include any new facts as compared with the previous one. It was solely concerned with the execution of the Court’s 2011 judgment, and therefore Article 46 prevented the Court from examining it. 43.", "The Government submitted, secondly, that Article 6 of the Convention was not applicable to the proceedings before the Supreme Court for granting a review of the Court of Appeal’s judgment of 19 December 2007 and that the present case involved no factual or legal issues liable to trigger a fresh examination by the Court under Article 6 of the Convention. In the Government’s view, the applicant could not assert any right to have a final criminal conviction reviewed. The extraordinary application for review laid down in Article 449 of the Code of Criminal Procedure differed in its nature, scope and specific features from the other ordinary remedies available in Portuguese law (appeals, in which the whole case was referred to the appellate court for adjudication, and revista appeals, which concerned points of law and, in exceptional cases, serious factual irregularities). According to the Portuguese rules on criminal procedure, the Supreme Court’s jurisdiction was limited to granting or refusing the reopening of proceedings, and any decision to allow such an application resulted in the case being remitted to the court of first instance. 44.", "In the present case, the Supreme Court had confined itself to determining, in the light of domestic law and the European Court’s conclusions, whether the conditions for reopening of proceedings were satisfied. To that end, it had compared the judgment delivered by the Court of Appeal on 19 December 2007 with that delivered by the Court on 5 July 2011 for the sole purpose of establishing whether they were compatible and whether the Court’s judgment had given rise to any serious doubts as to the validity of the applicant’s conviction. 45. The applicant, on the other hand, contended that the Supreme Court’s judgment of 21 March 2012 constituted new information and that Article 6 of the Convention had been applicable to the proceedings concerning her application for a review. 2.", "The Court’s assessment 46. In examining the admissibility of the present application, the Court must first of all ascertain whether it has jurisdiction to consider the applicant’s complaint without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention, and if so, whether the safeguards of Article 6 of the Convention were applicable to the proceedings in question. (a) Whether Article 46 of the Convention precludes the examination by the Court of the complaint under Article 6 of the Convention (i) General principles 47. The Court observes that in its judgments in Bochan v. Ukraine (no. 2) ([GC], no.", "22251/08, ECHR 2015) and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, ECHR 2009) and its decision in Egmez v. Cyprus ((dec.), no. 12214/07, §§ 48-56, 18 September 2012) it considered the issue of its jurisdiction in relation to the prerogatives of the respondent State and of the Committee of Ministers under Article 46 of the Convention. The principles set out by the Court in those judgments and that decision may be summarised as follows: (a) Findings of a violation in its judgments are essentially declaratory and, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see Verein gegen Tierfabriken Schweiz (VgT) (no.", "2), cited above, § 61). (b) The Committee of Ministers’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (ibid, § 62; see also Bochan (no. 2), cited above, § 33, and Egmez, cited above, § 51). (c) On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases, for example where the domestic authorities had carried out a fresh examination of the case by way of implementation of one of the Court’s judgments, whether by reopening the proceedings or by initiating an entirely new set of proceedings (see Egmez, cited above, § 52, and the references therein).", "(d) It transpires from the Court’s case-law that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut (see Bochan (no. 2), cited above, § 34, and, for an examination of that case-law, Egmez, cited above, § 54). The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court’s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 67). 48.", "The Court reiterates that it does not have jurisdiction to order, in particular, the reopening of proceedings (ibid., § 89). Nevertheless, as stated in Recommendation No. R (2000)2 of the Committee of Ministers, the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or the reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum, that is to say ensuring that the injured party is restored, as far as possible, to the situation which he or she enjoyed prior to the violation of the Convention. Among the cases in which the Court finds a violation, re-examination or reopening will be of particular importance in the field of criminal law, according to the explanatory memorandum to the Recommendation (see paragraphs 32 and 33 above). 49.", "It is therefore clear, as regards the reopening of proceedings, that the Court does not have jurisdiction to order such a measure. However, where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the Court may indicate that a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 89). For example, in the specific context of cases concerning the independence and impartiality of the Turkish national security courts, the Court has held that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial by an independent and impartial tribunal (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).", "50. That approach was confirmed in Öcalan v. Turkey ([GC], no. 46221/99, § 210, ECHR 2005‑IV) and Sejdovic v. Italy ([GC], no. 56581/00, ECHR 2006‑II). In the latter judgment the Court set out general principles (§§ 126 and 127) which may be summarised as follows: (a) Where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.", "However, the specific remedial measures, if any, required of a respondent State in order for it to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the Court’s judgment in that case, and with due regard to the Court’s case-law. (b) In particular, it is not for the Court to indicate how any new trial is to proceed and what form it is to take. The respondent State remains free to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded, provided that such means are compatible with the conclusions set out in the Court’s judgment and with the rights of the defence. 51. In exceptional cases, the very nature of the violation found may be such as to leave no real choice as to the measures required to remedy it, and this will prompt the Court to indicate only one such measure (see, for example, Assanidze v. Georgia [GC], no.", "71503/01, §§ 202 and 203, ECHR 2004‑II, and Del Río Prada v. Spain [GC], no. 42750/09, §§ 138 and 139, ECHR 2013). On the other hand, in some of its judgments the Court has itself explicitly ruled out the reopening, following a finding of a violation of Article 6 of the Convention, of proceedings concluded by final judicial decisions (see, for example, Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 66, 30 November 2010). (ii) Application of the above principles in the present case 52.", "The aforementioned general principles indicate that a finding by the Court of a violation of Article 6 of the Convention does not automatically require the reopening of the domestic criminal proceedings. Nevertheless, this is, in principle, an appropriate, and often the most appropriate, way of putting an end to the violation and affording redress for its effects. 53. This position is supported by the wide range of remedies in Europe enabling individuals to apply, following a finding by the Court of a violation of the Convention, for the reopening of a criminal case which has been concluded by a final judgment. In that connection, the Court notes that there is no uniform approach among the Contracting States as regards the right to apply for the reopening of proceedings that have been closed.", "It also observes that in most of those States the reopening of proceedings is not automatic and is subject to admissibility criteria, whose observance is supervised by the domestic courts, which have a broader margin of appreciation in that sphere (see paragraphs 34 et seq. above). 54. In the instant case, the Court notes that although the proceedings adjudicated by the Supreme Court incontrovertibly concerned the execution of the Court’s 2011 judgment, they were new in relation to the domestic proceedings forming the subject of that judgment, and were subsequent to them. As for the applicant’s complaint, the Court notes that it relates to the reasons given by the Supreme Court for dismissing the application for review.", "That being so, the question whether the procedure for considering the application for review was compatible with the fair-trial standards deriving from Article 6 of the Convention can be examined separately from the aspects relating to the execution of the judgment delivered by the Court in 2011 (see, mutatis mutandis, Bochan (no. 2), cited above, § 37). 55. The Court thus notes that in examining the application for review, the Supreme Court dealt with a new issue, that is to say the validity of the applicant’s conviction in the light of the finding of a violation of the right to a fair trial. In rejecting the applicant’s argument that her conviction was incompatible with the Court’s 2011 judgment, the Supreme Court carried out its own interpretation of the Court’s judgment, finding that the Court’s conclusions were in fact compatible with the judgment of the Court of Appeal.", "It accordingly ruled that the argument put forward in support of the application for review, based on Article 449 § 1 (g) – an Article which the Court had expressly mentioned as permitting the reopening of the proceedings – was unsubstantiated. 56. In the light of the foregoing, the Court considers that the alleged lack of fairness of the procedure followed in examining the application for review, and more specifically the errors which the applicant claimed had vitiated the reasoning of the Supreme Court, constitute new information in relation to the Court’s previous judgment. 57. The Court further notes that a supervision procedure in respect of the execution of the judgment is still pending before the Committee of Ministers (see paragraph 23 above), although that does not prevent the Court from considering a new application in so far as it includes new aspects which were not determined in the initial judgment.", "58. The Court therefore finds that Article 46 of the Convention does not preclude its examination of the new complaint under Article 6 of the Convention. 59. Having concluded that it has jurisdiction to examine the applicant’s complaint, the Court will now consider whether Article 6 of the Convention applies to the proceedings in question. (b) Whether the applicant’s new complaint is compatible ratione materiae with Article 6 § 1 of the Convention (i) General principles 60.", "The Court reiterates that in Bochan (no. 2) (cited above) it considered the issue of the applicability of Article 6 to remedies concerning the reopening of civil proceedings which had been concluded by final judicial decisions. The principles set out by the Court in that case may be summarised as follows: (a) According to long-standing and established case-law, the Convention does not guarantee a right to have a terminated case reopened. Extraordinary remedies by which the reopening of terminated judicial proceedings may be sought do not normally involve the determination of “civil rights and obligations” or of “any criminal charge” and therefore Article 6 is deemed inapplicable to them. This approach has also been followed in cases where the reopening of terminated domestic judicial proceedings has been sought on the ground of a finding by the Court of a violation of the Convention (ibid., §§ 44‑45, with the references therein).", "(b) However, should an extraordinary remedy lead automatically or in the specific circumstances to a full reconsideration of the case, Article 6 applies in the usual way to the “reconsideration” proceedings. Moreover, Article 6 has also been found to be applicable in certain instances where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings, the national characterisation of the proceedings not being regarded as decisive for the issue of applicability (ibid., §§ 46-47). (c) In sum, while Article 6 § 1 is not normally applicable to extraordinary remedies by which the reopening of terminated judicial proceedings may be sought, the nature, scope and specific features of the relevant procedure in the legal system concerned may be such as to bring the procedure within the ambit of Article 6 § 1 and of the safeguards of a fair trial which that provision affords to litigants (ibid., § 50). 61. As regards criminal proceedings, the Court has found that Article 6 is not applicable to applications for their reopening, given that a person who, having been convicted with final effect, submits such an application is not “charged with a criminal offence” within the meaning of that Article.", "Likewise, Article 6 is not applicable to a plea of nullity for the preservation of the law, brought with the aim of quashing a final conviction following a finding by the Court of a violation, as the person concerned is likewise not “charged with a criminal offence” in such proceedings (see, for example, Fischer v. Austria (dec.), no. 27569/02, ECHR 2003-VI, and Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). 62. Still in the criminal-law sphere, the Court has held that the requirements of legal certainty are not absolute.", "Considerations such as the emergence of new facts, the discovery of a fundamental defect in the previous proceedings that could affect the outcome of the case, or the need to afford redress, particularly in the context of the execution of the Court’s judgments, all militate in favour of the reopening of proceedings. Accordingly, the Court has held that the mere possibility of reopening a criminal case is prima facie compatible with the Convention (see Nikitin v. Russia, no. 50178/99, §§ 55-57, ECHR 2004‑VIII). However, it has emphasised that higher courts’ power of review should only be exercised to correct judicial errors and miscarriages of justice, and not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination.", "A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Bujniţa v. Moldova, no. 36492/02, § 20, 16 January 2007, and Bota v. Romania, no. 16382/03, §§ 33 and 34, 4 November 2008). 63. The Court has thus held that a conviction ignoring key evidence constitutes a miscarriage of criminal justice, and that leaving such errors uncorrected may seriously affect the fairness, integrity and public reputation of judicial proceedings (see Lenskaya v. Russia, no.", "28730/03, §§ 39 and 40, 29 January 2009, and Giuran v. Romania, no. 24360/04, § 39, ECHR 2011 (extracts)). Similarly, the Court has found that the upholding, after review proceedings, of a conviction which breached the right to a fair trial amounted to an error of assessment which perpetuated that breach (see Yaremenko v. Ukraine (no. 2), no. 66338/09, §§ 52-56 and 64-67, 30 April 2015).", "On the other hand, the arbitrary reopening of criminal proceedings, in particular to the detriment of a convicted person, infringes the right to a fair trial (see Savinskiy v. Ukraine, no. 6965/02, § 25, 28 February 2006; Radchikov v. Russia, no. 65582/01, § 48, 24 May 2007; and Ştefan v. Romania, no. 28319/03, § 18, 6 April 2010). 64.", "The Court has also considered other stages in criminal proceedings where the applicants were no longer “persons charged with a criminal offence” but persons “convicted” as a result of judicial decisions deemed final under domestic law. Given that “criminal charge” is an autonomous notion and having regard to the impact which the procedure for examining an appeal on points of law may have upon the determination of a criminal charge, including the possibility of correcting errors of law, the Court has found that such a procedure is covered by the safeguards of Article 6 (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 40, ECHR 2002‑VII), even where it is treated as an extraordinary remedy in domestic law and concerns a judgment against which no ordinary appeal lies. By the same token, the Court has held that the safeguards of Article 6 are applicable to criminal proceedings in which the competent court began by examining the admissibility of an application for leave to appeal with a view to having a conviction quashed (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 54, Series A no. 115).", "65. It transpires from the general principles expounded above that Article 6 of the Convention is applicable, in its criminal aspect, to criminal proceedings concerning remedies classified as extraordinary in domestic law where the domestic court is called upon to determine the charge. The Court therefore examines the issue of the applicability of Article 6 to extraordinary remedies by seeking to establish whether, during the consideration of the remedy in question, the domestic court was required to determine the criminal charge. 66. The Court emphasises that its assessment of the Bochan (no.", "2) case (cited above) focused on issues relating to the civil aspect of Article 6 of the Convention. However, there are significant differences between civil and criminal proceedings. 67. The Court considers that the rights of persons accused of or charged with a criminal offence require greater protection than the rights of parties to civil proceedings. The principles and standards applicable to criminal proceedings must therefore be laid down with particular clarity and precision.", "Lastly, whereas in civil proceedings the rights of one party may conflict with the rights of the other party, no such considerations stand in the way of measures taken in favour of persons who have been accused, charged or convicted, notwithstanding the rights which the victims of offences might seek to uphold before the domestic courts. (ii) Application of the above principles in the present case 68. In applying the above principles in the present case, the Court would emphasise that it takes into consideration the domestic law as interpreted by the courts in the respondent State. In the present case, it notes that domestic law, in particular Article 449 § 1 (g) of the Code of Criminal Procedure, provided the applicant with a remedy entailing the possibility of a review, in adversarial proceedings, of the compatibility of her conviction by the Court of Appeal with the Court’s findings in its 2011 judgment (compare Bochan (no. 2), cited above, § 54).", "69. The Court observes that the Supreme Court has no discretion in determining the grounds for a review, as those grounds are exhaustively listed in Article 449 § 1 of the Code of Criminal Procedure (see paragraph 27 above). They relate either to the emergence of new material or to breaches of substantive or procedural rules. In the latter eventuality, the Supreme Court must adjudicate on the conformity with substantive law of the decision delivered or on the lawfulness of the procedure followed, and decide whether or not the defects noted justify reopening the proceedings. In particular, in the context of the examination provided for in Article 449 § 1 (g) of the Code of Criminal Procedure, the Supreme Court’s task is to consider the conduct and the outcome of the terminated domestic proceedings in relation to the findings of the Court or of another international authority and, where appropriate, order the re-examination of the case with a view to securing a fresh determination of the criminal charge against the injured party.", "Furthermore, under Article 457 of the Code of Criminal Procedure, the Supreme Court may, if it decides to grant a review, suspend the execution of the sentence or security measure should it deem this necessary. The Court therefore notes that the legislative framework requires the Supreme Court to compare the conviction in question with the grounds on which the Court based its finding of a violation of the Convention. The examination on the basis of Article 449 § 1 (g) of the Code of Criminal Procedure is therefore likely to be decisive for the determination of a criminal charge, and in that respect has some features in common with an appeal on points of law (compare Maresti v. Croatia, no. 55759/07, §§ 25 and 28, 25 June 2009). 70.", "As regards the scrutiny performed by the Supreme Court in the present case, the Court notes that although that court’s task was to adjudicate on the application for the granting of a review, it nonetheless carried out a re-examination on the merits of a number of aspects of the disputed issue of the applicant’s absence from the hearing on her appeal and the consequences of her absence for the validity of her conviction and sentence. 71. The Supreme Court thus found that the judgment of the Court of Appeal had not been incompatible with the European Court’s judgment. It supported that finding with its own interpretation of the Court’s judgment, holding that the Court had “precluded from the outset any possibility that its decision might raise serious doubts about the conviction”. Even though it accepted that the applicant’s absence from the hearing on her appeal had infringed her defence rights, the Supreme Court ruled that the Court had fully and sufficiently remedied that defect by awarding the applicant a sum of money in respect of just satisfaction.", "Having concluded that the validity of the conviction was not subject to any serious doubts, it was bound to uphold the conviction and sentence imposed by the Court of Appeal. 72. Given the scope of the Supreme Court’s scrutiny, the Court considers that that scrutiny should be regarded as an extension of the proceedings concluded by the judgment of 19 December 2007. The Supreme Court once again focused on the determination, within the meaning of Article 6 § 1 of the Convention, of the criminal charge against the applicant. Consequently, the safeguards of Article 6 § 1 of the Convention were applicable to the proceedings before the Supreme Court.", "(c) Conclusion 73. The Government’s objection that the Court lacks jurisdiction ratione materiae to examine the merits of the complaint raised by the applicant under Article 6 of the Convention must be dismissed. 74. Furthermore, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It therefore declares the complaint admissible.", "75. The Court will now seek to establish whether the requirements of Article 6 § 1 of the Convention were complied with in the instant case. B. Merits 1. The parties’ submissions (a) The applicant 76.", "The applicant contended that the Court’s findings in its judgment of 5 July 2011 had raised serious doubts about the outcome of the domestic proceedings which had led to her conviction. 77. She submitted that by dismissing her application for review, the Supreme Court had committed a serious error in the interpretation and application of Article 449 § 1 (g) of the Code of Criminal Procedure. She maintained that her application for review should have been allowed, particularly since the prosecution had submitted that a review should be granted on the grounds that serious doubts could legitimately have been raised about her conviction, particularly as regards the sentence. (b) The Government 78.", "The Government submitted that the Supreme Court had merely compared the judgment delivered by the Court of Appeal on 19 December 2007 with the Court’s judgment in order to establish whether they were compatible and whether the latter judgment had prompted any serious doubts regarding the applicant’s conviction. 79. With reference to the Supreme Court’s case-law concerning applications for review, they observed that under Portuguese law the right to the reopening of terminated criminal proceedings was neither absolute nor automatic. 80. The Government submitted that unlike in cases concerning a violation of the right to freedom of expression in which the incompatibility of the conviction had been manifest, the Supreme Court had held that a procedural defect could not give rise, without undermining the res judicata principle, to a review of a criminal conviction unless the defect was one of exceptional gravity.", "A mere doubt as to the validity of a conviction, or a simple procedural irregularity, was therefore an insufficient ground for granting a review, and only defects which had tainted the decision to such an extent as to make it intolerable to society in general could justify reopening the proceedings. 81. That had not been the situation in the present case. The only points at issue had been the extent of the applicant’s criminal responsibility and the possible consequences in terms of sentencing. Since the fine imposed as the penalty had been paid, it had been unnecessary in substantive and procedural terms to reopen the proceedings.", "82. In conclusion, the Government stated that the procedure followed by the Supreme Court and the conclusion which it had reached had fully complied with the requirements of a fair trial. In accordance with the subsidiarity principle, the Supreme Court had had a broad margin of appreciation in interpreting and applying domestic law, and this margin had to be respected. 2. The Court’s assessment (a) General principles 83.", "The Court reiterates that in its Bochan (no. 2) judgment (cited above) it considered, under the civil head of Article 6 of the Convention, the issue of unfairness resulting from the reasoning adopted by the domestic courts. The principles set forth by the Court in that case may be summarised as follows. (a) It is not for the Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where, in exceptional cases, such errors may be said to constitute “unfairness” incompatible with Article 6 of the Convention (ibid., § 61). (b) Article 6 § 1 of the Convention does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts.", "Normally, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (ibid., § 61; see also the cases cited therein: Dulaurans v. France, no. 34553/97, §§ 33-34 and 38, 21 March 2000; Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007; and Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013; as well as the application of this case-law in more recent judgments: Pavlović and Others v. Croatia, no.", "13274/11, § 49, 2 April 2015; Yaremenko (no. 2), cited above, §§ 64‑67; and Tsanova-Gecheva v. Bulgaria, no. 43800/12, § 91, 15 September 2015). 84. The Court also reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based.", "The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see, among other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A, and Higgins and Others v. France, 19 February 1998, §§ 42-43, Reports of Judgments and Decisions 1998‑I). Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (see, mutatis mutandis, Paradiso and Campanelli v. Italy [GC], no.", "25358/12, § 210, ECHR 2017). Furthermore, the Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict. Nevertheless, for the requirements of a fair trial to be satisfied, the public, and above all the accused, must be able to understand the verdict that has been given (see Lhermitte v. Belgium [GC], no. 34238/09, §§ 66 and 67, ECHR 2016). (b) Application of the aforementioned principles in the present case 85.", "It transpires from the above-mentioned case-law that a domestic judicial decision cannot be qualified as arbitrary to the point of prejudicing the fairness of proceedings unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice”. 86. The question in the instant case is whether the reasons provided for the judicial decision given by the Supreme Court complied with the standards of the Convention. 87. The Court notes that neither Article 6 nor any other Article of the Convention lays down a general obligation to give reasons for all decisions declaring extraordinary remedies inadmissible.", "Domestic law may exempt such decisions from providing any reasons. Nevertheless, where, in its examination of an extraordinary remedy, a domestic court determines a criminal charge and gives reasons for its decision, those reasons must satisfy the requirements of Article 6 regarding the provision of reasons for judicial decisions. 88. In the present case, the Court notes that in its judgment of 21 March 2012 the Supreme Court held that in the light of Article 449 § 1 (g) of the Code of Criminal Procedure, a review of the Court of Appeal’s judgment could not be granted on the ground relied upon by the applicant. The Supreme Court considered that although the procedural irregularity noted by the European Court could have had an impact on the applicant’s sentence, it had not been serious enough for the conviction to be considered incompatible with the Court’s judgment.", "89. The Court observes that the reasons given for the judicial decision in question addressed the main arguments put forward by the applicant. According to the Supreme Court’s interpretation of Article 449 § 1 (g) of the Code of Criminal Procedure, procedural irregularities of the type found in the instant case do not give rise to any automatic right to the reopening of proceedings. 90. The Court considers that this interpretation of the applicable Portuguese law, which has the effect of limiting the situations that may give rise to the reopening of criminal proceedings that have been terminated with final effect, or at least making them subject to criteria to be assessed by the domestic courts, does not appear to be arbitrary.", "91. The Court notes that that interpretation is supported by its settled case-law to the effect that the Convention does not guarantee the right to the reopening of proceedings or to any other types of remedy by which final judicial decisions may be quashed or reviewed, and by the lack of a uniform approach among the member States as to the operational procedures of any existing reopening mechanisms. Moreover, the Court reiterates that a finding of a violation of Article 6 of the Convention does not generally create an continuing situation and does not impose on the respondent State a continuing procedural obligation (contrast Jeronovičs v. Latvia [GC], no. 44898/10, § 118, ECHR 2016). 92.", "As regards the Supreme Court’s interpretation of the judgment delivered by the Court in 2011, the Grand Chamber emphasises that in that judgment the Chamber held that a retrial or reopening of the proceedings, if requested, represented “in principle an appropriate way of redressing the violation”. A retrial or the reopening of the proceedings was thus described as an appropriate solution, but not a necessary or exclusive one. Furthermore, the use of the expression “in principle” narrows the scope of the recommendation, suggesting that in some situations a retrial or the reopening of proceedings might not be an appropriate solution (see paragraph 20 above). 93. A reading of this part of the judgment, and particularly the words “in principle” and “however” (see paragraph 20 above), indicates that the Court refrained from giving binding indications on how to execute its judgment, and instead opted to afford the State an extensive margin of manoeuvre in that sphere.", "Moreover, the Court reiterates that it cannot prejudge the outcome of the domestic courts’ assessment of whether it would be appropriate, in view of the specific circumstances of the case, to grant a retrial or the reopening of proceedings (see Davydov v. Russia, no. 18967/07, § 29, 30 October 2014). 94. Accordingly, the reopening of proceedings did not appear to be the only way to execute the Court’s judgment of 5 July 2011; at best, it represented the most desirable option, the advisability of which was a matter for assessment by the domestic courts, having regard to Portuguese law and to the particular circumstances of the case. 95.", "The Supreme Court, in its reasoning in the judgment of 21 March 2012, analysed the content of the Court’s judgment of 5 July 2011. It inferred from its reading of the latter judgment that the Court had “precluded from the outset any possibility that its decision might raise serious doubts about the conviction” (see paragraph 26 above) on account of the applicant’s absence from the hearing on her appeal. That was the Supreme Court’s own interpretation of the Court’s judgment. In view of the margin of appreciation available to the domestic authorities in the interpretation of the Court’s judgments, and in the light of the principles governing the execution of judgments (see, mutatis mutandis, Emre v. Switzerland (no. 2), no.", "5056/10, § 71, 11 October 2011), the Court considers it unnecessary to express a position on the validity of that interpretation. 96. Indeed, it is sufficient for the Court to satisfy itself that the judgment of 21 March 2012 was not arbitrary, that is to say that the judges of the Supreme Court did not distort or misrepresent the judgment delivered by the Court (compare with Bochan (no. 2), cited above, §§ 63-65, and Emre (no. 2), cited above, §§ 71-75).", "97. The Court cannot conclude that the Supreme Court’s reading of the Court’s 2011 judgment was, viewed as a whole, the result of a manifest factual or legal error leading to a “denial of justice”. 98. Having regard to the principle of subsidiarity and to the wording of the Court’s 2011 judgment, the Court considers that the Supreme Court’s refusal to reopen the proceedings as requested by the applicant was not arbitrary. The Supreme Court’s judgment of 21 March 2012 provides a sufficient indication of the grounds on which it was based.", "Those grounds fall within the domestic authorities’ margin of appreciation and did not distort the findings of the Court’s judgment. 99. The Court emphasises that the above considerations are not intended to detract from the importance of ensuring that domestic procedures are in place whereby a case may be re-examined in the light of a finding that Article 6 of the Convention has been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law (see Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX).", "100. Having regard to the foregoing, the Court concludes that there has been no violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 46 OF THE CONVENTION 101. The applicant further submitted that the Supreme Court’s dismissal of her application for review was also in breach of Article 46 of the Convention on account of a failure to implement individual measures in executing the Court’s 2011 judgment.", "102. The Court reiterates that the question of compliance by the High Contracting Parties with its judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see Bochan (no. 2), cited above, § 33). 103. Accordingly, in so far as the applicant has complained of a failure to remedy the violation of Article 6 § 1 found by the Court in its 2011 judgment, the Court does not have jurisdiction ratione materiae to deal with this complaint.", "FOR THESE REASONS, THE COURT 1. Declares, by a majority, the complaint under Article 6 of the Convention admissible and the remainder of the application inadmissible; 2. Holds, by nine votes to eight, that there has been no violation of Article 6 § 1 of the Convention. Done in French and in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 11 July 2017. Françoise Elens-PassosGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint dissenting opinion of Judges Raimondi, Nußberger, De Gaetano, Keller, Mahoney, Kjølbro and O’Leary (partial translation); (b) dissenting opinion of Judge Pinto de Albuquerque joined by Judges Karakaş, Sajó, Lazarova Trajkovska, Tsotsoria, Vehabović and Kūris; (c) dissenting opinion of Judge Kūris, joined by Judges Sajó, Tsotsoria and Vehabović; (d) dissenting opinion of Judge Bošnjak.", "G.R.F.E.P. 1MOREIRA FERREIRA v. PORTUGAL (No. 2) JUDGMENT – SEPARATE OPINIONS JOINT DISSENTING OPINION OF JUDGES RAIMONDI, NUßBERGER, DE GAETANO, KELLER, MAHONEY, KJØLBRO AND O’LEARY (Partial translation) 1. Having taken note of the majority’s opinion, we have decided not to subscribe to it, for the reasons set out below. We shall first of all examine Article 46 of the Convention in order to appraise its scope in relation to the specific facts of the case (I).", "We shall then proceed to consider Article 6 § 1 of the Convention – which is central to the applicant’s arguments – whose applicability to the reopening of criminal proceedings is, according to well‑established case-law, open to question, subject to serious qualification (II). Finally, we shall end our demonstration with a conclusion (III). I. Inadmissibility on grounds of the competence of the Committee of Ministers 2. A brief recapitulation of the facts of the case: after an initial judgment delivered by the Court in 2011 finding a violation of Article 6 § 1 of the Convention by Portugal, the applicant applied to the Supreme Court for a review of the first judgment delivered by the Oporto Court of Appeal on the grounds that it had been incompatible with the Court’s judgment. By judgment of 21 March 2012, that application was dismissed by the Supreme Court.", "On the basis of that refusal to reopen the criminal proceedings, the applicant is now lodging a second application with the Court relying on Article 46 of the Convention and alleging a new violation of Article 6 § 1 of the Convention. 3. In our view, the crucial issue raised in this case is closely bound up with the distribution of powers between the Court and the Committee of Ministers, and therefore indisputably calls for a ruling regarding the institutional legal framework of the Convention. On its facts, the application against the Portuguese State clearly lies outside the Court’s competence; it should consequently have been declared inadmissible. 4.", "The wording of the cardinal provision in this regard – namely Article 46 - provides in its paragraph 2 that “the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”. From this it unequivocally follows that the wording of Article 46 makes the Committee of Ministers, as a political organ, the sole depositary of competence in terms of executing the Court’s judgments, being explicitly authorised by the 1950 text to ensure the appropriate implementation of all judgments delivered[1]. Accordingly, and conversely, the Court is invested with no competence, of any kind, in the field of the execution of judgments[2]. The foregoing arguments set out above concerning the issue of the applicability of Article 46 of the Convention lend further support to those in the dissenting opinion of Judge Malinverni appended to the judgment in the case of Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], 30 June 2009, no.", "32772/02, ECHR 2009), to which we unreservedly subscribe. Judge Malinverni pointed out that Article 46 § 2 of the Convention conferred competence to supervise the execution of the Court’s judgments solely on the Committee of Ministers. The Court was empowered to intervene only where the presence of new facts was established. A refusal to reopen proceedings was not, in itself, a new fact. 5.", "We do not wish to overlook a number of recent developments which have affected relations between the Committee of Ministers and the Court; nor are we unaware that the Court is playing an increasingly active part in the procedure for the execution of judgments[3]. Moreover, the new wording of Article 46 as introduced in Protocol no. 14, which came into force on 1 June 2010, would tend to corroborate our interpretation. 6. The distribution of powers between the Committee of Ministers and the Court allows for one exception: in accordance with the VgT (no.", "2) judgment cited above, our Court can legitimately examine a new application relating to measures taken by the respondent State in execution of one of its judgments “if that application comprises new relevant facts affecting questions undecided by the initial judgment” (see §§ 61-63). The Court’s competence is therefore conditional upon the requirement of there being new facts. 7. However, in the light of the principles flowing from the judgements in the cases of VgT (no. 2) and Emre v. Switzerland (no.", "2) (11 October 2011, no. 5056/10) – which have drawn criticism[4] – the complaint on which the Court is called upon to adjudicate in the present case is essentially identical to that mentioned in the previous application lodged by the same applicant and leading to the Moreira Ferreira v. Portugal judgment of 5 July 2011, no. 19808/08. It is not possible, on the face of it, to identify any fact in the second application to differentiate it from the first application, on which the applicant could reasonably have based her allegations. In particular, it transpires from well-established case-law that a refusal by the domestic authorities to reopen proceedings following a judgment finding a violation of Article 6 § 1 as delivered by the Court cannot be described as a new fact (see Lyons and Others v. the United Kingdom (dec.), 8 August 2003, no.", "15227/03, ECHR 2003-IX). We venture, in view of the circumstances of the case, as to doubt whether the judgment delivered by the Portuguese Supreme Court dismissing the applicant’s request for a reopening of proceedings can be regarded as constituting any kind of new fact for the purposes of the aforementioned case-law. 8. There exists a further two-pronged argument militating against competence on the part of the Court and, most appositely, in favour of competence on the part of the Committee of Ministers. Firstly, the supervision of the execution of the Moreira Ferreira v. Portugal judgment was pending at the time of lodging of the present application, on 30 March 2012.", "And above all, the procedure for the supervision of the execution of the Court’s judgment of 5 July 2011 is currently still pending before the Committee of Ministers (the procedure was still pending at 22 May 2017). What makes it evident that the legal issue raised lies outside the supervision of the Court is that it is in the first place for the Committee of Ministers itself to bring the procedure before it to a close. II. Inadmissibility ratione materiae 9. If, despite the foregoing arguments as to the implications of Article 46 of the Convention, the Court is to be declared competent to entertain the present application, it would then be possible to proceed to a consideration of Article 6 § 1.", "Our view is that that provision cannot properly be considered as being applicable to the reopening of criminal proceedings. 10. To begin with, no right to have terminated judicial proceedings reopened is guaranteed by the Convention, whether the proceedings be civil or criminal, as the Court has on many occasions been careful to point out (see, most recently, Bochan v. Ukraine (no. 2) GC, no. 22251/08, § 44, ECHR 2015).", "More importantly, as is recognised in the survey of general principles in paragraphs 60 and 61 of the present judgment, there is also well-established case-law, likewise confirmed as recently as 2015 in the Grand Chamber judgment in Bochan (no. 2) (at §§ 44-45), to the effect that extraordinary remedies seeking to reopen terminated judicial proceedings, criminal as well as civil, normally fall outside the ambit of Article 6 § 1. As far as criminal proceedings are concerned, this is because, as paragraph 61 of the judgment expresses it, “Article 6 is not applicable to applications to reopen proceedings, given that a person who, having been convicted with final effect, submits such an application is not ‘charged with a criminal offence’ within the meaning of that Article”. However, the application of Article 6 and its guarantees of a fair trial in civil and criminal matters may exceptionally be attracted if, by virtue of the specific features of the national legal system concerned, the ruling on the extraordinary request to reopen the proceedings can be said to involve “a full reconsideration of the case” (see paragraph 60 (b) and (c) of the judgment). 11.", "In our view, the present judgment goes against the principles that it itself asserts in its paragraphs 60 and 61. It does this by assimilating (i) a ruling on the safety of the conviction after the conviction has become final (the kind of ruling which a national court typically gives in the framework of extraordinary remedies seeking the reopening of terminated criminal proceedings) with (ii) “the determination” of the original “criminal charge” against the defendant (the subject-matter of Article 6 § 1). This is to confuse two different things. It is this confusion that is at the root of the majority’s conclusion that Article 6 § 1 was applicable to the reopening proceedings brought before the Portuguese Supreme Court by the present applicant. 12.", "Thus, the judgment (in paragraph 69, final sub-paragraph) places reliance on the fact that the domestic law (namely Article 449 § 1 (g) of the Portuguese Code of Criminal Procedure – “CCP”) offered the applicant a remedy enabling the national courts to assess the compatibility of her conviction with this Court’s findings in its judgment of 2011 on the earlier application brought by her. This is, of course, true, but will always be the case when a national court is hearing an extraordinary application seeking the reopening of terminated criminal proceedings on the ground of a judgment delivered by this Court. That cannot of itself mean that the original “criminal charge” brought against the person concerned is, exceptionally, at the same time being subject to a fresh “determination” on its merits (“le bien fondé, to use the language of the French version of Article 6 § 1). Yet that is what the majority of our colleagues are suggesting in this part of their reasoning. 13.", "The majority themselves explain that “the Supreme Court’s task is to consider the conduct and the outcome of the terminated domestic proceedings in relation to the findings of the Court or another international authority and, where appropriate, order the re-examination of the case with a view to securing a fresh determination of the criminal charge against the injured party” (see paragraph 69, second sub-paragraph, of the judgment). As we understand it, what the Portuguese Supreme Court was doing when hearing the applicant’s extraordinary “application for review” under Article 449 § 1 (g) CCP was examining whether the “validity” of her conviction - to use the actual words of the Supreme Court’s ruling (see paragraph 26 of the judgment) - had been so adversely affected by the procedural defects identified by this Court in its 2011 judgment that the conviction should be overturned and a retrial by a lower court ordered. It would have been after a positive reopening decision by the Supreme Court, in the framework of the retrial so ordered, that the determination of the original criminal charge would in its turn have been revived and thus the applicability of Article 6 § 1 attracted. 14. By treating a ruling on the safety or “validity” of the conviction as being equivalent to a determination of the original criminal charge, the majority has in effect overturned, without acknowledging so, the previous long-standing corpus of case-law reviewed at length and confirmed by the Grand Chamber only two years ago in Bochan (no.", "2). Talking of “the determination”/“le bien fondé” of the conviction - that is to say, using the language that Article 6 § 1 uses in its English and French versions when referring to the ruling on the original “criminal charge”- does not suffice to remove the confusion of logic (between safety of the conviction and determination of the criminal charge) on which the majority’s conclusion is based. To use the language of Fischer v. Austria ((dec.), no. 27569/02, ECHR 2003-VI), proceedings before the Portuguese Supreme Court under Article 449 § 1 (g) CCP “are brought by a person whose conviction has become final and do not concern the ‘determination of a criminal charge’ but the question whether the conditions for granting a retrial are met”. 15.", "None of the case-law referred to in paragraphs 62 to 64 of the judgment casts doubt either on the normal rule, set out earlier in paragraphs 60 and 61, of non-applicability of Article 6 § 1 to extraordinary appeals or on the many precedents cited in Bochan (no. 2) as authority for that normal rule. 16. Thus, the Nikitin v. Russia judgment (no. 50178/99, ECHR 2004‑VIII, §§ 55-57 – cited in paragraph 62 of the judgment) addressed the quite different situation of the possible reopening, to the detriment of the accused, of criminal proceedings that have terminated with an acquittal.", "The judgment ends with the following statement (at § 60): “... according to the established case-law of the Convention organs, Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings after the reopening has been granted can be regarded as concerning the determination of a criminal charge ...” As explained above (see paragraph 13 of this separate opinion), this coincides with how we, unlike the majority, would analyse the working of the extraordinary “application for review” before the Portuguese Supreme Court in the present case. 17. Similarly to Nikitin v. Russia, the cases of Bujnita v. Moldova (no. 36492/02, 16 January 2007, § 20) and Bota v. Romania (no.", "16382/03, 4 November 2008, §§ 33-34), also cited in paragraph 62 of the judgment, concerned the unjustified reopening of criminal proceedings where the reopening court had ordered that a conviction be substituted for the original verdict of acquittal of the applicant defendant. No explanation is given by the majority as to how such cases show any departure from the normal rule governing the applicability of Article 6 § 1 to extraordinary applications in which a convicted defendant seeks the reopening of terminated criminal proceedings (whether or not on the basis of a judgment by this Court). 18. The applicant in Lenskaya v. Russia (no. 28730/03, 29 January 2009, §§ 39-40 – cited in paragraph 63 of the judgment) had allegedly been assaulted by her husband.", "She was claiming to be the victim of a violation of her own right under Article 6 § 1 (under its civil, not its criminal, head), by reason of the fact that her husband’s conviction for assault had been overturned and converted into an acquittal, thereby entailing the dismissal of her claim for compensation. The Court found it “established that the interests of justice required the reopening and the quashing of the judgment convicting the husband and awarding the wife compensation” (§ 42). Again, the issue posed (whether, as a result of her husband’s successful recourse to the extraordinary criminal review procedure in question, the applicant had been deprived of her “right to a court” under the civil head of Article 6 § 1 in connection with her civil claim for compensation for assault) is quite different from the issue of applicability of Article 6 § 1 in the present case. It is difficult to understand how the reasoning on this point in the Lenskaya judgment in any way alters the normal rule of non-applicability of Article 6 § 1 to extraordinary applications by which convicted persons are seeking the reopening of terminated criminal proceedings. This comment also applies to the judgment in Giuran v. Romania (no.", "24360/04, 21 June 2011, § 39 – extracts reported in ECHR 2011-III) (also cited in paragraph 63 of the judgment), where the relevant factual situation and Convention issue were similar to those in Lenskaya. 19. The cases of Lenskaya and Giuran confirm that “the Convention in principle permits the reopening of final judgments to correct miscarriages of justice” (see Giuran, § 39), even though “one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where courts have finally determined an issue their ruling should not be called in question” (see Giuran, § 28). In that latter connection, the precept that the abusive reopening of terminated criminal proceedings, to the detriment of a convicted as well as an acquitted person, infringes the rule-of-law requirements inherent in the right to a fair trial (notably as regards the finality of the verdict in the original trial) is illustrated not only by the cases of Nikitin, Bujnita and Bota, referred to above, but also by the cases cited at the end of paragraph 63 of the judgment (Savinkiy v. Ukraine, no. 6965/02, 28 February 2006, § 25 – where the applicant had been convicted on one of the charges against him but acquitted on others; Radchikov v. Russia, no.", "65582/01, 24 May 2007, §§ 45-53 – which concerned the quashing of an acquittal; and Stefan v. Romania, no. 28319/03, 6 April 2010, § 18 – where the applicant had been convicted, but with attenuating circumstances in his favour). These two strands of case-law develop criteria for when it may, exceptionally, be necessary to depart from the principle of legal certainty inherent in the right to a fair trial under Article 6 by reopening a terminated criminal trial in order to correct a miscarriage of justice. But what is their relevance for the applicability, or not, of Article 6 to the conduct of the “application for review” in the present case, whereby the applicant was seeking but did not obtain the reopening of the terminated criminal proceedings against her? 20.", "On the other hand, the case of Yaremenko v. Ukraine (no. 2) (no. 66338/09, 30 April 2015, §§ 52-56 and 64-67 – also cited in paragraph 63 of the judgment) does have some similarities with the present case, in that the applicant was a convicted person seeking the reopening of terminated criminal proceedings on the basis of a judgment of this Court finding a violation of Article 6 in relation to the original criminal trial. The Court, applying the principles stated a few months earlier in the Grand Chamber judgment in Bochan (no. 2), confirmed its adhesion to the normal rule of exclusion of extraordinary review procedures from the ambit of Article 6, but noted that “new proceedings, after the reopening has been ordered, can be regarded as concerning the determination of a criminal charge” (§ 56 – emphasis added).", "The Ukrainian Supreme Court, by allowing the requests for review submitted by the applicant (in part) and the prosecutor (in full), and by excluding some evidence and then carrying out its own assessment of the remaining evidence, was considered by this Court to have been engaging in a full re-examination of the applicant’s case, as in Bochan (no. 2), so as to lead to a new decision on the merits. Article 6 was held to be applicable by virtue of this fresh “determination” of the applicant’s guilt on the basis of the evidence adduced (§§ 55 and 56). One could re-phrase this finding by saying that, in accordance with the relevant domestic legislation, a retrial of the criminal case was carried out by the Ukrainian Supreme Court when adjudicating on the extraordinary appeal available to the applicant. The present judgment (at paragraph 63) is misleading insofar as it may be read as suggesting that it was “the upholding, after review proceedings, of a conviction which breached the right to a fair trial” that made Article 6 applicable.", "21. In the present case, in contrast, it cannot be said that the review proceedings before the Portuguese Supreme Court constituted a retrial of the criminal case or a fresh “determination” of the original “criminal charge” against the applicant, as in the Yaremenko (no. 2) case, where the role assigned to the reopening court was somewhat different under the applicable domestic legislative framework. We would again refer to the role of the Portuguese Supreme Court in this connection, as it is summarised in paragraph 69, second sub-paragraph, of the judgment (quoted above in paragraph 13 of this separate opinion). The “re-examination of the case with a view to arriving at a fresh determination of the criminal charge against the injured party” is to be carried out, not by the Supreme Court itself in the extraordinary “application for review” before it, but, subsequently, by another, lower court.", "The procedural guarantees of Article 6 will then be applicable to that subsequent retrial and fresh “determination of the criminal charge” against the defendant who has been successful in his or her extraordinary “application for review”. In short, the Portuguese Supreme Court may order, but does not itself carry out, the kind of “re-examination” capable of attracting the application of Article 6. 22. Finally, the reading given (in paragraph 64 of the judgment) to the cases of Meftah and Others v. France (GC, nos. 32911/96, 35237/97 and 34595/97, ECHR 2002-VII, § 40) and Morrell and Morris v. the United Kingdom (2 March 1987, Series A no.", "115, § 54) is rather strained. It has never been seriously doubted, despite the vain argument of the respondent Government in Meftah, that criminal cassation appeals of the kind found in continental legal systems and criminal appeals on points of law in common law systems are covered by Article 6, given that they are clearly normal facets (part and parcel, one might say) of the ordinary criminal process. The Meftah and Monnell and Morris judgments put courts of cassation on the same level as ordinary courts of appeal when it comes to the applicability of Article 6 (see §§ 41 and 54, respectively), although the manner of application of Article 6 to these two kinds of court depends on their special features (see §§ 41 and 56, respectively). Indeed, as early as 1970 it was stated in Delcourt v. Belgium (17 January 1970, Series A no. 11, § 25): “The Convention does not ... compel the Contracting States to set up courts of appeal or cassation.", "Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees enshrined in Article 6.” The Grand Chamber in Bochan (no. 2) (at §§ 47-49), when discussing the “extraordinary” proceedings that had been the subject of examination in San Leonard Boat Club v. Malta (no. 77562/01, ECHR 2004-IX, §§ 41-48) and Maresti v. Croatia (no. 55759/07, 25 June 2009), referred to appeals on points of law before a court of cassation in Malta and appeals on points of law in civil cases in Croatia as “ordinary appeal proceedings” for the purposes of the applicability of Article 6. 23.", "It therefore appears rather artificial, and indicative of the weakness of the reasoning on the applicability of Article 6 in the present case, to compare ordinary criminal cassation appeals and criminal appeals on points of law to the extraordinary “application for review” under Portuguese law (see, for example, paragraph 69, final sub-paragraph of the judgment). For cassation appeals and appeals on points of law in criminal matters the Court’s case-law has been clear since at least 1970 that they are to be considered a normal part of the criminal process and covered by Article 6; whereas the normal rule is that extraordinary review procedures (post res judicata) – as exemplified by the Portuguese “application for review” -, on the contrary, fall outside the ambit of Article 6. 24. Thus, when analysed, the case-law referred to in paragraphs 62 to 64 of the judgment does not lend any support to the idea that the basic rule (of the non-applicability of Article 6 § 1 to extraordinary appeals) has somehow evolved in a sense in favour of applicability whenever it can be said that the extraordinary appeal involves a ruling on the safety, the validity or the merits (le bien fondé, in French) of the conviction (as opposed to a fresh determination of the original criminal charge). 25.", "In sum, the majority’s assertion (in paragraph 69, final sub‑paragraph, of the judgment) that the Supreme Court’s examination of the applicant’s “application for review” under Article 449 § 1 (g) CCP was susceptible of “determining” the original criminal charge against her (in French: being decisive for “le bien fondé” of that charge) is hardly supported either by the content of the applicable Portuguese legislative provisions or by the previous case-law of this Court. The argument that Article 449 § 1 (g) has some traits in common with ordinary cassation appeals is not only exaggerated, but would apply generally to extraordinary review procedures in most countries empowering convicted defendants to seek the reopening of terminated criminal proceedings – thereby overturning by stealth the well-established existing case-law on this point. That is hardly a very judicial way for the Court to proceed only two years after the delivery of the Grand Chamber judgment in Bochan (no. 2). 26.", "For the foregoing reasons, we are therefore led to the conclusion that, even assuming that the Court could be regarded as having competence to entertain the application in the first place, Article 6 of the Convention was not applicable to the extraordinary criminal review proceedings at issue in the present case, with the consequence that the application should be declared inadmissible ratione materiae. III. Conclusion 27. On the basis of all the foregoing considerations, we voted against the admissibility of the complaint under Article 6 of the Convention and consequently for no violation of that provision. 28.", "The case-law in relation to applications involving Article 46 calls for some elucidation, given its ambiguous and partly contradictory character. The Committee of Ministers would not appear to have exploited the full potential of Article 46 § 3 as amended by Protocol no. 14. This updated version of the Article is aimed at clarifying the distribution of powers between the two institutions concerned (the Court and the Committee of Ministers). 29.", "What remains unchanged is that an individual application grounded on non-compliance of domestic judgments with a European Court judgment finding a violation is to be declared inadmissible ipso facto by reason of the Court’s lack of competence in this domain. At the same time, it is clear that the preeminent role of the Committee of Ministers in the sphere of executing the Court’s judgments in no way bars the Court from considering a complaint directed against the measures adopted by a respondent State to comply with a judgment delivered against it, provided that such a complaint contains new and relevant information[5]. As has been shown, the impugned request does not concern any new fact, but rather relates to the execution per se of the Court’s judgments, which matter does not, in general, lie within the competence of the Court. 30. To conclude, notwithstanding this limitation, it would appear justified for the Court to seek to exert a degree of influence in the sphere of execution of its judgments.", "The Court can legitimately do so when a new application is lodged which, from the substantive angle, involves new facts that have not yet been addressed, or else where the respondent State is found to have committed a fresh violation. On the other hand, it is equally necessary to ensure that the Court does not disperse its efforts or expand the reach of its already numerous activities. A balance must be maintained in this sphere, which necessitates compliance with the distribution of powers under the Convention. As is well recognised, the protection of human rights must be both practical and effective, that is to say neither theoretical nor illusory. 1MOREIRA FERREIRA v. PORTUGAL (No.", "2) JUDGMENT – SEPARATE OPINIONS DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE JOINED BY JUDGES KARAKAŞ, SAJÓ, LAZAROVA TRAJKOVSKA, TSOTSORIA, VEHABOVIĆ AND KŪRIS Table of Contents I. Introduction (§ 1) First Part (§§ 2-34) II. The Court’s competence to impose individual measures of redress of a Convention violation (§§ 2-18) a. The retrial clause (§§ 2-7) b. The development of other individual measures (§§ 8-18) III.", "The right to reopen a criminal case after a Court finding of a Convention violation (§§ 19-34) a. The strict standard of Committee of Ministers Recommendation (2000) 2 (§§ 19-27) b. The broad European consensus in the implementation of the Recommendation (§§ 28-34) Second Part (§§ 35-56) IV. The applicability of Article 6 of the Convention to the extraordinary appeal to reopen a criminal case (§§ 35-44) a. The majority’s evolutive interpretation of Article 6 of the Connention (§§ 35-39) b.", "The majority’s misreading of Portuguese law (§§ 40-44) V. The application of Article 6 of the Convention in the present case (§§ 45-56) a. The Supreme Court’s interpretation of Article 449 § 1 g) of the Code of Criminal Procedure (§§ 45-50) b. The Supreme Court’s interpretation of the Moreira Ferreira judgment (§§ 51-56) VI. Conclusion (§§ 57-60) I. Introduction (§ 1) 1.", "Moreira Ferreira (no. 2) concerns the competence of the European Court of Human Rights (the Court) to impose individual measures, namely the retrial, review, re-examination or reopening of criminal proceedings[6], in order to redress a violation of the European Convention on Human Rights (the Convention), and the legal force of those measures. This complicated issue is dealt with in the further complicating context of the non-execution of a Court’s judgment which included a retrial clause. In the case at hand, the retrial clause included in Moreira Ferreira[7] was not implemented by the domestic authorities in the subsequent domestic extraordinary appeal procedure (recurso extraordinário) initiated by the victim of the Convention violation. The applicant had to come to this Court a second time to plead for justice.", "Unfortunately, the majority of the Grand Chamber denied her precisely that. First Part (§§ 2-34) II. The Court’s competence to impose individual measures (§§ 2-18) a. The retrial clause (§§ 2-7) 2. While assessing whether Article 46 of the Convention precludes the examination by the Court of the complaint under Article 6 of the Convention, the majority of the Grand Chamber reiterate that the Court does not have jurisdiction to order the reopening of proceedings, but they also admit that, in certain exceptional circumstances, the reopening of the case represents an appropriate, or the most appropriate, form of redress of the Convention violation[8].", "As will be demonstrated below, this is an understatement of the Court’s rich case-law on individual measures of redress of a Convention violation. 3. The Court has affirmed time and again that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention[9]. When the respondent State’s legal order cannot provide for reparation, or can only provide for partial reparation, to be made for a declared Convention violation[10], the Court may afford just satisfaction to the injured party. The principle underlying the provision of just satisfaction for a Convention breach is that the applicant should as far as possible be put in the position he would have enjoyed had the violation not occurred (restitutio in integrum)[11], provided that such means are compatible with the conclusions set out in the Court’s judgment and with the rights of the defence[12].", "Payment of compensation is compatible with other general or individual measures necessary to put an end to the violation found by the Court[13]. 4. Yet the Court has also acknowledged that the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it, and the Court may decide to impose only one such measure, such as, for example, the return of an expropriated piece of land[14], the return of a building[15], the release of a person[16], the redress of any past or future, negative consequences derived from a disciplinary punishment[17], the discontinuation of detention on remand and its replacement by another reasonable and less stringent, measure of restraint, or with a combination of such measures[18], the replacement of a life sentence by a Convention-compatible penalty not exceeding 30 years of imprisonment[19], the opening of a new criminal investigation[20] or the closing of a pending investigation[21], the obtaining of assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated[22], and the reinstatement of a person in a State function[23]. 5. The retrial clause was first formulated in the specific context of cases against Turkey concerning the independence and impartiality of the national security courts.", "The Court indicated under Article 41 of the Convention that, “in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay”[24]. This was known as the Gençel clause. A similar stance was adopted under Article 41 in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts, but to the infringement of his right to participate in his trial[25]. Subsequently, the retrial clause was named as the Gençel-Somogyi clause. It is important to note that in both cases the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.", "No reference was made in the operative part to the retrial or reopening of the case. 6. In Öçalan v. Turkey[26], the Grand Chamber endorsed the general approach adopted in the above‑mentioned case-law, but with a different terminology and within a different normative framework. It considered under Article 46 of the Convention that where an individual, as in the instant case, had been convicted by a court that did not meet the Convention requirements of independence and impartiality, “a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation” (the so-called Oçalan clause)[27]. However, it added that the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case, and with due regard to the above case-law of the Court.", "The Court also held that its findings of a violation of Articles 3, 5 and 6 of the Convention constituted in themselves sufficient just satisfaction for any damage sustained by the applicant[28]. 7. In Verein gegen Tierfabriken VgT (No. 2), the Grand Chamber explained the meaning of the Oçalan clause in detail. The cornerstone of the Grand Chamber’s judgment is the idea that a reopening of domestic proceedings is a “key means” for the proper execution of the Court’s judgments and should take place in accordance with “the conclusions and the spirit of the Court judgment being executed” [29].", "The Court assumed its inherent (implied) competence to examine the domestic authorities’ conduct after the first Verein gegen Tierfabriken judgment, with the argument that if the Court were unable to examine it, it would escape all scrutiny under the Convention. Thus, the Court’s competence covers, according to the rationale of Verein gegen Tierfabriken Schweiz (VgT) (no. 2), not only the actions of national authorities that conflict with the reopening clause, but a fortiori also their omission to reopen the domestic proceedings[30]. b. The development of other individual measures (§§ 8-18) 8.", "The Court’s case-law evolved rapidly, encompassing other subject matters and fields of law. The result is that the Court’s competence to order a retrial or reopening of a case is now well-established. In fact, the retrial clause has been applied following a finding of a breach of Article 6 on account of infringements of the right of access to court[31], the right to be tried by a court established by law[32], the principle of impartiality or independence of the court[33], the right to participate in the trial[34], the right to question witnesses[35], the right to be heard in person[36], the right to be informed in a detailed manner of the accusation[37], the right to have time and facilities for the preparation of one’s defence[38], the principle of adversarial proceedings and equality of arms[39], the right to legal assistance[40], the principle of a fair trial, including the prohibition of police entrapment[41], and the right to a motivated judgment[42]. Other than Article 6 cases, the clause has been used in Article 2[43] and Article 7[44] cases. Additionally, the clause has been extended to civil, administrative and tax cases[45].", "The criteria of application of the retrial clause in non-criminal cases are not always clear, the Court having refused sometimes to apply it in spite of the applicant’s explicit request[46]. As a result, applicants have no choice but again to seek relief through money and time-consuming international litigation before the Court when the respondent states do not comply with the initial findings of the Court. 9. In view of the above, to state, as the majority do in the present judgment, that these are exceptional cases is an understatement of the Court’s rich case-law. Furthermore, the majority do not fully assess the nature, scope and effect of the retrial clause.", "Paragraphs 49 to 51 of the judgment simply omit such assessment, limiting themselves to a repetitive and partial overview of the Court’s case-law. 10. Normally, the Court refers to the retrial clause as a matter of “principle”, but in some occasions it mentions it as a “rule”[47], equating legal principles and rules. The retrial or reopening of the proceedings has also been described without any mention to a “principle” or a “rule”, since it “constitutes the most appropriate redress in the circumstances of the case”[48]. 11.", "Contrary to the initial judgments, the Oçalan clause has been used under Article 41[49] and the Gençel clause under Article 46[50]. In some less frequent cases a specific retrial clause is inserted in the operative part of the judgment itself. For example, in Lungoci, the Court ordered in the operative part that that the respondent State reopened the domestic proceedings within six months of the date on which the judgment becomes final, if the applicant so requested[51]. In Maksimov, the Court held in the operative part that “the respondent State must take all measures to reopen the cassation appeal proceedings provided by the Transitional law”[52] In other cases, the Court ordered in the operative part not the reopening of the case, but already the legal effect intended as “the most appropriate form of redress”, like for example the full restitution of the applicant’s title to the flat and the annulment of her eviction order[53]. In this type of cases, the Court imposed under Article 41 the revocation of the domestic courts’ eviction order in conjunction with the award of damages.", "If the flat is no longer the State’s property, or if it has been otherwise alienated, the respondent State should ensure that the applicant receives an “equivalent flat”[54]. In some other cases, the Court determined, in the operative part of the judgment that, in accumulation with the Court’s award of just satisfaction, a domestic judicial decision be implemented and produce its real effect[55]. 12. In Laska and Lika, the Court went a step further and considered under Article 46 that there was a positive obligation incumbent on the respondent State to “remove any obstacles in its domestic legal system that might prevent the applicants’ situation from being adequately redressed (...) or introduce a new remedy” for the reopening of the cases in view of the lack of such remedy in national law[56]. To be more precise, the Court did not refrain from recalling that the Contracting States are under a duty to organise their judicial systems in such a way as to enable their courts to meet the requirements of the Convention, but adduced, innovatively, that this principle also applies to the reopening of proceedings and the re-examination of the applicants’ case.", "Yet such imposition was not repeated in the operative part which referred to the award of non-pecuniary damage, but not to the reopening of the case[57]. 13. In M.S.S., having regard to the particular circumstances of the case and the urgent need to put a stop to these violations of Articles 13 and 3 of the Convention, the Court considered “it incumbent on Greece, without delay, to proceed with an examination of the merits of the applicant’s asylum request that meets the requirements of the Convention and, pending the outcome of that examination, to refrain from deporting the applicant”[58]. Yet none of these individual measures indicated under Article 46 were inserted into the operative part of the judgment. 14.", "The case-law is also changeable with regard to the accumulation of just satisfaction and the retrial clause. In spite of the fact that neither the Gençel nor the Oçalan judgments accorded just satisfaction, the Court imposes cumulatively just satisfaction and the retrial clause in the vast majority of cases[59]. Less frequently, it dismisses the claim for just satisfaction in view of the retrial clause[60] or imposes them alternatively[61]. The grounds for such a choice are not obvious. 15.", "Occasionally, the Court merely refers to the existence of a national mechanism for the review of the domestic judgment, sometimes in addition to the award of just satisfaction[62], at other times in its absence[63]. 16. Summing up, individual measures may be imposed by the Court according to one of the following three types of solutions: A. Obligations imposed in the operative part: B. Obligations included only in the reasoning part: C. Other individual measures included in the reasoning: 17.", "In the light of the foregoing considerations, it is undeniable that, in the long-standing practice of the Court, obligations imposed in the operative part and those included only in the reasoning part of the judgment have the same legal force, in spite of the different formulation given to them. The reopening clause is a key means for the execution of the Court’s judgments whose legal force does not depend on whether it is inserted in the reasoning or the operative part of the judgment. To conclude otherwise would mean either that the judgments’ language is dictated by whimsical changes of mood or, even worse, by political considerations. The choice of the formula in the Court judgments is neither a matter of taste of the drafter nor of chamber politics determined by the need to confer a more or less emphatic tone to the individual measure in view of the respondent State’s expected reluctance or abeyance to follow suit. 18.", "In sum, Article 46 of the Convention does provide, when appropriate, for imperative, individual legal effects of the Court’s judgments in the domestic legal order of the respondent state, including an order for retrial, re-examination or reopening of a criminal case. The Oçalan clause must be read coherently and consistently in the light of the Court’s evolving case-law. As it will be demonstrated, the variety of formulae present in the case-law not only raises an issue of lack of readability of the judgment and consequently of legal certainty, but also undermines the full and effective enforcement of the Court’s judgments. Unfortunately, the present judgment does not provide the much needed guidance in this ambit, in terms of putting into perspective the Oçalan clause against the background picture of the Court’s rich case-law on individual measures of redress of a Convention violation and of restating their legal force. III.", "The right to reopen a criminal case after a Court finding of a Convention violation (§§ 19-34) a. The strict standard of Committee of Ministers Recommendation (2000) 2 (§§ 19-27) 19. The majority of the Grand Chamber deny the right to reopen a criminal case after a Court’s finding of a violation on the basis of the lack of a “uniform approach among the contracting States”. In their assessment of the implementation of Recommendation (2000) 2 on re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (hereinafter “the Recommendation”), the majority conclude that “in most of those States the reopening of proceedings is not automatic and is subject to admissibility criteria”[64]. In its leading judgment of 27 May 2009, the Supreme Court also interpreted, by a majority of two to one, Article 449 (1) (g) of the Code of Criminal Procedure in the light of and with the same exact content of the Committee of Ministers Recommendation No.", "R (2000) 2[65]. Since both the majority of the Grand Chamber and the majority of the Supreme Court in its 27 May 2009 judgment rely on the standards of the Committee of Ministers Recommendation (2000) 2 as the point of departure for their own reasoning, it is necessary to analyse that Recommendation and its implementation by the Contracting Parties to the Convention. 20. The Committee of Ministers Recommendation states that “in exceptional circumstances the re-examination of a case or a re-opening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum.” Moreover, the Committee of Ministers encourages the Contracting parties to the Convention to provide for the reopening of domestic proceedings in the case of a substantive or a procedural violation of the Convention. In both cases, the victim of the human rights violation must still be suffering its very serious negative consequences at the time the Court establishes the violation and these consequences can only be remedied by reopening the proceedings.", "When a procedural error or shortcoming has been established by a judgment of the Court, a reopening of the case is also dependent on the gravity of the error or shortcoming and the seriousness of the issuing doubt on the outcome of the domestic proceedings. 21. The difference of regime between substantive and procedural Convention violations for the purposes of reopening domestic proceedings creates an undesirable uncertainty. Considering the fact that the Court does not always distinguish between substantive and procedural violations, preferring to find a global violation, it will not be always clear which criteria to apply: the more stringent criteria for a reopening following a finding of a procedural violation, or the less stringent criteria for a reopening following a finding of a substantive violation. 22.", "Moreover, the reopening of the case shall only be authorised when two cumulative conditions obtain: the continuing suffering of very serious negative consequences and the impossibility of remedying those consequences by way of just satisfaction. Neither of these conditions is present in Article 4 (2) of Protocol 7. It is difficult to understand why a reopening following the finding of a Convention violation in a Court judgment should be subject to stricter conditions than those laid down in Article 4 (2) of Protocol 7 for any other domestic reopening procedure. 23. Furthermore, the requirement that the negative consequences of a Convention violation “are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening” establishes a relationship of subsidiarity between reopening the domestic proceedings and just satisfaction.", "Accordingly, whenever possible, preference must be given to just satisfaction over reopening the domestic proceedings. This rule of subsidiarity of reopening contradicts Article 41 of the Convention itself. According to this provision, the respondent State should do its best to provide full reparation (and not “partial reparation”) for a declared Convention violation, preferably by way of restitutio in integrum, which means wiping out the legal and material consequences of its wrongful act by re-establishing the situation that would exist if that act had not been committed, and for that purpose by reopening the domestic proceedings that led to the wrongful act[66]. Compensation can certainly be added to restitution insofar as damage is not made good by restitution[67], but not set as an alternative to it, and even less as a preferable alternative. To put it in logical terms, the Recommendation reverses the logical order of preference established by Article 41 of the Convention.", "Ultimately, the very strict terms of the Recommendation are not in line with the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution as far as possible and that compensation can be considered only after concluding that, for one reason or another, restitution could not be effected[68]. 24. Worse still, the underlying assumption of the Recommendation conditions is that human rights violations can be “bought”. Governments may avoid the reopening of domestic proceedings by paying up for a Convention violation established by a final Court judgment, regardless of the nature of the Convention right or freedom violated. 25.", "In addition, the requirement of the “continuing suffering” contradicts the rationale of the extraordinary appeal for the purpose of reopening of domestic proceedings. In the vast majority of member States, reopening of a case is allowed even when the penalty had already been served or the convicted person had already died. 26. Furthermore, the requirement of “continuing suffering” is highly restrictive, because it warrants “a direct causal link between the violation found and the continuing suffering of the injured party”[69] and “very serious negative consequences because of the outcome of the domestic decision at issue”. It is doubtful that these “very serious negative consequences” include the entry of a conviction in the convicted person’s criminal record[70], the payment of a fine in instalments[71] or the submission to limitations to the convicted person’s social and professional life imposed by a suspended sentence, parole or conditional release.", "27. When the Convention violation is committed in criminal proceedings, it may impact on the conviction or the sentencing. Restoring the applicant in the position he would have enjoyed had the violation not occurred may warrant the review of both the conviction and the sentence or just the sentence, whatever the latter’s gravity might be. b. The broad European consensus in the implementation of the Recommendation (§§ 28-34) 28.", "In the vast majority of member States, domestic legislation explicitly provides for the right to request the review or the reopening of criminal proceedings on the basis of a finding of a violation by the Court or of a judgment by an international court, which covers the Court[72]. This is the case in Article 30bis of the Andorran Transitional Act on Judicial Proceedings and Article 19bis of the Justice Act[73], Articles 363 (a) to 363 (c) of the Austrian Code of Criminal Procedure[74], Articles 442 bis and 442 quinquies of the Belgium Code d’instruction criminelle and Article 116 of the Law of 5 February 2016[75], Article 327 § 1 (f) of the Code of Criminal Procedure of Bosnia and Herzegovina[76], Article 422 § 1 (4) of the Bulgarian Code of Criminal Procedure, Article 502 of the Croatian Code of Criminal Procedure[77], section 119 of the Act on the Constitutional Court of the Czech Republic[78], the Cypriot Law no. 23(I)/2015 of 25 February 2015[79], Article 457 § 1 (b) of the Dutch Code of Criminal Procedure[80], Article 367 § 7 of the Estonian Code of Criminal Procedure, Article 622-1 of the French Code of Criminal Procedure[81], Article 310 (e) of the Georgian Code of Criminal Procedure[82], section 359 § 6 of the German Code of Criminal Procedure[83], Article 525 § 1 (e) of the Greek Code of Criminal Procedure[84], Article 416 § 1 (g) of the Hungarian Code of Criminal Procedure[85], Article 655 § 2 (5) of the Latvian Law on criminal procedure[86], Article 456 of the Lithuanian Code of Criminal Procedure[87], Article 443 § 5 of the Luxembourg Code of Criminal Procedure[88], section 449 § 1 (6) of the Macedonian Criminal Proceedings Act, Article 508 § 4 of the Monaco Code of Criminal Procedure, Article 464 of the Moldovan Code of Criminal Procedure[89], Article 424 § 6 of the Montenegro Code of Criminal Procedure, section 391 § 2 of the Norwegian Criminal Procedure Act[90], Article 540 § 3 of the Polish Code of Criminal Procedure[91], Article 449 § 1 g) of the Portuguese Code of Criminal Procedure, Article 465 of the Romanian Code of Criminal Procedure[92], Article 200 of the San Marino Code of Criminal Procedure[93], section 394 §§ 1-3 of the Slovakian Criminal Procedure Code[94], Article 954 § 3 of the Spanish Code of Criminal Procedure[95], Article 122 of Federal Law of 17 June 2005 on the Swiss Federal Court[96], Article 311 (f) of the Turkish Code on Criminal Procedure[97] and Article 445 of the Ukrainian Code of Criminal Procedure[98]. In only two member States, Azerbaijan[99] and Russia[100], the existence of explicit provisions on reopening of criminal proceedings on the basis of a Court judgment does not correlate to an individual right of the convicted person to reopening. 29.", "In some member States the absence of an explicit provision for the reopening of criminal proceedings on the basis of a final judgment of the Court has been overcome by a dynamic interpretation of the general provisions on review under the Code of Criminal Procedure or procedural law. This is the case in Albania[101], Denmark[102], Finland[103], Iceland[104], Ireland[105], Italy[106], Sweden[107] and the United Kingdom[108]. In Malta, it would be possible to request a reopening on the basis of Article 6 of the European Convention Act, according to which any judgment of the Court to which a declaration made by the Government of Malta in accordance with Article 46 of the Convention applies may be enforced by the Constitutional Court. Furthermore, the Prime Minister may, ex officio or upon request of a person convicted “on indictment”, refer a case to the Court of Criminal Appeal. In that event, the case shall be treated as an appeal to that court by the person convicted, and presumably, that court could have regard to any finding of a violation of the Convention by the Court when deciding whether to quash the conviction and order a retrial.", "However, neither of these two mechanisms (enforcement by the Constitutional Court and referral of the case by the Prime Minister to the Court of Criminal Appeal) has ever been used[109]. In Serbia, Article 473 of the new Code of Criminal Procedure could provide the grounds for the reopening of criminal proceedings based on the court’s judgments if these were in the future to be interpreted as “new facts” or “new evidence”, but this has not been the case yet[110]. The same could be said for Armenia[111] and Slovenia[112]. 30. Finally, Liechtenstein is the sole member State where the reopening or review of criminal convictions on the grounds of a judgment by the Court is not possible.", "The absence of this right is justified by the legal concept of res judicata and legal certainty[113]. 31. Reopening is sometimes subject to specific conditions in conformity with the criteria enumerated in the Recommendation (2000) 2 of the Committee of Ministers (II [i] and [ii]). Some member States provide that the convicted person must continue to suffer the negative consequences of the violation found by the Court or the effects of the conviction (Belgium, France, the Republic of Moldova, Monaco, Portugal[114], Romania, the Russian Federation[115], San Marino, Slovakia, Spain and Sweden[116]). In some other member States, there is no requirement of effective causality between the violation and a damage caused by the domestic judgment, since potential causality suffices.", "For example, some States additionally require for reopening that the impugned domestic judgment must be “based” on the violation found by the Court (Bosnia and Herzegovina, Germany and Montenegro) or that the violation is of “essential importance for the case” (Bulgaria) or that and it must be assumed that a new hearing should lead to a different decision (Norway). Others appear to have a lower threshold, requiring only that it could not be ruled out that the violation might have affected the content of the domestic decision in a manner detrimental to the person concerned (Austria) or that the finding of a violation may have affected the outcome of the case (Estonia). With regard to violations of the Convention in the course of domestic proceedings, in some of the States reopening is only allowed where the procedural shortcomings cast a doubt on the outcome of the impugned proceedings (Belgium, Lithuania, Norway and Poland). In the United Kingdom, the Criminal Cases Review Commission will refer the case to the Court of Appeal when it considers “that there is a real possibility that the conviction would not be upheld were the reference to be made” (i.e. a real possibility that the conviction would be quashed by the Court of Appeal).", "In Malta, if a criminal case is referred by the Prime Minister to the Court of Criminal Appeal, the latter may order a retrial on the grounds of an irregularity during the proceedings, or a wrong interpretation or application of the law, which could have had a bearing on the initial verdict, “if it appears to the court that the interests of justice so require”. The legislations of other member States require that the effects of the violation found can only be rectified by re-examination or reopening, that review or reopening is necessary to remedy those effects, or that they cannot be remedied by compensation or just satisfaction (Andorra, Belgium, Estonia, France, Italy, Lithuania, the Republic of Moldova, Monaco, the Netherlands, Norway, Portugal[117], Romania, San Marino, Slovakia, Spain and Switzerland). In Montenegro, it is sufficient if the reopening of the proceedings can remedy the violation found by the Court. In Sweden, domestic case-law established that reopening may be ordered where it is considered a more adequate measure than other available measures. In some of the member States, legislation provides for both types of conditions (reopening as the only means of remedying the effects of the violation and the continuing existence of negative consequences of the violation) to be met cumulatively (Belgium, France, the Republic of Moldova, Monaco, Portugal, Romania, San Marino, Slovakia and Spain).", "32. As regards the type of violation found by the Court, the vast majority of member States do not distinguish between cases in which the proceedings at issue were unfair (violation of Article 6) and cases where it was their outcome or decision which was on the merits contrary to the Convention (for instance, to Article 10). Some legislations explicitly refer to both types of violations, in line with the Recommendation (2000)2 of the Committee of Ministers (Belgium, Greece, Hungary, Norway and Poland), but only three of them provide for different rules according to the nature of the violation (Belgium, Norway and Poland). 33. Successful cases of reopening are known in a number of domestic jurisdictions.", "In cases in which the Court had found Article 6 violations they led to the annulment of the initial domestic judgments and the re-examination of the case, resulting in the rectification of the shortcomings identified by the Court with the same (conviction) or a different outcome (e.g. acquittal). These cases refer to different types of Article 6 violations, including violations of the principle of legal certainty[118], of the right to have a reasoned judgment[119], of the right to a public hearing and to have the evidence directly assessed by the convicting court[120], of defence rights under Article 6 § 3 (d)[121], of the right to a fair trial in cases of police entrapment[122] and of the right to be presumed innocent[123], among others. A worrying signal of the indifference of national courts to judgments of the Court finding a Convention violation is the lack or scarcity of a judicial practice of reopening criminal proceedings on the basis of the Court’s judgments in some judicial systems, as in Armenia, Denmark, Ireland, Malta, San Marino and Serbia. Even more serious is the situation in Russia and Azerbaijan, where victims of human rights violations do not even have a right to the reopening of proceedings.", "This situation contrasts with the openness to the Court’s judgments of other judicial systems, as in Albania, Austria, Belgium, France, Georgia, Greece, Lithuania and Moldova. 34. Summing up, there is a European consensus on the individual right to a reopening of criminal proceedings on the basis of a finding of a violation by the Court, with only three States departing from this solution[124]. Furthermore, a small minority of the European States provide that the effects of the violation found can only be rectified by reopening, and an even smaller minority lay down that the convicted person must continue to suffer the negative consequences of the violation found by the Court. Only nine States lay down both material admissibility criteria.", "Accordingly, the comparative-law conclusions of the majority, as expressed in paragraphs 34 to 39 of the judgment, do not reflect the situation on the ground. The majority’s deficient comparative-law method, based on a strictly descriptive approach, can be criticised for two main reasons: first, it did not properly identify the aim of the comparison (why to compare, for what purpose) and consequently it failed to determine the proper sources and level of the comparison (what to compare or how to compare). The thoroughness of the comparison also leaves much to be desired, the majority opting for a purely descriptive-quantitative approach to the materials available, without any analysis of the differences and specificities of the national legal systems, including the case-law of the competent domestic courts and the practice of other competent political and administrative authorities. Such a methodologically incorrect comparative method could not but lead to a misevaluation of the European consensus. Second Part (§§ 35-56) IV.", "The applicability of Article 6 to the extraordinary appeal to reopen a criminal case (§§ 35-44) a. The majority’s evolutive reading of the Court’s case-law (§§ 35-39) 35. In accordance with the traditional view that Article 6 § 1 of the Convention does not guarantee a right to the reopening of proceedings[125], it has been the Court’s position that it does not have competence ratione materiae over complaints related to extraordinary remedies for the reopening of a criminal case, because they pertain to a stage of the proceedings where the offender can no longer be considered as “charged of a criminal offence”. 36. In 2015, the Court made a step forward in the field of civil law, admitting that Article 6 is not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, unless the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings on that kind of appeal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants[126].", "This Grand Chamber case-law was applied that same year of 2015 in a criminal law case [127], in which the Court found that the Supreme Court, by excluding the confession made by the applicant in the absence of his lawyer from the body of evidence following the Court’s previous judgment and reassessing the remainder of evidence to conclude that the applicant’s conviction could stand, had undertaken a re-examination of the applicant’s case. The Court equated the legal situation in which the applicant found himself to that of the applicant in the case of Bochan (no. 2). The Court concluded therein that Article 6 applied given that the Supreme Court had conducted a “reconsideration” of the applicant’s claim on new and fresh grounds linked to its interpretation of the Court’s judgment, albeit deciding not to change the outcome of the case. Thus, the proceedings at issue concerned the determination of the applicant’s guilt of a criminal offence within the meaning of Article 6 of the Convention.", "Such a re-examination constituted relevant new information in the context of a fresh application which the Court can deal with. 37. According to the present judgment, Article 6 of the Convention is applicable to extraordinary remedies for the reopening of a criminal case whenever the appellate court is called upon to determine a criminal charge[128]. Ultimately, this evolutive interpretation of Article 6 equates ordinary appeals and extraordinary appeals for reopening of proceedings by transforming the latter into an “extension” of the former[129]. To put it in crystal-clear terms, this is the final step in the process of recognising the full applicability of Article 6 to extraordinary appeals for the reopening of a criminal case, and it is also the added value of this judgment[130].", "38. This bold and laudable development of the case-law is accompanied by the no less remarkable acknowledgment of the Court’s competence over the non-execution of its judgments, namely when the domestic courts refuse to reopen the criminal case following a finding of a Convention violation. Here again, the Court is consolidating its own case-law. The role of the Committee of Ministers, under Article 46 § 2 of the Convention, in supervising the execution of the Court’s judgments does not mean that measures taken by a respondent State to implement a judgment delivered by the Court cannot raise a new issue under the Convention and thus form the subject of a new application that may be dealt with by the Court[131]. 39.", "Emre (no. 2)[132] put the final touch to this line of case-law. In Emre[133], the Chamber criticised a measure of indefinite removal. In Emre (no. 2), another Chamber acknowledged the Court’s competence over the execution of its judgments in spite of the fact that the Swiss Federal Court had upheld the request for a reopening of the case and replaced the measure of removal banning the applicant from Switzerland for an indefinite duration by removal with a ban of ten years from 2 June 2003.", "The Chamber found that there had been a violation of Article 8, in conjunction with Article 46, because the Federal Court had wrongly implemented the Court’s first Emre judgment[134]. With the present judgment, the Grand Chamber lends its authority to the Emre (no. 2) judgment’s hands-on approach on the issue of non-existent or deficient implementation of the Court’s judgments. b. The majority’s misreading of Portuguese law (§§ 40-44) 40.", "The majority’s commendable leap forward in terms of the applicability of Article 6 of the Convention to extraordinary remedies concerning the reopening of criminal proceedings is even more significant in view of the fact that it is based on an erroneous interpretation of national law. The majority misread the national legal framework on extraordinary remedies in criminal procedure with a view to reaching the conclusion that the extraordinary appeal for reopening a case lodged before the Supreme Court in accordance with Article 449 of the Code of Criminal Procedure “determines a criminal charge” and therefore comes within the scope of Article 6 of the Convention[135]. Such a misreading of national law fittingly tailors the instant case to the majority’s extension of the Bochan (no. 2) rationale to criminal cases, in so far as the latter required that the extraordinary appeal for the reopening of proceedings be “similar in nature and scope to ordinary appeal proceedings”[136] in order for the guarantees of Article 6 of the Convention to apply to the extraordinary appeal in question. 41.", "The point warrants dwelling further on the intricacies of national law. As a matter of law, it is erroneous to argue that in Portuguese law the extraordinary appeal for the reopening of a criminal case has “some features in common with an appeal on points of law”[137]. They differ in terms of the admissibility requirements, locus standi, time-limits, formalities, the competent court, the remit of the court and the appellant’s procedural guarantees, as the Government themselves rightly pointed out[138]. Ordinary appeals (recursos ordinários) and extraordinary appeals (recursos extraordinários) are regulated, respectively, in Title I and II of Book IX of the Criminal Procedure Code. There are common provisions applicable to both ordinary appeals to the court of appeal and ordinary appeals to the Supreme Court (Articles 399 to 426-A), but there are no common provisions applicable to both ordinary appeals and extraordinary appeals.", "They are regulated separately, in different Titles of the Code. Article 448 foresees the subsidiary application of the provisions on ordinary appeals to the appeal for the uniformity of the case-law, but there is no equivalent norm for an appeal to reopen a case. Thus, it is wrong to maintain that in Portuguese law the extraordinary remedy of Article 449 of the Code of Criminal Procedure is an “extension” of the previous proceedings concluded by the judgment of 19 December 2007[139]. The Supreme Court itself has always held that the extraordinary remedy for the reopening of a case is not an “appeal in disguise” or a “substitute of the ordinary appeals” and therefore it should not be “permissive to the extent of trivialising and consequently underestimating reopening” as if it were a mere extension of the previous proceedings[140]. 42.", "In sum, the Supreme Court is not called upon to “determine a criminal charge”[141] when it performs its powers under Article 449 of the Code of Criminal Procedure. The Supreme Court only reviews the admissibility criteria of the reopening request and, if the request is admitted, the fresh determination of the criminal charge is performed by another court in accordance with Article 457[142]. 43. The majority’s conclusion that “the Supreme Court once again focused on the determination, within the meaning of Article 6 § 1 of the Convention, of the criminal charge against the applicant” stretches the autonomous concept of “determination of the criminal charge” to its limits. If nothing prevents the Court from establishing an autonomous understanding of the concept of “determination of criminal charge” for the purposes of the applicability of Article 6 to extraordinary remedies for the reopening of criminal proceedings, this exercise should not be conducted on the basis of an interpretation of national law that distorts the meaning of extraordinary appeals in the Portuguese Code of Criminal Procedure.", "44. Not only is the majority’s conclusion legally unfounded, but it also raises another serious issue related to the exhaustion of domestic remedies. The majority´s silence on this point allows the highly problematic inference that an application for a reopening of proceedings or the use of similar remedies must, as a general rule, be taken into account for the purposes of Article 35 §1 of the Convention[143]. This would be a regrettable case-law development. V. The application of Article 6 in the present case (§§ 45-56) a.", "The Supreme Court’s interpretation of Article 449 § 1 g) of the Code of Criminal Procedure (§§ 45-50) 45. In its judgment of 21 March 2012, the Supreme Court concluded that the applicant’s conviction was not incompatible with the Moreira Ferreira judgment and excluded from the scope of Article 449 § 1 (g) of the Code of Criminal Procedure certain procedural violations, such as the absence of the defendant from proceedings, because they were not serious enough for the conviction to be considered incompatible with the Moreira Ferreira judgment. In other words, the Supreme Court applied, in substance, the position of the majority of the Supreme Court’s judgment of 27 May 2009. The Supreme Court also argued that the procedural vice detected by the Court judgment of 5 July 2011 corresponded to an irremediable nullity (nulidade insanável) which could not, in and of itself, trigger a reopening of the proceedings according to Article 449. 46.", "This interpretation is problematic for three reasons. Firstly, Article 449 § 1 (g) does not draw a difference between substantive and procedural violations. Secondly, this restrictive interpretation departed from a series of judgments previously delivered by the Supreme Court on the basis of that same article[144]. Thirdly, the argument concerning irremediable nullity is aimed at invoking a legal impediment to the execution of the Court’s judgment within the domestic legal framework. The counter-argument is obvious: national law cannot be invoked to oppose restitutio in integrum in the form of the reopening of domestic proceedings[145].", "47. Yet the majority of the Grand Chamber accept that the Supreme Court interpretation of Article 449 § 1 (g) did not “appear to be arbitrary”[146], because it was supposedly in line with the Court’s case-law to the effect that the Convention does not guarantee the right to a reopening of proceedings[147]. It has been demonstrated above that this statement does not correspond to the full picture of the Court’s case-law. 48. Furthermore, the majority find no “uniform approach among the contracting States as regards the right to apply for the reopening of proceedings that have been closed”[148].", "The argument advanced by the majority that “in most of those States the reopening of proceedings is not automatic and is subject to admissibility criteria”[149] simply misses the point. The point is not whether the reopening is automatic or not. In fact, reopening is never automatic, as the comparative-law review conclusively demonstrates. There are always formal admissibility criteria, like those pertaining to locus standi. But this is not the point.", "The point is whether there are material admissibility criteria or not. Likewise, the argument that there is a “lack of a uniform approach among the member States as to the operational procedures of any existing reopening mechanisms”[150] does not address the issue at stake in the present case. The issue is not “the operational procedures of any existing reopening mechanisms”, but the existence of material admissibility criteria that give the domestic court a margin of discretion in assessing the request to reopen a criminal case which was concluded by a final judgment, following a finding by the Court of a violation of the Convention. 49. As demonstrated above, there is a clear European consensus among member States regarding the individual right to re-examination of the case, including reopening or retrial of proceedings, in instances where the Court has found a violation of the Convention.", "Only a minority of States set out material admissibility criteria for determining whether the reopening should be granted in the form of either of the Committee of Ministers’ criteria (continuing suffering of negative consequences, or the violation and effects can only be rectified by reopening) and an even smaller minority require both criteria. In the light of this European consensus, one cannot but agree with the judge writing separately in the Supreme Court’s judgment of 27 May 2009. His interpretation of Portugal’s international obligation to reopen the criminal case after a Court’s finding of a Convention violation, without any discretion on the part of the Supreme Court, corresponds to the European consensus. Justice Maia Costa was indeed right. 50.", "Under the combined effect of an misevaluation of the existing European consensus on the reopening of criminal cases following a Court’s finding of a Convention violation and the respondent State’s margin of appreciation available to domestic authorities in the interpretation of the Court’s judgments, the majority of the Grand Chamber have chosen a minimalist approach that weakens the Court’s authority and is hardly likely to enlighten the domestic courts. The majority take the unfortunate step of applying a particularly high threshold to the European consensus, thus potentially extending the States’ margin of appreciation beyond its limits. Without providing any reason for it, the majority set the bar for the consensus on the highest possible level of a “uniform”[151] regulation of the institute of extraordinary appeal for reopening of criminal cases. The majority’s contradictory approach to the determinative value of the European consensus and to the objective indicia used to determine consensus are pushed to their limit here, engendering great legal uncertainty. b.", "The Supreme Court’s interpretation of the Moreira Ferreira judgment (§§ 51-56) 51. In its judgment of 21 March 2012, the Supreme Court assumed that the Court had precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence imposed. It added that the court had provided sufficient redress for the procedural violation found by making an award to the applicant by way of just satisfaction. The prosecutor in the Supreme Court defended the opposite position, considering that serious doubts could legitimately be raised about the applicant’s conviction. Consequently, he asked for the extraordinary appeal to be admitted.", "52. In the case at hand, the refusal of the Supreme Court to implement the 2011 Court judgment does not provide any new information on the facts or the legal aspects of the case. It adds literally nothing to the substance of the applicant’s initial criminal case. The Supreme Court did not put forward any relevant and sufficient reasons for finding that the 19 December 2007 judgment of the Oporto Court of Appeal was compatible with the Court’s judgment of 5 July 2011. In other words, in Moreira Ferreira (no.", "2) the Grand Chamber is confronted with the pure and simple non-execution of the Moreira Ferreira judgment and not with a new determination of the criminal charge. 53. The majority of the Grand Chamber find that the Supreme Court interpretation of the Moreira Ferreira judgment was not “arbitrary”[152]. On the basis of an underestimation of the binding meaning of the Oçalan clause, which does not tally with the history of that clause, as I have demonstrated above, the majority assume that in Moreira Ferreira the Chamber accorded to the respondent State “an extensive margin of manoeuvre”[153]. Thus, in the majority´s view, the Supreme Court’s interpretation of the Chamber judgment was within the “margin of interpretation available to the domestic authorities in the interpretation of the Court’s judgments”[154].", "54. This is the most unfortunate point made by the majority in the entire judgment, on both domestic and Convention law grounds. At this juncture, it should be noted that the majority of the Grand Chamber omit to provide the correct interpretation of the Moreira Ferreira judgment, but at the same time condone the domestic judgment of 21 March 2012 as not distorting the meaning of the previous Chamber judgment of 5 July 2011. As the public prosecutor in the Supreme Court quite rightly pointed out, the correct interpretation of the Moreira Ferreira judgment points in the opposite direction. In Moreira Ferreira, the Court held that the issue of the applicant’s criminal liability was so important for the outcome of the case that the Court of Appeal should not have adjudicated on the appeal without first carrying out a full rehearing of the applicant.", "Hence, the Court found a serious procedural violation which could impact on the outcome of the applicant’s criminal proceedings, namely on the degree of imputability of criminal liability to the applicant and her sentencing[155], and therefore the Oçalan clause should be followed by a reopening of the applicant’s case. In its judgment of 5 July 2011, the Court did not, and did not have to, assess whether the conviction was doubtful or not. Thus, it did not preclude from the outset any possibility that the impugned domestic judgment of 19 December 2007 might raise serious doubts about the conviction. The Court’s statement that it could not “speculate as to what the outcome of the proceedings before the court of appeal would have been if it had examined the applicant at a public hearing” must be interpreted not as a confirmation of the validity of the conviction but as an expression of the principle of subsidiarity. Consequently, the Supreme Court’s refusal to reopen the applicant’s case was based on an ultra vires and non-purposeful reading of the Moreira Ferreira judgment which failed to take into account the latter’s object and purpose, in other words, “the conclusions and the spirit of the Court judgment being executed”[156], rendering illusory the principle of restitutio in integrum and impairing the very essence of the applicant’s right to appear before a court determining a criminal charge against her, namely the Oporto Court of Appeal[157].", "Finally, the Supreme Court rejection is untenable even in the light of the standards set out in its leading judgment of 27 May 2009. At the time of the delivery of the Supreme Court’s judgment on the applicant’s request for reopening (21 March 2012), the consequences of the impugned domestic judgment of 19 December 2007 (fine paid in several instalments and conviction entered in the applicant´s criminal record[158]) had not disappeared as a result of the Court’s judgment in Moreira Ferreira and therefore the applicant was still suffering from the negative effects resulting from the domestic judgment[159]. 55. The frustration could not be greater. The majority’s promised human rights-friendly approach at the admissibility stage is frustrated at the merits stage.", "Strangely enough, the arbitrariness test is used in the merits part for assessing the domestic authorities’ interpretation of Court’s judgments and their interpretation of national law[160]. The majority of the Grand Chamber equate the interpretation of Court’s judgments by the domestic authorities with the interpretation of national law by the domestic authorities, as if the Court’s judgments and national law were at the same level. The majority rely entirely on the domestic court’s own interpretation of the Court’s judgments, ascribing to the Court no special expertise to interpret its own judgments. In practice, the arbitrariness test is a blank check for the domestic courts, since the majority’s evaluation of the Supreme Court’s refusal is limited to the formalistic verification that “the Supreme Court provides a sufficient indication of the grounds on which it was based”[161]. The majority’s position dispensing themselves of any substantive assessment of the Supreme Court’s interpretation of the Moreira Ferreira judgment means that the Court yields its own competence to interpret its judgments, now explicitly enshrined in Article 46 § 3 of the Convention.", "To put it differently, this self-imposed limitation of the interpretative powers of the Court is at odds with the Convention itself and with the explicit will of the Contracting Parties as expressed in the Protocol 14 reform of Article 46 § 3 of the Convention. 56. In so doing, the majority are envisaging the Court as a mere advisory body to the Supreme Court which is ultimately free to interpret the Court’s judgments as the Supreme Court pleases as long as the latter sets out some grounds, any grounds for its interpretation, regardless of the content of those grounds. Applying to the Court its own case-law, namely the seminal case Benthem v. the Netherlands,[162] one would have to conclude that, according to the majority, the Court is not a judicial body, because it does not even have competence to order an individual measure to redress a Convention violation, such as reopening the domestic proceedings, and to interpret its own judgment when a new application is lodged on the basis that the Court’s order has not been complied with. VI.", "Conclusion (§§ 57-60) 57. The judgments of the Court are not merely declaratory. The case-law on Article 46 of the Convention did not remain fossilised in the past, providing today, when appropriate, for the imperative, individual legal effects of the Court’s judgments in the domestic legal order of the respondent state, including an order for re-examination, retrial or reopening of a criminal case. The Oçalan clause must be read in the light of this evolving case-law. 58.", "The very strict terms of the Committee of Ministers Recommendation No. R (2000) 2 raise an issue with Article 4 (2) Protocol 7. Furthermore, both the rationale of the institute of reopening of criminal proceedings and the principles of international law on reparation warrant a more generous understanding of the right to reopen a criminal case following a Court finding of a Convention violation. In actual fact, the Recommendation’s implementation went well beyond the letter of the text. There is today a European consensus on the individual right of reopening of criminal proceedings on the basis of a finding of a violation by the Court, with no discretion on the part of the competent domestic authorities to reject it on the basis of material admissibility criteria.", "59. In the light of the foregoing considerations, Article 6 of the Convention is applicable to extraordinary remedies for the reopening of a criminal case. In view of the autonomous nature of the Court’s interpretation of the Convention, the majority’s commendable step of acknowledging the principle of the applicability of Article 6 of the Convention to extraordinary remedies concerning the reopening of criminal proceedings is not prejudiced by the fact that it is based on a wrong interpretation of national law. 60. On the basis of an underestimation of the legal meaning of the Oçalan clause, which does not accord with the history of that clause, the majority wrongly assumed that the Chamber had in 2011 afforded the respondent State “an extensive margin of manoeuvre”.", "Like the public prosecutor at the Supreme Court, I conclude that the Supreme Court should have reopened the applicant’s case, and its refusal to do so failed to take into account the Moreira Ferreira judgment’s object and purpose. Hence, Article 6 has been violated. 1MOREIRA FERREIRA v. PORTUGAL (No. 2) JUDGMENT – SEPARATE OPINIONS DISSENTING OPINION OF JUDGE KŪRIS, JOINED BY JUDGES SAJÓ, TSOTSORIA AND VEHABOVIĆ 1. I could not vote for a finding of no violation of Article 6 § 1 of the Convention (point 2 of the operative part of the judgment) for reasons largely corresponding to those expounded in Judge Pinto de Albuquerque’s dissenting opinion.", "I would like to emphasise the importance of a more nuanced approach to the difference between the Court’s straightforward “orders” to reopen the proceedings, actually issued to the domestic judicial authorities, and its less assertive suggestions that such reopening might be the (most) appropriate or even the only form of redress of the Convention violation (see, e.g., §§ 2, 8, 18 and 57 of Judge Pinto de Albuquerque’s opinion), which, not amounting to “orders” in the proper sense of the word, only indirectly compel the domestic judicial authorities to reopen the proceedings in order to meet, at last, the requirements of the Convention. Nevertheless, this difference in our approaches as to the Court’s “dictating” and “engineering” is not really relevant to the present case. Even if not all Court’s “recommendations” (abundant and diverse as they are) to reopen the proceedings or apply other individual measures may be read as direct “orders”, I agree with the overall thrust of Judge Pinto de Albuquerque’s reasoning as to how this particular case had to be decided. There are, however, some points which I want to underscore, or in some cases to complement the considerations of my distinguished colleague. I address these points in this additional dissenting opinion, working on the basis of the majority finding (and, in the end, I allowed myself to be convinced) that Article 46 does not preclude the applicant’s complaint from examination under Article 6.", "2. The language used by the Court throughout its case-law “recommending” that respondent States, after the Court has found a violation of Article 6, conduct a retrial or to reopen proceedings has often been too tentative and therefore somewhat uneven, confusing and inconsistent with the substance of the message it wished to convey to the States concerned. [163] The Court’s stance which that language reveals, or sometimes effectively conceals, may also be seen as confusing, at least in some cases. This judgment had made the situation not less, but perhaps even more, confusing. 3.", "However, this general inconsistency (which is not so overwhelming, so this quality should not be exaggerated) of the “recommendations” in question is immaterial to the present case. That is because the Court’s stance on the reopening of proceedings examined in the judgment of 5 July 2011 is unambiguous, or rather was unambiguous until the present judgment was adopted. It would not be easy, if in fact possible, to discern anything in paragraph 41 of the Court’s judgment of 5 July 2011 which would have permitted the Portuguese Supreme Court to refrain from reopening the applicant’s case. 4. Should the Court have stated more explicitly in 2011 that the proceedings in the applicant’s case had to be reopened?", "With hindsight, one might think so. Such explicitness would have saved it from the major embarrassment which the present judgment entails. 5. At all events, even in the absence of such explicitness, the message which is contained in the last sentence of paragraph 41 of the Court’s judgment of 5 July 2011 was very clear. Very, very clear.", "The Court stated that “the applicant was not given a hearing by the [Oporto] Court of Appeal” (my emphasis). In other words, the Court then concluded that what was given to the applicant by the Oporto Court of Appeal was not a hearing, because a hearing requires, as a minimum, that a person accused of a criminal activity be heard. The applicant was not heard. The judicial procedure in question was anything but a hearing. 6.", "This fundamental finding, plain as it is, could not and should not be overshadowed by considerations as to the “particular circumstances of the individual case” (see paragraphs 20, 93 and 94 of the judgment). Regrettably, it was. 7. This message also could not and should not be camouflaged – but, alas, was so camouflaged – by the Court’s admission of “satisfaction” that the Supreme Court of the respondent State, Portugal, displayed no arbitrariness in the treatment of the applicant’s case, because, in the majority’s opinion, it did not “distort or misrepresent the judgment delivered by the Court” (see paragraph 96 of the judgment). As a matter of fact, it did.", "8. There is no doubt that the Portuguese Supreme Court was right to conclude from the Court’s case-law, in its entirety, that a retrial or reopening of proceedings may not always be indispensable. The Court itself confirmed such a reading of its case-law by acknowledging, in the present judgment, that “a retrial or reopening of the proceedings, if requested, represented ‘in principle an appropriate way of redressing the violation’” and that “the State[s are granted] an extensive margin of manoeuvre in that sphere” (see paragraphs 92 and 93 of the judgment). However, the Supreme Court misread, not the Court’s case-law in its entirety, but the judgment of 5 July 2011, particularly the last sentence of paragraph 41 (in the context of a more general representation of “recommendations” contained in other sentences of that paragraph, where the Court referred to and cited its earlier case‑law), concluding that a retrial or reopening of proceedings was unnecessary, not in general, but in the applicant’s case. 9.", "In terms of the science of logic, this is the fallacy of inference by induction. Inductive inferences, unlike deductive ones, are never certain: they are – at best – only probable and have to be supported by additional evidence or arguments. Coming to the issue under consideration, a retrial or reopening of proceedings, in general, may indeed not be necessary in each and every case. It may – again in general – even be “exceptional”, to quote Recommendation No. R (2000) 2 of 19 January 2000 (see paragraph 32 of the judgment).", "That, however, does not mean that it is also unnecessary in a case where no hearing took place at all. 10. This fallacy, banal as it is, is less visible in the reasoning of the Portuguese Supreme Court, because the latter explicitly dealt with the Court’s case-law in its entirety only incidentally. The Supreme Court was preoccupied, first and foremost, with the application of Portuguese domestic law pertaining to (non-)retrial or (non-)reopening of proceedings, rather than with the overall assessment or detailed analysis of the Court’s case-law more or less magisterially “recommending” a retrial or reopening of proceedings. [164] But this fallacy is straightforward, palpable, even glaringly exposed in the present judgment of the Grand Chamber.", "To wit, having admitted that “a retrial or reopening of the proceedings, if requested, represented “in principle an appropriate way of redressing the violation”” and that “the State[s are granted] an extensive margin of manoeuvre in that sphere” (see paragraphs 92 and 93 of the judgment), the majority proceed to conclude that, “[a]ccordingly, the reopening of proceedings did not appear to be the only way to execute the Court’s judgment of July 2011” (see paragraph 94; my emphasis). “Accordingly”?! This is induction par excellence – in its most perverse and flaw-ridden manifestation. 11. The majority gives great prominence to the words “however” and “in principle”, uttered in paragraph 41 of the Court’s judgment of 5 July 2011 (see paragraph 92 of the judgment).", "This proves little, if anything at all, and not only because these words, unlike the last sentence of the said paragraph, which indeed pertains to the situation under examination, migrated – as is typical of the Court’s case-law – to that judgment from the Court’s earlier case-law, and have not been “adapted” to the circumstances of the applicant’s case. It would hardly be possible to disagree with the majority that “the use of the expression ‘in principle’ narrows the scope of the recommendation, suggesting that in some situations a retrial or the reopening of proceedings might not be an appropriate solution” (ibid.). But does the majority prove in any way that this recommendation was not to be followed, precisely, in the applicant’s situation? Most regrettably, no. 12.", "It is most distressing to discover such pronounced logical (would “illogical” be a better term?) fallacies in the explicit reasoning of the Grand Chamber. But the readership is compelled to read what has been written, even if what has been written runs counter to the laws of logic. Now these illogicalities are carved in the stone of the law of the Convention, as interpreted and applied by the Court. 13.", "Article 6 § 1 explicitly speaks of a “fair and public hearing”, which is the essence of the right to a fair trial. A hearing, no less. Would it still be football if there were no ball on the field? Would it still be a swimming competition if there were no water in the pool? For a trial to be “fair” (or “unfair”), first of all, there must be an actual hearing of the accused.", "A zero, a vacuum, a nonentity, a nothingness, something that has never taken place, never existed and continues not to exist cannot be “fair” or “unfair”. In its judgment of 5 July 2011, the Court itself stated that there was no hearing at all in the applicant’s case. So, there is nothing left which could be “fair”. And nothing to comply with Article 6 § 1 – not only in its procedural limb (to which the Portuguese Supreme Court limited its misrepresentation and misinterpretation of the Court’s judgment of 5 July 2011), but also, and first and foremost (! ), in its substantive limb.", "14. Has anything changed in this respect since 5 July 2011 – in law or in reality? Not really. There was no hearing then, and no hearing took place after that date – in the same criminal case. Six years ago, the fact of not holding a hearing in a criminal case was considered, by the Court, unanimously, to have been contrary to Article 6 § 1.", "Today, however, the continuous absence of a hearing in the same criminal case is considered not to be contrary to Article 6 § 1. 15. The Portuguese Supreme Court and the majority of the Grand Chamber simply (?!) overlooked the fact that “the applicant was not given a hearing” in the criminal case against her. If – as the majority so uncritically accept – the respondent State, Portugal, did indeed enjoy, not only in general, but also in this particular applicant’s case, an “extensive margin of manoeuvre” in “redressing the violation” found by the Court’s judgment of 5 July 2011, it would have been highly felicitous for the majority to have mentioned examples of one or two possible “manoeuvres” from their “extensive” spectrum that would not amount to “not giving a hearing to the applicant”, especially after having stated that a reopening of proceedings – presumably in such a way that the accused person is heard – would have been only “the most desirable option” (ibid.).", "No such examples are to be found in the judgment. No wonder. It is not found in the judgment because, as a matter of principle, it cannot be worded in any satisfactory way. And it cannot be worded in any satisfactory way because the redress for “not giving a hearing” can only be giving a hearing (at last!) to a person to whom it was denied.", "16. So what was so “satisfactory”, for the majority, in the Portuguese Supreme Court’s treatment of the case? What was it, given that the reasons for such a treatment were based on cold-shouldering the Court’s explicit finding that the applicant was denied a hearing in her criminal case – which cold-shouldering effectively amounts to a misreading of the Court’s judgment of 5 July 2011? 17. The answer from the majority is bewildering.", "They are satisfied that “the Supreme Court’s reading of the Court’s 2011 judgment..., viewed as a whole, [was not] the result of a manifest factual or legal error leading to a ‘denial of justice’” (see paragraph 97 of the judgment; my emphasis). To put it bluntly, henceforth, proceedings leading to a person’s conviction may be justified from Article 6 perspective “as a whole” even when that “whole” does not encompass a hearing. A conviction without a hearing is acceptable from the perspective of the Convention! For the Court, holding no hearing in a criminal case but nevertheless convicting a person is not a denial of justice! What then does constitute such a denial?", "To continue, justice in a criminal case now can be done without a hearing. A rhetorical question: what would be the value of such “justice”? 18. For the applicant in the instant case this judgment means the following: (i) she was not granted a hearing in her criminal case; (ii) the Court found this to be not in line with the Convention (iii) then she was repeatedly denied such a hearing; (iv) the Court found that now this denial of a hearing was in line with the Convention. 19.", "It seems that the majority of the Grand Chamber is of the opinion that that hearing, which was never granted to the applicant, was not necessary anyway. So the applicant’s conviction stands, despite having been adopted outside the hearing procedure. The Portuguese Supreme Court found that her “conviction [was] not incompatible with the European Court’s binding decision, and no serious doubts [arose] as to its validity” (see paragraph 26 of the judgment), and the “European Court” upheld this fundamentally erroneous assessment, even though, previously, the same Court had found that that conviction of the applicant was adopted outside the hearing procedure. Does this not amount to an effective – although indirect and implicit – overruling of the Chamber judgment of 5 July 2011 – many years later? A virtual overruling, in which something which was earlier considered to have been a fundamental, essential substantive defect in the judicial process under examination has been downgraded to a minor, insignificant procedural error.", "20. The Portuguese Supreme Court erred in holding that “[t]he European Court ... precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence actually imposed” (see paragraph 26 of the judgment). But it did raise doubts – and serious ones! – both then and now, although those doubts could be dispelled by granting the applicant a hearing. (I myself would have been ready to accept that that they had been dispelled if the applicant had been heard in her criminal case.)", "However, these doubts have been dispelled not one jot by this judgment, which, by the way, was adopted by a slim majority of only one vote (9 votes to 8, whereby one of the judges who actually voted for the operative part of the judgment of 5 July 2011 is with the majority and two are with the minority). 21. What is more, not only has this judgment not at all clarified the Court’s case-law pertaining to a retrial or the reopening of proceedings after a finding by the Court of a violation of Article 6, but also it has produced new doubts. Below I shall name but a few of those doubts (one pertains to the applicant’s conviction, one is of a hypothetical nature, and one is of a more general character). 22.", "With regard to the applicant’s situation, there is a doubt as to the legitimacy (as a category in its widest non-legalistic sense, juxtaposed and at times even opposed to formal legality) of her conviction without a hearing, indeed in the context of an explicit denial of a hearing. Can this conviction be regarded as meeting the standards of Article 6 § 1 with its emphasis on “hearing”? The Court has found that it can. Nevertheless, one may, and probably should, ask: how legitimate is this finding in the eyes not (only) of the law but (also) of fundamental justice, for the fulfilment of which law it is (or should be) merely a means to an end rather than an end in itself? 23.", "The hypothetical doubt is as follows: if the same applicant ever finds herself in a situation similar to the one dealt with by the Matosinhos District Court and the Oporto Court of Appeal, can they again dispense with a hearing and convict her? I am afraid that the Court has held that they can. Or, rather, they could not prior to the adoption of this judgment, but now they can. 24. However, the present judgment also raises a more general question of principle, that is to say, a disturbing question as to the spectrum, or variety, of “manoeuvres” which member States are allowed to entertain in convicting persons without holding a hearing[165] and still to be “covered” by the “margin of manoeuvre” so generously granted to them by the Court?", "How wide is this spectrum? How many other “non-hearing” situations might potentially fall within this gamut and thus be considered not to have occasioned a denial of justice? 25. In this context, the caveat set out in paragraph 99 of the judgment serves little practical purpose and gives little comfort to those who are still waiting for the Strasbourg Court to do justice in the cases which it decides. In that paragraph, the Court reiterates, for the umpteenth time in its case‑law, the “importance of ensuring that domestic procedures are in place whereby a case may be re-examined in the light of a finding that Article 6 of the Convention has been violated” and that “such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law” (my emphasis).", "Since not only the “putting in place” of the said procedures, but also the (mis)interpretation of the meaning of the Court’s “recommendations” fully depends on the will of the authorities of the Contracting States, even where that will is not to reopen the proceedings, and the Court tends to limit its role to merely approving this will, this caveat is but an edentate, pussycat-like reminder of what the Convention was meant for but what it sometimes – as in the instant case – fails to accomplish. DISSENTING OPINION OF JUDGE BOŠNJAK 1. I unfortunately cannot agree with the majority that there has been no violation of the Article 6 § 1 of the Convention in the present case. 2. In my opinion, the majority correctly considers that Article 46 of the Convention does not preclude the examination by the Court of the applicant’s complaint under Article 6 of the Convention.", "Although possibly related to the issue of execution of the Court’s judgment delivered on 5 July 2011 on the applicant’s first application, the present complaint focuses on the approach taken by the Supreme Court of Portugal (hereinafter “the Supreme Court”) when examining the applicant’s request for a reopening of criminal proceedings. Equally, I consider that the majority is right in its conclusions regarding the applicability of Article 6 § 1 of the Convention. Apart from the reasons given in this respect in the judgment of the Court, I believe that in the present case, the examination of the request for a reopening of criminal proceedings cannot be entirely separated from the assessment of the law and facts applicable to the initial determination of a criminal charge against the applicant. In this context, the Supreme Court was expected to re-evaluate the findings of fact and the application of the relevant law in the initial criminal proceedings in the light of the Court’s judgment. The Supreme Court considered that the applicant’s conviction was not irreconcilable with the judgment of the Court and that no serious doubts could be raised regarding the applicant’s condemnation.", "Therefore, I find no obstacles regarding the applicability of Article 6 § 1 of the Convention in the present case. 3. When assessing the approach of the Supreme Court in examining the applicant’s request for a reopening of criminal proceedings, the majority finds this approach to be compatible with Article 6 § 1 of the Convention. I cannot share that view. 4.", "The Supreme Court did not provide any substantive reasoning as to why, in its view, the applicant’s conviction was not irreconcilable with the judgment of the Court. This is in itself hardly compatible with the requirements of Article 6 § 1 of the Convention. Moreover, the Supreme Court relied on a reading of the Court’s judgment of 5 July 2011 which is manifestly inconsistent with its real meaning. While the Court indicated that it could not “speculate as to what the outcome of the proceedings before the (Oporto) Court of Appeal would have been if it had examined the applicant at a public hearing”, the Supreme Court interpreted this indication as meaning that the Court’s judgment could not raise any doubts regarding the applicant’s conviction. 5.", "This interpretation is all the more unacceptable in the light of the main arguments advanced by the Court in its judgment. The Court in fact noted that the Court of Appeal was called on to examine several questions relating to facts as well as to the applicant’s personal characteristics, and in particular the issue of her asserted diminished capacity, which in turn could have had a decisive influence on the determination of the sanction. In the Court’s view, this question could not be resolved without direct examination of the applicant’s testimony (see paragraphs 33 and 34 of the judgment). In line with those arguments, it is clear that the violation in question could only be entirely set aside by reopening the proceedings before the Court of Appeal, which had to include a hearing of the applicant. 6.", "In his dissenting opinion, Judge Pinto de Albuquerque, joined by several other dissenters, analyses the Court’s case-law to conclude, inter alia, that the Court holds the power to order a reopening of criminal proceedings in a particular case if a violation of Article 6 of the Convention is found. Be that as it may, it should be seen as undisputed that national authorities may not resort to a manifestly incorrect reading of the law, let alone of fundamental sources of human rights law such as this Court’s judgments. Since in the present case the Supreme Court did just that, the violation of Article 6 § 1 of the Convention is evident. [1] Regarding the nature of the requisite measures to execute judgments finding a violation of the Convention and the European Court’s current practice in that sphere, see Alastair Mowbray, An Examination of the European Court of Human Rights; Indication of Remedial Measures, Human Rights Law Review, not yet published. [2] This interpretation is in complete conformity with the Explanatory Report to Protocol no.", "14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the supervisory system of the Convention, 13 May 2004, Strasbourg, pp. 18 and 19. [3] As stated in the Sixth Annual Rapport of the Committee of Ministers 2012, entitled “Supervision of the execution of judgments and decisions of the European Court of Human Rights”, Council of Europe, April 2013, which mentions “increased interaction between the European Court and the Committee of Ministers” (p. 28), and the statement by Judge Linos-Alexandre Sicilianos entitled “The role of the Court in the implementation of its judgments, powers and limits” in the framework of the “Dialogue between Judges, European Court of Human Rights, Council of Europe, 2014”, pointing out that “[o]ver the past decade the Court has … delivered some 150 judgments referring to Article 46 of the Convention and concerning the execution process” (p. 19). [4] Re. the VgT (no.", "2) and Emre (no. 2) judgments cited above, see Maya Hertig Randall/Xavier-Baptiste Ruedin, “Judicial activism and Implementation of the Judgments of the European Court of Human Rights”, Revue trimestrielle des droits de l’homme 2010, no. 82, pp. 421-443; Maya Hertig Randall, Commentary on the Emre (no. 2) judgment of 11 October 2011 of the European Court of Human Rights, Pratique juridique actuelle 2012, no.", "4, pp. 567-573, respectively. [5] See the concurring opinion of Judge Keller on the Sidabras and Others v. Lituanie judgment (23 June 2015, nos. 50421/08 and 56213/08). [6] In this opinion, these words are used interchangeably.", "[7] See Moreira Ferreira v. Portugal, no. 19808/08, 5 July 2011. [8] See paragraph 48 of the judgment. [9] For an early example, Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31.", "[10] For some early examples of full reparation see Neumeister v. Austria (Article 50), no. 1936/63, §§ 40- 41, 7 May 1974, and for partial reparation see Van Mechelen and Others v. The Netherlands (Article 50), nos. 21363/93, 21364/93, 21427/93, § 16, 30 October 1997. [11] See Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, §§ 11-12.", "The Court chose the wider concept of restitutio in integrum, which requires the hypothetical inquiry into what the situation would have been if the wrongful act had not been committed. The less demanding concept of restitution, which aims at the establishment of the situation that existed prior to the occurrence of the wrongful act, was rejected (see the commentary on Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (DARSIWA), paragraph 2). It should be added that the commentary of Article 36 of the DARSIWA, paragraph 19, states that “the decisions of human rights bodies on compensation draw on principles of reparation under general international law.” Hence, the DARSIWA doctrine on reparation and especially of its Articles 34-37 must be taken into consideration in the interpretation of the Convention. [12] See Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX.", "[13] See Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI. [14] See Papamichalopoulos v. Greece (Article 50), no. 14556/89, § 38, 31 October 1995.", "The operative part replicated the obligation included in the reasoning. Failing such restitution, the respondent State was ordered to pay a certain amount to the applicant. See also Ramadhi and Others v. Albania, no. 38222/02, § 102, 13 November 2007. [15] See Brumarescu v. Romania (Article 41), no.", "28342/95, § 22, 23 January 2001; Hirschhorn v. Romania, no. 29294/02, § 114, 26 July 2007; and Katz v. Romania, no. 29739/03, § 42, 20 January 2009. In all these cases the operative part replicated the obligation included in the reasoning of the judgment under Article 41. Failing such restitution, the respondent State was ordered to pay a certain amount to the applicant.", "[16] See Assanidze v. Georgia [GC], no. 71503/01, § 203, ECHR 2004-II. The language used was imperative (“must secure…at the earliest possible date”) and the obligation imposed under Article 41 was repeated in point 14 (a) of the operative part of the judgment. See also Ilaşcu v. Moldova and Russia (GC), no. 48787/99, § 490, ECHR 2004-VII, and point 22 of the operative part of the judgment; Fatullayev v. Azerbaijan, no.", "40984/07, § 177, 22 April 2010, and point 6 of the operative part; and Del Rio Prada v. Spain [GC], no. 42750/09, § 138, ECHR 2013, and point 3 of the operative part. In the latter two cases, the order was imposed under Article 46. [17] See Maestri v. Italy, no. 39748/98, § 47, 17 February 2004.", "In spite of the language used (“it is for the respondent State to take appropriate measures to redress the effects of any past or future damage to the applicant's career”), no reference was made in the operative part to the obligation imposed in the reasoning of the judgment under Article 41. [18] See Aleksanyan v. Russia, no. 46468/06, § 239, 22 December 2008. The language used was imperative (“must replace”) and the obligation imposed in the reasoning section under Article 46 was included in point 9 of the operative part of the judgment. [19] See Scoppola v. Italy (no.", "2) (GC), no. 10249/03, § 154, 17 September 2009. The language used was imperative (“is responsible for ensuring that”) and the obligation imposed under Article 46 was repeated in point 6 (a) of the operative part of the judgment. [20] See Abuyeva and Others v. Russia, no. 27065/05, § 243, 2 December 2010.", "In spite of the language used (“it considers it inevitable that … must be determined”), the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 46. See also Benzer and Others v. Turkey, no. 23502/06, § 219, 12 November 2013. [21] See Nihayet Arıcı and Others v. Turkey, 24604/04 and 16855/05, § 176, 23 October 2012. The language was imperative (“doit mettre en oeuvre…dans les plus brefs délais”), but the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 41.", "[22] See Hirsi Jamaa and Others v. Italy (GC), no. 27765/09, § 211, ECHR 2012-II. In spite of the language used (“must take”), the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 46. [23] See Oleksandr Volkov v. Ukraine, no. 21722/11, § 208, ECHR 2013-I.", "The language used was imperative (“shall secure … at the earliest possible date”) and the obligation imposed in the reasoning of the judgment under Articles 41 and 46 was repeated in point 9 of the operative part. Yet the Court did not follow this case-law in Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, § 148, 19 January 2017. [24] See Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003.", "[25] See Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV. [26] See Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‑IV. [27] This clause is also known as the Oçalan-Sejdovic clause since it was confirmed and further developed in Sejdovic v. Italy [GC], no.", "56581/00, § 86, ECHR 2006‑II. See also Abbasov v. Azerbaijan, no. 24271/05, § 42, 17 January 2008, and Laska and Lika v. Albania, nos. 12315/04 and 17605/04, § 76, 20 April 2010. [28] In spite of the Grand Chamber’s intervention in Öçalan v. Turkey and two years later in Sejdovic v. Italy, the practice of the Court remained uncertain as it is evidenced by the fact that several chambers retained the former Gençel clause, as it will be shown below.", "To aggravate this uncertainty, the Grand Chamber went back again to the Gençel clause under Article 41 of the Convention in Salduz v. Turkey (GC), no. 36391/02, § 72, 27 November 2008, and in Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010, it used the Gençel clause, but wrongly cited the Oçalan precedent. [29] See Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no.", "32772/02, § 90, ECHR 2009. [30] See also Wasserman v. Russia (no. 2), no. 21071/05, § 37, 10 April, 2008, and Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 86 and 95-96, 15 November 2011.", "[31] Following a finding of a breach of the right of access to court, the Oçalan-Sejdovic clause was used in Perlala v. Greece, no. 17721/04, § 36, 22 February 2007, but the Gençel-Somogyi clause was used in Kostadin Mihaylov v. Bulgaria, no. 17868/07, § 60, 27 March 2008, and in Demerdžieva and Others v. the former Yugoslav Republic of Macedonia, no. 19315/06, § 34, 10 June 2010. In a case with the same subject matter where the annulation of the trial had been requested, the Court did not order the retrial (see De la Fuente Ariza v. Spain, no.", "3321/04, § 31, 8 November 2007). [32] The Gençel-Somogyi formula was used mutatis mutandis in Claes and Others v. Belgium, nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, § 53, 2 June 2005, Lungoci v. Romania, no. 62710/00, 26 January 2006, and Ilatovskiy v. Russia, no. 6945/04, § 49, 9 September 2009 (wrongly cites the Oçalan case).", "[33] Other than the Turkish State Security Court cases, the Oçalan-Sejdovic clause appeared in cases referring to the conviction of a civilian by a military jurisdiction following the leading case Ergin v. Turkey (no. 6), no. 47533/99, ECHR 2006, § 61. But in some other cases, referring to the same subject matter, the Court did not apply the retrial clause (see Karatepe v. Turkey, no. 41551/98, § 37, 31 July 2007, Hûseyin Simsek v. Turkey, no.", "68881/01, § 83, 20 May 2008). In these cases, the applicant had benefitted from conditional release before the adoption of the Court’s judgment. Nonetheless, release of the applicant cannot be considered a ground for not applying the retrial clause, because the Court has also applied the retrial clause in cases where the imprisonment sentence had being suspended (see Kenar v. Turkey, no. 67215/01, § 50, 13 December 2007, and Zekeriya Sezer v. Turkey, no. 63306/00, § 32, 29 November 2007).", "[34] Following a finding of a breach of the right to participate in the trial, the Gençel-Somogyi clause was used in R.R. v. Italy, no. 42191/02, § 76, 9 June 2005, but later abandoned in favour of the Oçalan-Sejdovic clause in Hu v. Italy, no. 5941/04, § 71, 28 November 2006, Csikos v. Hungary, no. 37251/04, § 26, 5 December 2006, Kollcaku v. Italy, no.", "25701/03, § 81, 8 February 2007, Pititto v. Italy, no. 19321/03, § 79, 12 June 2007, Kunov v. Bulgaria, no. 24379/02, § 59, 23 May 2008, and Georghe Gaga v. Romania, no. 1562/02, § 68, 25 March 2008. In a case with the same subject matter the Court did not apply the retrial clause at all (Da Luz Domingues Ferreira v. Belgium, no.", "50049/99, 24 May 2007). [35] Following a finding of a breach of the right to question witnesses, the Oçalan clause was used in Bracci v. Italy, no. 36822/02, § 75, 13 October 2005, Vaturi v. France, no. 75699/01, § 63, 13 April 2006, Zentar v. France, no. 17902/02, § 35, 13 April 2006, Balšán v. the Czech Republic, no.", "1993/02, § 40, 18 July 2006 (wrongly cites the Somogyi case), Reiner and Others v. Romania, no. 1505/02, § 93, 27 September 2007 (wrongly cites the Gençel case), but the Gençel clause was used in Majadallah v. Italy, no. 62094/00, § 49, 19 October 2006, Popov v. Russia, no. 26853/04, § 263, 13 July 2006 (wrongly cites the Oçalan case), Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010 (wrongly cites the Oçalan case), and Duško Ivanovski v. the Former Yugoslav Republic of Macedonia, no.", "10718/05, § 64, 24 April 2014. [36] See Spinu v. Romania, no. 32030/02, § 82, 29 April 2008. [37] See Miraux v. France, no. 73529/01, § 42, 26 September 2006, and Drassich v. Italy, no.", "25575/04, § 46, 11 December 2007. [38] See Mattei v. France, no. 34043/02, § 51, 19 December 2006. [39] See Ünel v. Turkey, no. 35686/02, § 55, 27 May 2008.", "Other than the refusal of questioning of certain witnesses, the applicant complained of lack of access to certain items of evidence, like an audio record of his detention. [40] The Oçalan-Sejdovic clause was used in Sannino v.Italy, no. 30961/03, § 70, 27 April 2006, Kemal Kahraman and Ali Kahraman v. Turkey, no. 42104/02, § 44, 26 April 2017, and Sacettin Yildiz v. Turkey, no. 38419/02, § 55, 5 June 2007, but the Gençel-Somogyi clause was used in Salduz v. Turkey (GC), no.", "36391/02, § 72, 27 November 2008, and Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008. [41] See Malininas v. Lithuania, no. 10071/04, § 43, 1 July 2008. [42] See Huseyn and Others v. Azerbaijan, nos.", "35485/05, 45553/05, 35680/05 and 36085/05, 4§ 213 and 262, 26 July 2011. [43] See Abuyeva and Others, cited above. [44] See Dragotoniu and Militaru-Pidhorni v. Romania, no. 77193/01 and 77196/01, § 55, 24 May 2007, which also refers to Article 408 of the criminal procedure code. [45] See Yanakiev v. Bulgaria, no.", "40476/98, § 90, 10 August 2006, Paulik v. Slovakia, no. 10699/05, § 72, 10 October 2006, Mehmet et Suna Yigit v. Turkey, No. 52658/99, § 47, 17 July 2007, CF Mrebeti v. Georgia, no. 38736/04, § 61, 31 July 2007, Paykar Yev Haghtanak v. Armenia, no. 21638/03, § 58, 20 December 2007, Cudak v. Lithuania (GC), no.", "15869/02, § 79, 23 March 2010, Kostadin Mihailov v. Bulgaria, no. 17868/07, § 60, 27 March 2008, Vusic v. Croatia, no. 48101/07, § 58, 1 July 2010, Bulfracht Ltd v. Croatia, no. 53261/08, § 46, 21 June 2011, and Vojtěchová v. Slovakia, no. 59102/08, §§ 27 and 48, 25 September 2012.", "[46] Freitag v. Germany, no. No. 71440/01, § 61, 19 July 2007. The case cites Sejdovic, cited above, § 119, and Monnat v. Switzerland, no. 73604/01, § 84, ECHR 2006, in which the Court had refused to lift a ban on the sale of the report in issue which had been found in breach of Article 10 of the Convention.", "[47] See Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010; Putter v. Bulgaria, no. 38780/02, § 62, 2 December 2010; and Kardoš v. Croatia, no. 25782/11, § 67, 26 April 2016.", "[48] See Vojtěchová v. Slovakia, no. 59102/08, §§ 27 and 48, 25 September 2012; Harabin v. Slovakia, no. 58688/11, §§ 60 and 178, 20 November 2012; and Zachar and Čierny v. Slovakia, nos. 29376/12 and 29384/12, § 85, 21 July 2015. [49] See, for example, Hu, cited above, § 71, or Sacettin Yildiz, cited above, § 55, and Flueraş v. Romania, no.", "no 17520/04, 9 April 2013 (wrongly cites the Gençel case). [50] See, for example, Karelin, cited above, § 97, Scoppola, cited above, § 154, and Oleksandr Volkov, cited above, § 206. [51] See Lungoci v. Romania, no. 62710/00, 26 January 2006. The same occurred in Ajdarić v. Croatia, no.", "20883/09, 13 December 2011. [52] See Maksimov v. Azerbaijan, no. 38228/05, 8 October 2009, and Claes and Others, cited above. [53] See Gladysheva v. Russia, no. 7097/10, § 106, 6 December 2011, and Anna Popova v. Russia, no.", "59391/12, § 48, 4 October 2016. [54] See Ponyayeva and Others v. Russia, no. 63508/11, § 66, 17 November 2016; Alentseva v. Russia, no. 31788/06, § 86, 17 November 2016; and Pchelintseva and others v. Russia, no. 47724/07, § 110, 17 November 2016.", "[55] See Gluhaković v. Croatia, no. 21188/09, § 89, 12 April 2011, Plotnikovy v. Russia, no. 43883/02, § 33, 24 February 2005, and Makarova and others v. Russia, no. 7023/03, § 37, 24 February 2005. Yet in the exact similar situation in OOO Rusatommet v. Russia, no.", "61651/00, § 33, 14 June 2005, the Court refrained from doing the same. [56] See Laska and Lika v. Albania, nos. 12315/04 and 17605/04, § 76, 20 April 2010. Confronted with a similar systemic problem in Karelin v. Russia, no. 926/08, 20 September 2016, the Court did not follow the same approach.", "[57] This case is different from Klaus and Iouri Kiladzé v. Georgia, no. 7975/06, §§ 85 and 90, 2 February 2010, which established compensation as an alternative to the adoption of general measures. In Ürper and Others v. Turkey, nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 et 54637/07, § 52, 20 October 2009, and Gözel and Öser v. Turkey, nos. 43453/04 and 31098/05, § 76, 6 July 2010, the Court ordered the introduction of legislative, ie, general measures, in addition to compensation.", "[58] See M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 402, ECHR 2011. [59] This was the Court’s position even when it used to distinguish the decision on the merits and the decision on just satisfaction (see Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994, Series A no. 285-C, p. 56, para.", "15, and Schuler-Zgraggen v. Switzerland (Article 50), no. 14518/89, §§ 14 and 15, 31 January 1995). At present, just satisfaction has been accorded even when a retrial clause has been included in the operative part of the judgment (see Lungoci, cited above). [60] See Bocos-Cuesta v. the Netherlands, no. 54789/00, § 82, 10 November 2005; Kaste and Mathisen v. Norway, no.", "nos. 18885/04 and 21166/04, § 61, 9 November 2006; Vusic v. Croatia, no. 48101/07, § 58, 1 July 2010; and Bulfracht Ltd v. Croatia, no. 53261/08, § 47, 21 June 2011. [61] See Caes and Others, cited above.", "[62] See Taxquet v. Belgium (GC), no. 926/05, § 107, 16 November 2010; Delespesse v. Belgium, no. 12949/05, § 44, 27 March 2008; Nikolitsas v. Greece, no 63117/09, § 47, 3 July 2014; and Mitrov v. v. the former Yugoslav Republic of Macedonia, no. 25703/11, § 64, 2 June 2016. [63] See Dvorski v. Croatia (GC), no.", "25703/11, § 117, 20 October 2015. [64] See paragraph 53 of the judgment. [65] See paragraph 28 of the judgment. [66] The logical and ontological link between restitutio in integrum and reopening of criminal proceedings was already established in Piersack v. Belgium (Article 50), cited above, § 11. It is noteworthy that in this case reopening led to a sentence identical to that originally imposed.", "Nonetheless, the Court found that the second domestic proceedings “brought about a result as close to restitutio in integrum as was possible in the nature of things”, since the new trial before the assize court was attended by all the guarantees laid down by the Convention. [67] In this sense, see Article 34 of DARSIWA and the respective Commentary, paragraph 2. [68] In this precise sense, see the commentary to Article 35 of the DARSIWA, paragraph 3. [69] See the Explanatory Report to the Recommendation. [70] See paragraph 16 of the judgment.", "[71] See paragraph 17 of the judgment. [72] For the purposes of this opinion , I have consulted all legislations of the member States of the Council of Europe and double-checked the information with the “Compilation of written contributions on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court” of 31 March 2016 (DH-GDR(2015)002REV), prepared by the Steering Committee for Human Rights (CDDH) and Committee of Experts on the Reform of the Court (DH-GDR), as well as the materials available before the Grand Chamber. [73] Having been introduced by Law no. 16/2014, of 27 July 2014, these provisions have not been applied to date. [74] Remarkably, in its judgment of 1 August 2007 the Austrian Supreme Court expanded its power to reopen criminal proceedings.", "In this case, the Supreme Court applies the admissibility criteria of Articles 34 and 35 of the Convention analogously. [75] See among others the Belgium Court of Cassation decision P.08.05 F, 9 April 2008. [76] In addition, lower levels of government in Bosnia and Herzegovina also provide for the right to reopening where the European Court of Human Rights found a violation of human rights and where the domestic court judgment was based on that violation (Criminal Procedure Code of the Federation of BiH, Article 343 § 1 (f); Criminal Procedure Code of the Republika Srpska, Article 342 § 1 (đ); Criminal Procedure Code of Brčko District, Article 327 § 1 (f). Following the Court’s judgment in Maktouf and Damjanovic, the respective criminal proceedings were reopened. [77] See the Croatian Constitutional Court decision no.", "U-III -3304/2011 of 23 January 2013, which set out the criteria for the assessment of a request for reopening of the proceedings on the basis of a finding of a violation of the Convention by the Court. [78] In the Czech Republic, the reopening of proceedings after the judgment of the Court is available in cases in which the Constitutional Court has given its decision. Under section 119 of the Act on the Constitutional Court (no. 182/1993), the applicant can request a reopening of the proceedings before the Constitutional Court if the Court considered that his or her rights have been violated. On the domestic case-law see Compilation, cited above, p. 15.", "[79] There have been no requests to the Supreme Court under this law thus far. The law was enacted for complying with the Court’s judgments in two instances (see Kyprianou v. Cyprus and Panovitz v. Cyprus). [80] On the domestic case-law see Compilation, cited above, p. 67. [81] On the domestic case-law see Compilation, cited above, pp. 37-42.", "[82] See the reopening of proceedings following the leading case Taktakishvili v. Georgia (dec.), no. 46055/06, 16 October 2012, and Sulkan Molashvili v. Georgia (dec.), no. 39726/04, 30 September 2014. [83] There is no legal presumption of a causal connection between a violation of basic procedural rights guaranteed by the Convention and a final judgment (see the Federal Constitutional Court decision of 12 January 2000). For example, in the Gäfgen case, the Higher Regional Court of Frankfurt rejected the reopening of the proceedings, because, in its view, the violation of the Convention in course of investigation proceedings had no impact on the final conviction by the contested judgment, since the domestic conviction had been based on the confession of the accused during the trial (Frankfurt Higher Regional Court, decision of 29 June 2012).", "[84] On domestic case-law, see the Greek Supreme Court judgments nos. 159/2005, 2214/2005, 1566/2010 and 1613/2010. [85] See, for example, the Supreme Court judgments of reopening of domestic proceedings in Vajnai v. Hungary, Fratanolo v. Hungary and Magyar v. Hungary cases. [86] On the domestic case-law see Compilation, cited above, pp. 55-56.", "[87] On the domestic case-law see Compilation, cited above, p. 60. [88] See for example the judgment of the Court of Cassation of 9 June 2016 (n° 26/16 pén., n° 3742). [89] On the domestic case-law see Compilation, cited above, p. 64. [90] See for example the Supreme Court judgment of 7 September 2016 following the Kristiansen v. Norway judgment. [91] See the Polish Supreme Court interpretative resolution of 26 June 2014 and other case-law in Compilation, cited above, pp.", "71-72. [92] On the domestic case-law see Compilation, cited above, pp. 80-82. [93] As amended by the Law of 24 February 2000, no. 20, and subsequently by the Law of 27 June 2003, no.", "89. There has been only one case where reopening was ordered, following the Tierce v. San Marino judgment. [94] See for example the successful reopening following the Zachar and Čierny judgment (CM/ResDH(2016)294). [95] On the domestic case-law see Compilation, cited above, p. 107, and especially the Constitutional Court leading judgment no. 245/1991, 16 December 1991, following the Barberà, Messegué and Jabardo v. Spain judgment.", "See also the Supreme Court non-jurisdictional agreement of 21 October 2014 and its judgments no. 145/2015, 12 March 2015, following the Almenara Alvarez v. Spain judgment. [96] On the domestic case-law see Compilation, cited above, p. 116, and especially the Swiss Federal Court judgment no. 6S.362/2006 of 3 November 2006. [97] See for example Oçalan v. Turkey (dec.), no.", "5980/07, 6 July 2010, and Erdemli v. Turkey (dec.), no. 33412/03, 5 February 2004. [98] See for example Yaremenko v. Ukraine (no. 2), no. 66338/09, 30 April 2015, and the reopening procedure following the Zhyzitskyy v. Ukraine judgment.", "[99] See Article 456 of the Code of Criminal Procedure of the Republic of Azerbaijan. The Government have discretion in requesting reopening, the Plenum of the Supreme Court being obliged to reopen a case within three month after it receives the relevant copy of the final judgment of the Court. The victim of the human rights violation has no right to request reopening. [100] On the domestic case-law see Compilation, cited above, pp. 86-87.", "The Plenum of the Supreme Court, in its ruling No. 21 of 27 June 2013, underlined that, when considering whether it is necessary to re-examine a judgment, the causal link between the established violation of the Convention and the continuous adverse consequences suffered by the applicant should be taken into account. In its decision of 6 December 2013, the Constitutional Court of Russia emphasised that “a court of general jurisdiction cannot refuse to reopen a judicial decision, which has become final, as a procedural stage due to a judgment of the European Court of Human Rights.” More recently, the Constitutional Court of Russia decision of 14 January 2016 dictated that “If [the Court] has found a violation of the Convention, in particular, because a final criminal judgment was unfair as a result of a substantial judge’s mistake that affects the essence of the judgment, and thus this judgment should be re-examined, the President of the Supreme Court is under obligation to lodge a correspondent application [for re-examination].” The victim of the human rights violation has no right to request reopening. [101] In Albania, the Constitutional Court has recognised, on the basis of the interpretation of Articles 10 and 450 of the Code of Criminal Procedure, the power of the Supreme Court to order re-examination of final decisions which are based on the Court’s findings. On the domestic case-law see Compilation, cited above, pp.", "3-4. [102] Under section 977 (1), of the Danish Administration of Justice Act a convicted person can request a reopening of criminal proceedings if special circumstances strongly indicate that evidence has not been rightly judged. In fact, the Jersild judgment of the Court led to the reopening of proceedings by virtue of being considered a “special circumstance” (see Resolution DH (95) 212)). The practice has been restrictive, since reopening in these circumstances was ordered only in another case. [103] Chapter 31, section 1, sub-section 1, sub-paragraph 4, and section 8 and section 8 (a) of the Finish Code of Judicial Procedure.", "The Supreme Court practice has been varied, but the leading decision of the Supreme Court of 24 May 2012 referred to Recommendation 2000 (2) (see Compilation, cited above, pp. 27-29). [104] Reopening can be requested if there have been material defects in the proceedings that have affected the outcome of the case. The criteria for reopening criminal proceedings are governed by the Act on Criminal Procedure (sections 211 and 215), namely new evidence has come into light that would have been considered to have great importance for the outcome of the case if they would have been available before the final judgment was delivered. For example, domestic proceedings were reopened following the Arnarsson v. Iceland judgment.", "[105] In Ireland, any applicant who has obtained a finding of a violation of Article 6 falls within the provisions of section 2 of the Criminal Procedure Act 1993, which allows a convicted person who alleges a new or newly-discovered fact shows that there has been a miscarriage of justice to apply to the Court of Criminal Appeal for an order quashing his or her conviction. In fact, following the Court judgment in Quinn v. Ireland, the High Court quashed the conviction on that basis. This is the sole such example. [106] In its judgment no. 113 of 4 April 2011, the Italian Constitutional Court established that Article 630 of the Code of Criminal Procedure was illegitimate, insofar as it did not include, among the cases of revision of a judgment or of a decree, the reopening of the criminal proceedings subsequent to a finding of a violation of the Convention by a final judgment of the Court.", "But before this judgment, the Supreme Court had already admitted the re-examination or reopening of criminal proceedings following Court judgments, namely on the basis of Article 670 of the Code of Criminal Procedure. See as examples the Court of Cassation judgments no. 2800/2006, in the Dorigo case, and no. 4463/2011, in the Labita case, the former before the Constitutional Court intervention and the latter after it. [107] The Swedish Supreme Court has found, in its judgment of 13 July 2013, that reopening could be granted in certain situations based on Article 13 of the Convention and Swedish procedural law.", "This could be the case in situations where re-opening is considered a substantially more adequate measure of just satisfaction than other available measures, provided that the violation in question is of a serious nature. [108] Under section 13 of the Criminal Appeal Act 1995, the Criminal Cases Review Commission will refer the case to the Court of Appeal when Commission considers “that there is a real possibility that the conviction would not be upheld were the reference to be made”. After the Salduz ruling, the criteria for a reference by the Scottish Criminal Cases Review Commission were changed (section 194 C (2) of the Criminal Procedure (Scotland) Act 1995 as amended). [109] Nevertheless, in its 2008 report the CDDH also included Malta, Ireland and the United Kingdom among the member States where the reopening of criminal proceedings was possible (CDDH(2008)008 Add. I, § 8).", "[110] In the past, under the previous Code of Criminal Procedure, there have been only two cases of reopening of criminal proceedings following the Court’s judgments in Stanimirovic v. Serbia and Hajnal v. Serbia. [111] See Article 408 of the Armenian Code of Criminal Procedure. [112] See Article 416 of the Slovenian Code of Criminal Procedure. There was no practice of reopening criminal proceedings following a Court judgment until recently (Compilation, cited above, p. 96), but see the Slovenian Constitutional Court decision no. U-I-223/09, Up-140/02 of 14 April 2001, on reopening of civil proceedings.", "[113] Committee of Experts on the reform of the Court (DH-GDR): Overview of the exchange of views held at the 8th meeting of DH-GDR on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court, p. 4, para. 8. After the judgment Steck-Risch and others v. Liechtenstein, no. 63151/00, the applicants asked for a reopening of the national proceedings. The domestic courts refused to grant that, which led to Steck-Risch v. Liechtenstein (No.", "2). This application was declared inadmissible. [114] See the Supreme Court’s interpretation of Article 449 § 1 g) in its leading judgment of 27 May 2009. [115] As a circumstance which should be taken into account when considering whether it is necessary to re-examine a judgment, according to ruling no. 21 of 27 June 2013 of the Plenum of the Russian Supreme Court.", "[116] One of the possible grounds for reopening according to Swedish case-law is that the measure is necessary to discontinue a deprivation of liberty that amounts to a violation of the individual’s rights. See decision of the Supreme Court of 13 July 2013. [117] See the Supreme Court’s leading judgment of 27 May 2009. [118] Reopening following the judgment Xheraj v. Albania, 29 July 2008. [119] Reopening following the judgment Fraumens v. France, 10 January 2013.", "[120] Reopening following the judgments Popovici v. Moldova, 27 November 2007, and Almenara Alvarez v. Spain, 25 October 2011. [121] Reopening following the judgment Taal v. Estonia,22 November 2005. [122] Reopening following the judgment Lalas v. Lithuania, 1 March 2011. [123] Reopening following the judgment A.P., M.P. and T.P.", "v. Switzerland, 29 August 1997. [124] Lichtenstein has no possibility of reopening criminal proceedings on the basis of a Court judgment, and Azerbaijan and Russia have such a possibility, but no individual right on the part of the victims of human rights violation to a reopening of proceedings. [125] See, inter alia, Zawadzki v. Poland (dec.), no. 34158/96, 6 July 1999, and Sablon v. Belgium, no. 36445/97, § 86, 10 April 2001.", "[126] See Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 50, 5 February 2015. [127] See Yaremenko v. Ukraine (no. 2), cited above.", "[128] See paragraph 65 of the judgment. [129] See paragraph 72 of the judgment. [130] This is in line with the position of the Committee of Ministers Resolution DH (2004) 31 in the case Sadak, Zana, Dogan and Dicle v. Turkey, according to which States have to guarantee the principle of the presumption of innocence and the principles concerning provisional detention during the reopening procedure. In other words, Article 5 and 6 of the Convention apply after the decision to reopen a criminal procedure. [131] See, inter alia, Mehemi v. France (no.", "2), no. 53470/99, § 43, ECHR 2003‑IV, and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], cited above, § 62. [132] See Emre v. Switzerland (no. 2), no.", "5056/10, 11 October 2011. [133] See Emre v. Switzerland, no. 42034/04, 22 May 2008. [134] See Emre v. Switzerland (no. 2), cited above, § 75.", "[135] See paragraph 70 of the judgment. [136] See paragraph 60 (b) of the judgment. [137] See paragraph 69 of the judgment. [138] See paragraph 43 of the judgment. [139] See paragraph 72 of the judgment.", "[140] See for example, Supreme Court judgments of 17 June 2015, domestic proceedings no. 157/05.4JELSB-O.01, and of 26 March 2014, domestic proceedings no. 5918/06.4TDPRT.P1. [141] See paragraph 72 of the judgment. [142] The argumentation of the majority in paragraphs 69 and 72 is a textbook example of the “slippery-slope” line of argumentation.", "The majority initially interpret the Supreme Court’s task in accordance with Article 449 § 1 (g) of the Code of Criminal Procedure as “ordering” the re-examination, go on to admit that the Supreme Court decision “is likely to be decisive” for the new determination of the criminal charge and reach the conclusion that the Supreme Court “focused on the determination”. [143] By so doing, the majority contradict the established case-law (Jeronovics v. Latvia (GC), no. 44898/10, § 120, ECHR 2016). [144] See paragraphs 29 and 30 of the judgment. [145] Commentary to Article 35 of DARSIWA, paragraph 8: “restitution is not impossible merely on grounds of legal or practical difficulties, even though the responsible State may have to make special efforts to overcome these.", "Under Article 32 (of DARSIWA) the wrong-doing State may not invoke the provisions of its national law as justification for failure to provide full reparation”. [146] Paragraph 90 of the judgment. [147] In the assessment of the Court’s own case-law, the majority of the Grand Chamber do not distinguish between the right to a reopening in general and the right to a reopening following a Court’s finding of a Convention violation. [148] See paragraph 53 of the judgment. [149] See paragraph 53 of the judgment.", "[150] See paragraph 91 of the judgment. [151] See paragraphs 53 and 91 of the judgment. [152] See paragraph 96 of the judgment. [153] See paragraph 93 of the judgment. [154] See paragraphs 95 and 98 of the judgment.", "It could be discussed here if the margin of appreciation is even applicable to the reopening of criminal proceedings, since this issue is regulated by a non-derogable provision (Article 3 Protocol 7 (3)). In a wholly contradictory manner, this lack of any discretion in interpreting Article 449 was actually acknowledged by the majority of the Grand Chamber (see paragraph 69 of the judgment). [155] See Moreira Ferreira, cited above, § 33. [156] See Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 90.", "[157] It should be noted in this connection that the Spanish Supreme Court, in its judgment no. 145/2015, cited above, took a very different, more human rights-friendly position in a similar set of circumstances by ordering a reopening of the domestic proceedings after a finding in Almenara Alvarez v. Spain of a violation of Article 6 of the Convention for the lack of a public hearing before the second-instance court which convicted the applicant. [158] See paragraphs 16 and 17 of the judgment. [159] The Government argued before the Court that reopening would in the instant case have no practical consequences, since the sentence had already been served and, for that reason, was extinguished. This argument cannot be upheld.", "Article 449 § 4 of the Code of criminal procedure specifically allows for reopening even if the sentence has already been served in full. The Government also informed the Committee of Ministers that they had approved a proposal for a reform of the Portuguese Code of criminal procedure in order to redress the type of shortcomings identified in Moreira Ferreira. In fact, that proposal was never presented to Parliament (see paragraph 22 of the judgment). [160] See paragraphs 90 and 96 of the judgment. [161] See paragraph 98 of the judgment.", "[162] See Benthem v. the Netherlands, no. 8848/80, § 40, 23 October 1985, where the Court stated that “a power of decision is inherent in the very notion of ‘tribunal’ within the meaning of the Convention”. [163] As one see, inter alia, from the “Compilation of written contributions on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court” of 31 March 2016, prepared by Steering Committee for Human Rights and Committee of Experts on the Reform of the Court, extensively cited in Judge Pinto de Albuquerque’s dissenting opinion. [164] I do not wish to enter here into analysis of the Supreme Court’s interpretation of domestic legislative provisions and the Court’s assessment of that interpretation. Still, I must say, albeit incidentally, that I am sceptical about the conclusion that these provisions indeed allowed for the non-reopening of proceedings.", "In my opinion, the provisions, taken together with the Court’s judgment of 5 July 2011 (especially paragraph 41 thereof) and Recommendation No. R (2000) 2 (as well as the explanatory memorandum thereto, with its strong emphasis on the principle of equality of arms; see paragraph 33 of the judgment), required the proceedings to be reopened. [165] Or even without a court procedure at all, that is to say, by a legislative, i.e. political, act? See, for example, the recent judgment in Béres and Others v. Hungary (nos.", "59588/12, 59632/12 and 59865/12, 17 January 2017)." ]

[ "FOURTH SECTION CASE OF M.S. v. THE UNITED KINGDOM (Application no. 24527/08) JUDGMENT This version was rectified on 11 May 2012 under Rule 81 of the Rules of Court STRASBOURG 3 May 2012 FINAL 03/08/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.S.", "v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,David Thór Björgvinsson,Nicolas Bratza,Päivi Hirvelä,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 7 December 2010 and on 10 April 2012, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 24527/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, M.S. (“the applicant”), on 9 May 2008.", "The President of the Chamber decided not to have the applicant’s name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant, who had been granted legal aid, was represented by Mr P. Carlin, a solicitor with Peter Edwards Law, a law firm at Hoylake, Wirral. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan, of the Foreign and Commonwealth Office, London. 3.", "The applicant alleged violations of Articles 3 and 13 of the Convention. 4. By a decision of 7 December 2010, the Court declared the application admissible. 5. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits, and each replied in writing to the other’s observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1970. At the time of filing his application, he was resident in a psychiatric clinic. According to an expert report drawn up during the domestic proceedings in this case, the applicant has a diagnosis of mental impairment and, prior to the facts giving rise to this case, had been admitted to psychiatric hospitals twice.", "He also had a number of convictions against him, including for indecent assault, burglary and theft. 7. The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicant’s detention 8.", "In the early hours of 6 December 2004, police in Birmingham were called out to deal with the applicant, who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner. He was arrested at 4.20 a.m. and transferred to a police station, where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required. His detention was authorised under section 136 of the Mental Health Act 1983 (see paragraph 28 below). The police also went to the applicant’s address, where they found his aunt with serious and extensive injuries to her face and upper body, inflicted by the applicant. She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung.", "9. The applicant was examined in his cell at approximately 5 a.m. by the Forensic Medical Examiner, Dr T. In view of the applicant’s behaviour, speech and appearance, he assessed him as not fit to be interviewed or charged with any criminal offence. A formal assessment under the Mental Health Act 1983 was requested. This was done at approximately 7 a.m. by the psychiatric specialist registrar on call, Dr O. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons.", "10. A second assessment was carried out shortly after 11 a.m. by another psychiatric specialist, Dr. O’D. He too advised that the applicant be formally admitted to hospital for assessment. He also advised that the applicant be observed via closed circuit television, since the presence of a police officer outside his cell was causing him to become agitated. For the remainder of his time at the police station, the applicant remained under continuous observation by this means.", "11. At around midday, the applicant was visited by an approved social worker, Mr G. He was also seen by a community psychiatric nurse, Mr J. Both noted that the applicant was displaying clear signs of mental illness. The social worker filled out the relevant form for admission to a mental hospital, omitting just one point, the name of the establishment, which had yet to be determined. 12.", "At around 3 p.m. two members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to Reaside Clinic, which had a medium secure unit. The police thereupon contacted Reaside to inform them of the situation. Shortly after 6 p.m., Dr M., a consultant forensic psychiatrist at Reaside, called back and was informed of the situation concerning the applicant. According to the custody record, he stated that someone would be sent over from the clinic. According to Dr M.’s own notes on the situation, which the Government have provided, he then consulted with a number of colleagues.", "Believing that the applicant would be charged and remanded in custody and that an assessment from Reaside would be required only afterwards, they considered that there was no need for their involvement before such time. At 7.24 p.m. the police received a call from Reaside informing them that the clinic would not be sending anyone to the station, but would liaise with the social worker. 13. The custody record for the applicant’s first day at the police station refers at several points to his disturbed behaviour: clapping loudly, shouting, banging on the door, lowering his trousers and waving his testicles about, and licking the wall of his cell. Dr T. noted that the applicant repeatedly hit his head against the wall, causing himself bruising.", "He was provided with, and accepted, food and drink at intervals throughout the day. 14. The next day, 7 December, there were further telephone contacts between the police station and Reaside regarding the applicant’s case. The police also contacted other mental health officials, but admission to Reaside remained the only viable solution. During the morning Dr M. spoke with the duty solicitor of the Crown Prosecution Service, who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody.", "In the event of no charge being brought, they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant the previous day. In discussion with the clinical director of Reaside, Dr M. noted that at that point there was no immediate action to be taken. He was later told by Dr O. that the applicant would be charged with assault, and arranged an appointment to assess the applicant on 9 December at HMP Birmingham. 15. An entry in the custody record at 1.46 p.m. states that the duty solicitor of the Crown Prosecution Service had concluded that there was insufficient evidence to charge the applicant.", "An entry at 5.01 p.m. states that there was an “internal argument” between doctors and the social services regarding the applicant. At 8.41 p.m. an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant. 16. The applicant’s behaviour was observed to deteriorate over the course of the day. By midday he had removed all of his clothing.", "Later he drank water from the bowl of the toilet in his cell. He accepted three meals, in the early morning, mid-morning and in the mid-afternoon. He accepted a drink at 4.17 p.m., but, according to the custody record, refused all further offers of food and drink for the remainder of the day. 17. On the third day of the applicant’s detention, 8 December, the duty Inspector made an entry in the custody record at 8.53 a.m. noting his concern at the environment in which the applicant was detained, given his obvious illness.", "The applicant was still naked and was observed during the morning rocking to and fro on a bench, talking to himself, banging his chest and ranting. 18. Dr M. arrived at the police station shortly before 11 a.m., accompanied by other mental health professionals from Reaside to assess the applicant. The police refused to open the door of the applicant’s cell on the ground that this would endanger everyone’s safety. The assessment was conducted through the hatch.", "Dr M. noted that the applicant appeared agitated and was shouting loudly, and that his naked body appeared to be smeared with food or faeces. The applicant was elated, and his speech was incoherent at times. Dr M. concluded that the applicant was clearly unwell and required inpatient treatment in a medium-secure setting with adequate nursing resources and a clear and effective care plan. He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems. The police indicated that their advice from the Crown Prosecution Service was that there could be no charge at that point in time, given the impossibility of interviewing the applicant.", "Dr M. said he would endeavour to get a place for the applicant at Reaside, although it would not be possible to receive him there until the following morning, i.e. beyond the 72-hour limit laid down by the Mental Health Act 1983. That afternoon, the Chief Superintendent spoke to the clinical director of Reaside, who agreed to receive the applicant the same evening. 19. Informed of this, Dr M. discussed the situation with nursing staff at Reaside.", "He was informed that the resources needed to admit the applicant could be made available for the following morning at 8 a.m. at the earliest. He considered that an admission in the middle of the night, i.e. just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. He suggested to the Chief Superintendent that the applicant could be transferred to Reaside at the end of the 72-hour period, but that police assistance would be required to maintain him in safe conditions until it was possible to admit him. He was informed that the presence of the police could not be guaranteed for the whole period.", "20. At 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. Late that night, an Approved Social Worker from Reaside came to the police station to complete the necessary forms for the application’s admission under the Mental Health Act 1983. 21. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day (9.34 a.m. and 2.28 p.m.).", "At the end of the afternoon a meal was not offered because the applicant was sleeping. He requested food at 7.08 p.m., which was provided but which he dropped on the floor. He refused an offer of a meal and a drink at 10.56 p.m. 22. On the fourth day, 9 December, the applicant was released from police custody at 7.27 a.m. and escorted, in handcuffs, to Reaside. According to the Government, it took eight members of the nursing staff to restrain him once admitted.", "He was assessed as having pressure of speech, flight of ideas, a labile mood, thought disorder and persecutory delusions. The diagnosis was of a manic episode with psychotic features. The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive, threatening manner. He received continued medication over the following days and showed sustained improvement. B.", "The applicant’s legal action against the local health authority 23. On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding. A hearing was held on 14 March 2007 before a District Judge. The applicant’s counsel submitted a report prepared by a Consultant Forensic Psychiatrist, Dr E., who had not interviewed the applicant but had reviewed the relevant documents.", "Dr E. considered that Dr M. should have assessed the applicant within 24 hours of being made aware of the situation, since by that stage the applicant had been detained for about 12 hours. The delay in assessing him and in admitting him to Reaside had in turn delayed the applicant’s treatment and recovery. 24. The judge granted the order for summary judgment. He held that although the defendant had owed the applicant a duty of care, and that that duty had been breached, it had not caused the applicant any physical or psychological injury.", "The action in negligence therefore failed on causation and loss. In any event, any loss had been absolutely minimal. A delay of 31 hours in the hospitalisation of the applicant could only lead to minimal damages. The judge also rejected the claim based on the Human Rights Act on the grounds that Dr M. could not be seen as a public authority for the purposes of the Act, and that the situation did not meet the minimum level of severity inherent in Article 3 of the Convention. The applicant’s claim for damages based on Article 8 of the Convention was also dismissed, the judge finding that this was not an exceptional case in which compensation would be justified.", "The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant, which he had not done. 25. The applicant was granted permission to appeal. The case was heard at Birmingham County Court by Judge M., who dismissed the appeal in a judgment of 14 November 2007. The judge described the applicant’s claim in negligence as “hopeless”, there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant.", "It was unrealistic to suggest that a delay of a given number of hours (the applicant’s counsel having conceded that the delay was considerably less than 31 hours) in some way caused that number of hours of psychosis. 26. In relation to the claim under the Human Rights Act, the judge considered that Dr M. should be viewed in that context as a “public authority”. However, the claim failed because the situation did not fall within Article 3. The applicant had been lawfully detained and his basic needs had been met.", "The fact that he had spent an extra 12-24 hours at the police station did not make the situation so appalling as to breach Article 3. The judge found that there had been no breach of Article 8 because there had been no arbitrary or deliberate interference with the applicant’s rights. As regards the claim for malfeasance, he concurred with the decision of the District Judge. 27. In light of these findings, the applicant’s legal representatives advised him that legal aid would not be available for him to appeal the decision further.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 28. Section 136 of the Mental Health Act 1983 provides: “Mentally disordered persons found in public places. (1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above. (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” A “place of safety” is defined in section 135(6) as follows: “In this section “place of safety” means residential accommodation provided by a local social services authority..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.” 29.", "The Code of Practice issued under the Mental Health Act 1983 provided at the relevant time: “The place of safety 10.5 The identification of preferred places of safety is a matter for local agreement. However, as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station. Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment. Once the person has been removed to a particular place of safety, they cannot be transferred to a different place of safety. ... 10.8.c.", "Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital.” III. RELEVANT INTERNATIONAL MATERIALS 30. Extract from Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008: “148. The CPT also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police. More than once, members of the CPT’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self-harm.", "Such treatment is clearly unacceptable and should be stopped immediately. In such cases police officers should immediately call a doctor and act in accordance with his instructions. Further, detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility. The CPT recommends that immediate steps be taken to ensure that detained persons with mental health disorders, held in police stations, are provided with appropriate care and treatment, until they are transferred to a mental health facility.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 31.", "The applicant argued that his experience during the time he was detained by the police had been inhuman and degrading, in violation of Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 32. The Government contested that argument. A. The parties’ observations 1. The applicant 33.", "The applicant submitted that he had been subjected to inhuman and degrading treatment when inappropriately detained in a police cell during a period of acute mental suffering. He rejected the view that only the last 12-24 hours were relevant to his complaint. It had been obvious from the outset and for the entire duration of his detention by the police that he was severely mentally ill and required hospital treatment as a matter of great urgency. His distress had been prolonged and, as evidenced by the entries in the custody record, exacerbated by the delay in arranging his transfer to Reaside. He maintained that while the Mental Health Act 1983 allowed up to 72 hours’ detention, it was only in truly exceptional cases that anything close to this duration should be accepted.", "Good professional practice demanded that a person detained under that legislation should be moved to a suitable facility as soon as possible, and this was reflected in the official guidance on the use of the section 136 power. This, along with the fact that the power was used with some frequency by the West Midlands police, meant that the Government could not now characterise the situation as one of mere lack of preparedness. 34. While not suggesting that there had been any intention on the part of the authorities to humiliate him or cause him suffering, the applicant noted that the authorities had brought the situation about and had consciously allowed it to endure rather than act to end it, evincing a somewhat cavalier attitude. He stressed that his mental illness had left him in a highly vulnerable state at the time, demanding a prompt response.", "It was beside the point for the Government to say that the applicant had at least been safe while at the police station. In reality, he had been in dire need of psychiatric care, which was not provided until the fourth day. There could be no justification for situations that were incompatible with human dignity. Issues such as the limited availability of hospital beds or nursing staff, or the expectation that he would be charged by the police over the assault on his aunt, were irrelevant. The authorities had created the situation by arresting him, and should bear responsibility for the consequences on him.", "His own behaviour during the period at the police station should not be seen as hindering the authorities’ endeavours to arrange for his treatment, but as evidence of the urgency of the case. Although he may not have been able to rationally perceive the nature of his situation at the time, all of the medical professionals who examined him noted that he was in an agitated and anguished state. He had also been in an unhygienic and undignified state. As for food and water, the custody record showed that his intake during the last 40 hours in the police station had been inadequate. Given the applicant’s very vulnerable condition, there had been an obligation on the police to ensure his basic physical needs were effectively met.", "2. The Government 35. The Government underlined that they did not seek to defend as acceptable the circumstances and conditions of the applicant’s detention, but these did not warrant classification as treatment contrary to Article 3. They explained that Reaside Clinic normally dealt with patients who were subject to the criminal process, and had a waiting list of 14 persons at the time of the applicant’s arrest. It did not usually accept patients directly off the street, which explained why staff there expected that the applicant would be charged first, and why it had not been possible to make the necessary staffing arrangements to admit him until the morning after his assessment by Dr M. They had simply been unprepared, which was insufficient to ground a violation of Article 3.", "While the applicant’s symptoms were manifest, his medical history, including his reaction to psychiatric medication, was unknown. This posed risks that had to be carefully managed for the applicant’s own safety as well as that of Reaside staff. As stated above, it had taken eight trained staff to restrain the applicant when he arrived there. There was no evidence that the experience had caused any harm to the applicant. Nor was there any evidence from him, or offered on his behalf, that he had in fact experienced fear, anguish or inferiority, or had endured suffering or humiliation.", "36. The Government considered that the most the applicant could complain of was an additional 24 hours in the police station, which although regrettable was not sufficient to reach the threshold of Article 3. The cases cited by the applicant all related to far worse situations that had lasted for far longer periods. The police had no choice but to keep him at the police station while a bed was found for him; the option of releasing the applicant was not open to them. Although the applicant’s mental illness could not be treated at the police station, it was nevertheless a place of safety for him since he was under constant surveillance and would have received treatment for any injury or harm inflicted.", "The police had provided him with adequate food and drink during the period, either on their own initiative or at his request. It had not been established that he had suffered from a lack of nutrition or hydration, or that he would have fared better in this respect in Reaside. The Government strongly rejected any suggestion that the persons who dealt with the applicant displayed a lack of concern. Nor had there been any intention to humiliate or debase him. On the contrary, they had all sought to bring about his transfer as soon as this could be arranged.", "Once admitted to Reaside, the applicant had received adequate care and his condition had improved. 37. The Government regretted that the treatment of the applicant fell below the standard of best practice set for the health services in England. Following the events in this case, the police and health authorities in that area had agreed on a new policy to deal more rapidly and effectively with such situations. B.", "The Court’s assessment 38. Article 3 of the Convention enshrines one of the fundamental values of democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment (see, as a recent authority and for further references, Stanev v. Bulgaria [GC], no. 36760/06, § 201, 17 January 2012). It is the consistent case-law of the Court that in order to come within the scope of the interdiction contained in Article 3 the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending 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 (Price v. the United Kingdom, no.", "33394/96, § 24, ECHR 2001‑VII). As for the concept of degrading treatment, the Court has in its case-law described it as treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III, § 110). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (Ramirez Sanchez v. France [GC], no.", "59450/00, § 118, ECHR 2006‑IX; see also Price, cited above, § 30). 39. At the heart of this case is the applicant’s severe mental illness at the time in question. As the Court has stated in its case-law under this provision of the Convention, the mentally ill are in a position of particular vulnerability, and clear issues of respect for their fundamental human dignity arise whenever such persons are detained by the authorities (Dybeku v. Albania, no. 41153/06, § 41, 18 December 2007).", "The issue is whether the authorities fulfilled their obligation to protect the applicant from treatment contrary to Article 3 (Keenan, cited above, § 113). 40. The Court does not doubt that the initial arrest of the applicant on 6 December 2004 was justified. He had just perpetrated a violent assault on his aunt and, in his highly agitated state, posed an obvious danger both to public safety as well as to himself. Given that the arrest occurred during the night, and the real possibility at the outset of serious criminal charges being brought against him, the initial removal of the applicant to a police cell, a designated place of safety under the 1983 Act, is not open to criticism.", "Moreover, the applicant has not made any complaint under Article 5 of the Convention. 41. It is common ground between the parties that there was no intention on the part of the police or the health authorities to treat him in a manner incompatible with Article 3. The Court agrees. The detailed record of his detention that has been provided to the Court evidences real concern on the part of the police to see the applicant transferred to a therapeutic setting as quickly as could be arranged.", "It is clear that the police endeavoured continuously to bring this about. In the meantime, as the Government have observed, the cell in which the applicant was detained, and kept under observation, was a place of relative physical safety for him. Nevertheless, for as long as he remained there no psychiatric treatment could be provided to him. 42. In his submissions the applicant criticised the reaction of the medical personnel at the clinic to his situation, describing it as cavalier.", "The Court does not accept this. The information provided by the Government shows that Dr M. did not remain passive. Indeed, it points rather to his readiness to firstly assess the applicant, and then subsequently to admit him to the clinic, subject to adequate staffing arrangements being made to ensure the personal safety of all involved. His expectation until the middle of the third day that the applicant would become subject to the criminal process does not appear to the Court to be groundless or otherwise unreasonable. 43.", "The Court will next consider the applicant’s criticism of the material conditions of his detention, the allegation being that his intake of adequate liquid and food was not ensured. In this regard the County Court found that his basic physical needs had been met. The Court can agree with this, discerning no real inadequacy, let alone neglect, on the part of the police in this respect. They offered the applicant meals and drinks at intervals. Although the police record states that he did not consume all of these, the Court does not consider this to raise any distinct or additional issue.", "44. The fact remains, however, that the applicant was in a state of great vulnerability throughout the entire time at the police station, as manifested by the abject condition to which he quickly descended inside his cell. He was in dire need of appropriate psychiatric treatment, as each of the medical professionals who examined him indicated. The Court considers that this situation, which persisted until he was at last transferred to Reaside early on the fourth day, diminished excessively his fundamental human dignity. It refers here to the opinion of the Committee for the Prevention of Torture, cited above (see § 30 above).", "It is of some significance that the applicant’s situation failed to respect both best medical practice in England as well as the maximum time-limit set by Parliament in the relevant legislation. Throughout the relevant time, the applicant was entirely under the authority and control of the State. The authorities were therefore under an obligation to safeguard his dignity, and are responsible under the Convention for the treatment he experienced. 45. In their submissions the Government regretted the incident and explained how it came about.", "The Court can accept that the efforts made on the applicant’s behalf were genuine, and that those who came in contact with him were sensitive to his distress. The situation appears to have arisen essentially out of difficulties of co-ordination between the relevant authorities when suddenly confronted with an urgent mental health case. The Government have indicated that this incident led to an improvement in the standing arrangements between the police and the health authorities to respond more rapidly in such circumstances. While welcoming these improvements, the Court is required to deal with the treatment to which the applicant was subjected. Even though there was no intention to humiliate or debase him, the Court finds that the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3.", "46. In conclusion, the Court finds that the applicant suffered degrading treatment. There has therefore been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.", "The parties’ observations 1. The applicant 47. The applicant complained of the manner in which the domestic courts had examined his case. He argued that they had made an error of fact, failing to take into account that his intake of food and water had not been properly ensured. He also argued that they had not properly followed the Convention case-law, failing to give sufficient consideration to his particular vulnerability as a mentally ill person.", "In other words, they had mischaracterised his claim. As a consequence, the domestic courts had not been in a position to provide him with a remedy. There had been no full hearing of the case even though the County Court had acknowledged that it was arguable. Instead, the judge had been swayed by the low level of damages potentially available, compared to the cost of proceeding to a full hearing. This disregarded both the applicant’s right to receive compensation for non-pecuniary damage and the public interest in seeing a case of this sort proceed to trial.", "The applicant did not accept that his claim had failed on the facts. A similar line of argument had been rejected by the Court in McGlinchey and Others v. the United Kingdom, no. 50390/99, § 65, ECHR 2003‑V. 2. The Government 48.", "The Government noted that the applicant had had the possibility of pursuing civil proceedings against the relevant health authority on three bases; negligence, misfeasance in public office, and an action for damages under the Human Rights Act. Each of these claims had been duly considered by a District Judge and then, on appeal, by the County Court. Summary judgment had been given against the applicant because the County Court concluded that there was no real chance or prospect of success. Regarding the claim based on Article 3, the County Court had taken account of the relevant Convention case-law. There was nothing inherently ineffective about the claim under the Human Rights Act.", "Accordingly, the applicant’s complaint amounted to little more than a complaint of an unfavourable outcome. B. The Court’s assessment 49. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision.", "The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey, cited above, § 62). Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63). 50. It necessarily follows from the Court’s conclusion under Article 3 that the applicant did have an “arguable complaint” under that provision.", "He therefore had the right to a remedy capable of dealing with the substance of his complaint, and of granting any appropriate relief 51. The Court considers that an appropriate remedy was available in the domestic law. The two courts that considered the applicant’s case assessed it in relation to three possible remedies, in particular a claim for damages under the Human Rights Act. That the outcome was not favourable for him does not mean that the remedy was in principle ineffective. Compliance with Article 13 does not depend on the certainty of a favourable outcome for an applicant (Ramirez Sanchez, cited above, § 159).", "Nor, for the purposes of Article 13, is the domestic courts’ assessment invalidated by the fact that this Court has reached the contrary conclusion on the applicant’s Article 3 complaint. 52. The applicant criticised the fact that before the District Court his case was disposed of by summary judgment, and that the cost of legal aid was given more weight than the interest in a full determination of his claim. The Court does not consider these points to be significant, it being clear from their judgments that each court heard detailed submissions from the applicant’s counsel, and reasoned their decisions at some length. 53.", "In conclusion, there has been no violation of Article 13 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 asked the Court to award him EUR 6,000 as compensation for non-pecuniary damage. 56. The Government considered that the finding of a violation would provide sufficient just satisfaction to the applicant. In any event, it regarded the sum claimed as excessive in comparison with sums recently awarded by the Court to applicants who had ensured significantly more humiliating and debasing conditions of detention. 57.", "Having regard to all the circumstances in this case, the Court decides to award the applicant the sum of EUR 3,000. B. Costs and expenses 58. The applicant claimed a total of GBP 13,975 net of VAT for counsel’s fees incurred in the proceedings before this Court, plus GBP 506.67 for his solicitor’s costs and expenses. 59.", "The Government submitted that the sums claimed were excessive. The complexity of the case was not such as to justify either the amount of time billed by the first counsel (26.5 hours), or the involvement of additional counsel, who charged for 38 hours’ work on the case. It suggested that GBP 2,000 would be an appropriate award for both counsels’ fees. 60. The Court shares the Government’s view that the present case was not especially complex, and therefore considers the sum claimed for counsels’ fees to be too high.", "Taking account of the EUR 850 already received in legal aid from the Council of Europe, it awards instead EUR 7,500 euros, plus a further EUR 650 for solicitor’s costs and expenses, both sums inclusive of VAT. C. Default interest 61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds, unanimously, that there has been a violation of Article 3 of the Convention; 2.", "Holds, by six votes to one, that there has been no violation of Article 13 of the Convention; 3. Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable on this sum, in respect of non-pecuniary damage, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,150 (eight thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicant on this sum, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech Garlicki RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, a declaration of Judge Zdravka Kalaydjieva is annexed to this judgment.", "L.G.T.L.E. DECLARATION OF JUDGE KALAYDJIEVA I voted in favour of finding a violation of Article 3 of the Convention. However, I should like to record my disagreement with the majority’s finding that there has been no breach of Article 13 (Rule 74 § 2 of the Rules of Court). [1] [1] Inserted on 11 May 2012 following the rectification of the judgment (Rule 81 of the Rules of Court)." ]

[ "FOURTH SECTION CASE OF KWIATKOWSKI v. POLAND (Application no. 4560/04) JUDGMENT STRASBOURG 17 October 2006 FINAL 17/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kwiatkowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 26 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4560/04) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Zbigniew Kwiatkowski (“the applicant”), on 20 January 2004. 2. The applicant was represented by Mr P. Heliński, a lawyer practising in Krosno.", "The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3. On 1 September 2005 the President of the Fourth Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1949 and lives in Bad Marienberg, Germany. A. The first set of divorce proceedings 5. Between December 1993 and 15 October 1998 the applicant was involved in divorce proceedings. On the latter date the proceedings were discontinued as the applicant had withdrawn his petition for divorce.", "B. The second set of divorce proceedings 6. On 5 November 1998 the applicant’s wife (“the petitioner”) lodged with the Warsaw Regional Court (Sąd Okręgowy) a petition for divorce. 7. It appears that the court held over twenty hearings.", "Some of the hearings were adjourned due to the absence of the petitioner or witnesses. The first hearing therefore was held on 4 February 2000. The court heard in total six witnesses. 8. On 7 October 2004 the Regional Court gave judgment.", "Both parties appealed against the judgment. 9. On 4 January 2005 the applicant lodged with the Warsaw Court of Appeal a complaint about a breach of the right to have his case heard within a reasonable time. He relied on the 2004 Act. On 28 February 2005 the Court of Appeal dismissed his complaint.", "The court examined the course of the impugned proceedings and held that there had been no delays for which the Regional Court could be held responsible. The court finally held that the case was complex. 10. On 24 April 2006 the court rejected the petitioner’s appeal as she had failed to pay court fees. 11.", "The appellate proceedings concerning the appeal lodged by the applicant are pending before the Warsaw Court of Appeal (Sąd Apelacyjny). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE FIRST SET OF CIVIL PROCEEDINGS Admissibility 12. The applicant complained about the unreasonable length of the first set of civil proceedings introduced by him in December 1993. 13.", "However, pursuant to Article 35 § 1 of the Convention: “1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken...” 14. The Court notes that this set of proceedings ended on 15 October 1998, thus more than six months before the date on which this complaint was submitted to the Court. 15. 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.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE SECOND SET OF CIVIL PROCEEDINGS 16. 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...” 17. The Government contested that argument. 18.", "The period to be taken into consideration began on 5 November 1998 and has not yet ended. It has thus lasted [7 years and 10 months] for two levels of jurisdiction. A. Admissibility 19. 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 20. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).", "21. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 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. The Court notes that the proceedings before the court of first instance lasted almost 6 years and that the first hearing was held after fifteen months. The Court reiterates that in cases relating to civil status, what is at stake for the applicant is also a relevant consideration, and special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life (see Laino v. Italy [GC], no.", "3158/96, § 18, ECHR 1999-I, Kubiszyn v. Poland, no. 37437/97, § 34, 30 January 2003). The Court therefore considers that the Warsaw Court of Appeal in dismissing the applicant’s complaint that the length of the proceedings in his case had exceeded a reasonable time 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). 22.", "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 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 24. The applicant claimed 39,000 Polish zlotys (PLN) in respect of pecuniary and PLN 10,000[1] in respect of non-pecuniary damage. 25. The Government contested these claims. 26.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 2,500 euros (EUR) in respect of non‑pecuniary damage. B. Costs and expenses 27. The applicant also claimed EUR 1,500 for costs and expenses incurred before the Court.", "28. The Government contested the claim. 29. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full.", "C. Default interest 30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the second set of proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred 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, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas Bratza RegistrarPresident [1] Note for the deliberations: approximately EUR 2,500" ]

[ "FIFTH SECTION CASE OF YORDANOVA AND OTHERS v. BULGARIA (Applications nos. 61432/11 and 64318/11) JUDGMENT STRASBOURG 19 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Yordanova and Others v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President,Síofra O’Leary,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 26 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 61432/11 and 64318/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Ms Violeta Aleksandrova Yordanova (“the first applicant”), Ms Timka Aleksandrova Rusamanova (“the second applicant”) and Ms Rumyana Strashimirova Telyatinova (“the third applicant”, together “the applicants”), on 15 September 2011.", "The second applicant passed away in 2013 and her daughter, Ms Svetla Velichkova Gogova, expressed a wish to continue the application in her stead. 2. The first and third applicants and Ms Svetla Velichkova Gogova were represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms I. Stancheva-Chinova, of the Ministry of Justice. 3.", "On 8 June 2017 the complaints concerning the authorities’ failure to provide compensation to the applicants for their fathers’ expropriated property were communicated to the Government and the remainder of the two applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1937, 1934 and 1941 respectively. The first and third applicants live in Sofia.", "A. Background 5. The applicants’ fathers owned printing houses in Sofia, which were nationalised by the Communist authorities in 1949 and 1950. After that their assets were taken over by a State-owned printing house. In 1991 the latter was registered as a State-owned company, currently named ‘Obrazovanie i nauka’ EAD.", "The company is managed by the Minister of Education. Among the tasks of the company is the printing of school textbooks. 6. In 1997 Parliament adopted the Compensation of Owners of Nationalised Real Property Act (hereinafter “the Compensation Act” – see paragraph 23 below). B.", "Initial developments concerning the first and second applicants 7. In March 1998 the first and second applicants and their mother applied under the Compensation Act to receive compensation for the nationalised printing house. As to the manner of compensation, they expressed preference to receive shares in ‘Obrazovanie i nauka’ EAD. In a decision of 14 June 1999 the Minister of Education allowed their request, stating that the exact number of shares to be awarded would be determined after a valuation of the assets of the former printing house. 8.", "Despite that, in another decision dated 3 July 2000 the Minister rejected the request for compensation. That decision was quashed by the Supreme Administrative Court in a final judgment of 24 June 2002, on the ground that it impermissibly modified the previous one, which had become final. 9. After that an expert prepared a valuation of the nationalised property, which was confirmed by the Minister of Education on 5 June 2003. It stated that the first and second applicants and their mother were entitled to compensation for 57,932 Bulgarian levs (BGN, equivalent of 29,630 euros (EUR)), which equalled 579 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100 (EUR 51).", "10. However, on 26 August 2003 the Minister adopted another decision, stating that the applicants and their mother were to receive compensation bonds instead of shares. He relied in particular on the fact that ‘Obrazovanie i nauka’ EAD had been included in the list under section 11 of the concluding provisions of the Privatisation and Post-Privatisation Control Act 2002 (hereinafter “the Privatisation Act” – see paragraph 24 below). Once again, that decision was quashed by the Supreme Administrative Court, in a final judgment of 18 October 2004, as it impermissibly modified the previous decisions awarding the first and second applicants and their mother compensation in the form of shares, which had become final. The domestic court held in particular that section 11 of the concluding provisions mentioned above could not justify such a modification.", "11. In 2006 the first and second applicants and their mother filed with the Minister of Education and other State bodies several complaints, requesting that the compensation procedure be completed. In a letter dated 7 April 2006 the Council of Ministers (Government) informed them that the Ministry of Education was seeking “a lawful solution”, which “would not infringe upon the public interest and would not be in breach of the [Privatisation Act]”. In another letter dated 30 August 2006 the parliamentary Committee on Petitions informed the applicants and their mother that it had urged the Minister of Education to find a solution, pointing out that with the enactment of the Compensation Act Parliament had sought “to restore historical justice”. 12.", "The first and second applicants’ mother passed away in 2007 and was succeeded by them. C. Initial developments concerning the third applicant 13. In August 1998 the third applicant, her mother and her sister applied under the Compensation Act to receive compensation for the nationalised printing house. They stated that they preferred to receive shares in ‘Obrazovanie i nauka’ EAD. 14.", "Their request was allowed by the Minister of Education in a decision of 22 December 1998. 15. In 1999, 2001 and 2003 an expert drew up three valuations of the expropriated property. The last of them, stating that the third applicant, her mother and her sister were entitled to compensation for BGN 26,309 (the equivalent of EUR 13,460), equalling 263 shares in ‘Obrazovanie i nauka’ EAD, each with a face value of BGN 100, was confirmed by the Minister of Education on 6 June 2003. 16.", "Despite the above developments, in another decision dated 26 August 2003 the Minister stated that the third applicant, her mother and her sister were to receive compensation bonds instead of shares. As in the procedure described above concerning the first and second applicants, he relied on the fact that the company had been included in the list under section 11 of the concluding provisions of the Privatisation Act (see paragraph 24 below). That decision was quashed by the Supreme Administrative Court in a final judgment of 31 March 2004, on the ground that it impermissibly modified the previous decisions concerning the compensation to be provided, which had become final. The domestic court again held that section 11 of the concluding provisions mentioned above could not justify such a modification, as it was not applicable to pending compensation proceedings. 17.", "The third applicant’s mother and sister passed away in 2006 and 2004 respectively, leaving the third applicant her father’s only surviving heir. D. Subsequent developments 18. In 2007 the Ministry of Education requested the Privatisation Agency to authorise the transfer to private parties of shares in ‘Obrazovanie i nauka’ EAD. The authorisation, related to the claims of all applicants, was given on 23 April 2008. 19.", "The Ministry took no further measures to complete the compensation procedures. 20. In 2011 the third applicant wrote a letter to the executive director of ‘Obrazovanie i nauka’ EAD, urging him to enter into the company register her shareholding and to present to her copies of all decisions taken by the company’s general meeting after 2003. She received no response. 21.", "In a decision of 5 March 2013 the Council of Ministers authorised the sale by ‘Obrazovanie i nauka’ EAD of real properties owned by the company (such an authorisation was required by law). The applicants applied for the judicial review of that decision, arguing that it affected their rights as shareholders. In a judgment of 27 January 2015 the Supreme Administrative Court dismissed their application, noting that they were not shareholders in the company, since the compensation procedures had not been completed with the actual transfer of shares to them in accordance with the law. II. RELEVANT DOMESTIC LAW AND PRACTICE 22.", "After the fall of the communist regime in 1990, Parliament enacted legislation providing for the restitution of different types of formerly nationalised property. 23. In November 1997 it enacted the Compensation Act (Закон за обезщетяване на собственици на одържавени имоти), which provided for the compensation of former owners of certain types of nationalised property, or their heirs, in cases where, for different reasons, restitution in kind was impossible. The manner of compensation was, as a rule, to be chosen by the former owners, respectively their heirs. Compensation could be through shares in the properties or companies in which the nationalised properties had been included, or through compensation bonds.", "The latter are financial instruments which can be used in privatisation tenders, and are usually bought up by investors at relatively low prices. 24. The Privatisation Act (Закон за приватизация и следприватизационeн контрол) was enacted in 2002. While it did not, in principle, deal with questions of restitution, section 11 of its concluding provisions stated that persons entitled to compensation, in particular under the Compensation Act, with regard to a number of specifically enumerated companies (such as public utilities companies, hospitals, etc., most of which are entirely owned by the State), would only receive compensation bonds. 25.", "The relevant provisions of the Code of Administrative Procedure concerning the enforcement of final administrative decisions, and the national courts’ practice in that regard, have been summarised in Dimitar Yanakiev v. Bulgaria (no. 2) (no. 50346/07, § 30-35, 31 March 2016). THE LAW I. PRELIMINARY QUESTIONS 26.", "The Court notes that the second applicant, Ms Timka Aleksandrova Rusamanova, passed away in 2013 and that her daughter, Ms Svetla Velichkova Gogova, expressed a wish to continue the application in her stead (see paragraph 1 above). It has not been disputed that Ms Gogova is entitled to do so, and the Court sees no reason not to accede to her request (see, for example, Bittó and Others v. Slovakia, no. 30255/09, §§ 73-74, 28 January 2014). 27. In addition, given that the two applications concern similar facts and complaints and raise identical issues under the Convention, the Court considers that the they should be joined pursuant to Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 28. The applicants complained under Article 1 of Protocol No. 1 that they had not received the compensation due to them.", "That provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 29. The Government raised two objections relating to the non-exhaustion of domestic remedies. In their observations on the admissibility and merits of the case they claimed, first, that the applicants had had to exercise their rights as shareholders in ‘Obrazovanie i nauka’ EAD.", "In their additional observations and submissions on the applicants’ claims for just satisfaction they argued, second, that the applicants should have initiated enforcement proceedings against the Minister of Education, as provided for under the Code of Administrative Procedure. 30. In their submissions the first and third applicants and the second applicant’s heir, Ms Gogova (see paragraphs 1 and 26 above), contested the first objection raised by the Government. They pointed out that, the compensation procedures not having been completed, they were not shareholders in ‘Obrazovanie i nauka’ EAD – a fact which had been confirmed by the Supreme Administrative Court in its judgment of 27 January 2015. 31.", "The Court is of the view that the first of the two questions raised, namely whether the applicants could be considered shareholders in ‘Obrazovanie i nauka’ EAD and whether they were entitled to exercise any rights in that regard, is closely linked with the substance of the applicants’ complaints and should therefore be joined to the merits. 32. As to whether the applicants had to initiate enforcement proceedings against the Minister of Education, as provided for under the Code of Administrative Procedure (see paragraph 25 above), the Court is of the view that the Government are estopped from raising an objection of non-exhaustion of domestic remedies. The Government have failed to raise such an objection in their initial observations on the admissibility of the case, only doing so in their additional observations and submissions on the applicants’ claims for just satisfaction (see paragraph 29 above). They have not provided any justification for that delay (see Khlaifia and Others v. Italy [GC], no.", "16483/12, §§ 52-54, ECHR 2016 (extracts)). 33. The Court notes furthermore 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 34. The Government argued that the Minister of Education “had not, at any time”, refused to complete the compensation procedures, but had, instead of that, sought a lawful manner of doing so. Moreover, public interest required that ‘Obrazovanie i nauka’ EAD should remain wholly State-owned. Lastly, the Minister had sought a way out of the standstill situation obtained after the enactment of the Privatisation Act, by replacing the shares due to the applicants with compensation bonds – a solution which the applicants had however successfully contested.", "35. The first and third applicants and the second applicant’s heir reiterated the complaints, relying in particular on the Court’s findings in Mutishev and Others v. Bulgaria (no. 18967/03, 3 December 2009) and Nedelcheva and Others v. Bulgaria (no. 5516/05, 28 May 2013). They pointed out that the applicants’ entitlement to compensation in the form of shares in ‘Obrazovanie i nauka’ EAD had been recognised in 1998 and 1999, and that the national courts had treated as unlawful all subsequent attempts by the administration to deny or modify that entitlement.", "In addition, while acknowledging the difficulties encountered by the administration as a result of the conflict between the requirements of the Compensation Act and the Privatisation Act, the first and third applicants and the second applicant’s heir argued that the negative consequences of that did not have to be borne by them alone. In their view, the Minister of Education had not demonstrated any will to find an appropriate solution. 36. The Court has already examined several cases against Bulgaria concerning, similarly to the present one, failure of the administrative authorities to comply with final decisions acknowledging the applicants’ right to restitution or compensation. It found violations of Article 1 of Protocol No.", "1 in three cases where the administration had refused to comply with final court judgments ordering restitution in kind (see Mutishev and Others, cited above, §§ 130-38; Hadzhigeorgievi v. Bulgaria, no. 41064/05, §§ 64-72, 16 July 2013; and Velcheva v. Bulgaria, no. 35355/08, §§ 36-50, 9 June 2015), and in a case where, similarly to the present one, the applicants had been entitled to receive compensation in the form of shares in a company, but the relevant administrative body had refused to provide such shares, invoking reasons which the national courts had rejected (see Nedelcheva and Others, cited above, §§ 67-70). 37. In the present case, in two decisions dated 22 December 1998 and 14 June 1999 the Minister of Education allowed the applications by the applicants and their relatives to receive compensation in the form of shares in ‘Obrazovanie i nauka’ EAD (see paragraphs 7 and 14 above).", "While the Minister attempted subsequently to amend these decisions, awarding the claimants compensation bonds instead of shares, or denying altogether their right to compensation, the Supreme Administrative Court found these subsequent decisions null and void, as they contradicted the initial ones, which had become final (see paragraphs 8, 10 and 16 above). After 2004 neither the Minister of Education nor any other body questioned the applicants’ entitlement to receive compensation. Measures were taken to ensure the provision of that compensation, such as the Privatisation Agency’s authorisation for the transfer of shares in ‘Obrazovanie i nauka’ EAD, given in 2008 (see paragraph 18 above). Accordingly, the 1998 and 1999 decisions, which determined with finality the applicants’ entitlement to compensation and were not subject to modification, gave rise to legitimate expectations for the applicants to receive such compensation, and thus to “possessions” within the meaning of Article 1 of Protocol No. 1 (see Mutishev and Others, § 123, and Hadzhigeorgievi, § 63, both cited above).", "38. Turning to the question whether there was an interference with the applicants’ possessions, the Court will first examine the argument raised by the Government that the applicants could already be considered shareholders in ‘Obrazovanie i nauka’ EAD and could have exercised their rights as such (see paragraph 29 above). This would mean that the compensation procedure has in fact been completed and the authorities no longer have any obligation in that regard. However, the Government also stated – at the domestic level and in the proceedings before the Court – that the Minister of Education was looking for a lawful means to complete the compensation procedures (see paragraphs 11 and 34 above), which contradicts their argument that the applicants were shareholders. Moreover, in its judgment of 27 January 2015 the Supreme Administrative Court stated expressly that the applicants were not shareholders in ‘Obrazovanie i nauka’ EAD, dismissing on that ground their application for the judicial review of a governmental decision concerning the company (see paragraph 21 above).", "The Court thus concludes that the grant of compensation in two decisions of 1998 and 1999 which subsequently became final was not followed by the actual transfer of shares to the applicants – and that this continued failure of the Minister of Education to comply with the decisions acknowledging the applicants’ entitlement to compensation has constituted an interference with the applicant’s possessions. 39. Accordingly, the Court dismisses the Government’s first objection on grounds of non-exhaustion of domestic remedies, which it previously joined to the merits of the complaint (see paragraph 31 above). 40. Any interference by a public authority with the peaceful enjoyment of possessions should, first of all, be lawful (see, for example, Iatridis v. Greece [GC], no.", "31107/96, § 58, ECHR 1999‑II). In the present case domestic law did not provide for any deadline for the completion of the compensation procedures initiated by the applicants and their relatives. However, this is not sufficient for the Court to conclude that the interference with the applicants’ possessions was lawful for the purposes of Article 1 of Protocol No. 1. In the earlier similar cases cited above it held that administrative bodies had no discretion to refuse to enforce final court judgments on the ground that they considered those judgments’ findings erroneous or otherwise contrary to law, and that the principle of legal certainty required, inter alia, that where the courts had finally determined an issue, their ruling should not be called into question, save for reasons of a substantial and compelling character (see Mutishev and Others, § 129, Hadzhigeorgievi, § 66, and Nedelcheva and Others, § 68, all cited above).", "41. In the present case, the applicants’ entitlement to compensation in the form of shares in ‘Obrazovanie i nauka’ EAD was acknowledged in administrative decisions (see paragraphs 7 and 14 above), which were final and binding. Moreover, all attempts on the part of the Minister of Education to modify or quash those decisions were rejected in final judgments of the Supreme Administrative Court (see paragraphs 8, 10 and 16 above). Accordingly, the Court finds that, as stated above, the Minister was bound and could not refuse to comply with those decisions, save, as already mentioned, for reasons of a substantial and compelling character. 42.", "No such reasons have been shown to exist. In particular, the argument that section 11 of the concluding provisions of the Privatisation Act could justify such a refusal was rejected by the Supreme Administrative Court, on the ground in particular that it did not apply to pending compensation proceedings (see paragraphs 10 and 16 above). After the Minister of Education’s attempts to replace the shares due to the applicants with compensation bonds were rejected by the Supreme Administrative Court (see paragraphs 10 and 16 above), the Minister remained passive for many years and did not propose any solution. 43. Accordingly, as in the earlier similar cases (see Mutishev and Others, § 138, and Hadzhigeorgievi, § 71, both cited above), the Court concludes that the interference with the applicants’ possessions was contrary to the principle of lawfulness under Article 1 of Protocol No.", "1. 44. This means that there has been a violation of that provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 46. As concerns pecuniary damage, the first and third applicants and the second applicant’s heir stated that they acknowledged the “important social function” of ‘Obrazovanie i nauka’ EAD (see paragraph 5 above) and did not claim “at all events” to receive the shares in that company due to them under the respective decisions of the Minister of Education. Instead of that they claimed monetary compensation, equivalent to “the full current market value of the nationalised property”. In order to establish that value, the first and third applicants and the second applicant’s heir submitted valuations prepared by experts.", "On the basis of these valuations the first applicant and the second applicant’s heir claimed 218,813 Bulgarian levs (BGN), the equivalent of 112,000 euros (EUR), and the third applicant claimed BGN 226,000, the equivalent of EUR 115,600. 47. The third applicant claimed in addition lost earnings for the period from 1998 to 2017. She relied once again on one of the expert valuations submitted by her, according to which the dividend she would have received for this period, had she been a shareholder in ‘Obrazovanie i nauka’ EAD, was BGN 6,723, the equivalent of EUR 3,438. Accordingly, the applicant claimed that sum, plus additional BGN 4,920, the equivalent of EUR 2,516, in default interest on it.", "48. The first and third applicants and the second applicant’s heir claimed EUR 5,000 each in non-pecuniary damage. 49. The Government asked the Court, in case it found a violation of the applicants’ rights, to reserve its decision on the question of pecuniary damage. Alternatively, they were of the view that any compensation to be awarded under this head had to equal the values affirmed by the Minister of Education in his decisions concerning the applicants’ compensation described in paragraphs 9 and 15 above.", "They did not comment on the third applicant’s claim in respect of loss of earnings (see paragraph 47 above). Lastly, the Government considered the claims in respect of non-pecuniary damage excessive. 50. The Court observes that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. 51.", "In view of the above, the Court considers that an appropriate form of reparation in the present case would be the completion of the compensation procedure by the Bulgarian authorities. This would put the applicants in circumstances that are as far as possible equivalent to those in which they would have found themselves had there not been a breach of the Convention (see Mutishev and Others v. Bulgaria (just satisfaction), no. 18967/03, § 29, 28 February 2012, and Velcheva, cited above, § 57). Alternatively, it might be possible, as requested by the applicants, who recognised the company’s “important social function”, that reparation take the form of monetary compensation (see paragraph 46 above). However, based on the information available to it, were such a form of reparation to be chosen, the Court is not in a position to determine the value of the disputed shares for the purposes of calculating pecuniary damage.", "52. Accordingly, the Court is of the view that the question of the application of Article 41 of the Convention, in so far as it concerns pecuniary and non-pecuniary damage, is not ready for decision (Rule 75 § 1 of the Rules of Court). Thus, the Court reserves that question and the further procedure and invites the Government and the applicants, within four months, to submit their observations on the matter and in particular to inform it of any agreement that they may reach, bearing in mind the considerations set forth in the previous paragraphs. B. Costs and expenses 1.", "In relation to the domestic proceedings 53. The first applicant and the second applicant’s heir claimed BGN 57.60, the equivalent of EUR 29, for costs and expenses incurred before the domestic courts. In support of this claim they submitted documents showing that the first and second applicants had made payments on different dates between 2007 and 2010. 54. The third applicant claimed BGN 1,463.30, the equivalent of EUR 750, for costs and expenses incurred before the domestic courts and the administrative authorities.", "In support of this claim she presented documents, showing in particular that she had paid BGN 174.80, the equivalent of EUR 90, in different taxes and for legal representation in the proceedings described in paragraph 21 above, and had signed a contract undertaking to pay for legal representation a further BGN 250, the equivalent of EUR 128. The applicant submitted other invoices and documents, from which it is unclear on what ground the payments were made, or which concern different proceedings. 55. The Government contested the claims. They argued in particular that the third applicant had not shown that she had indeed paid the BGN 250 indicated in the contract for legal representation mentioned in the previous paragraph.", "56. Regard being had to the documents in its possession and to its case-law, the Court dismisses the claim of the first applicant and the second applicant’s heir, since they have not shown that the expenses claimed by them have been incurred while they sought to prevent or to obtain redress for the violation of their rights. As to the claim of the third applicant, the Court awards her the EUR 90 which she actually paid for the proceedings described in paragraph 21 above, and dismisses the claim as regards the remainder. It notes in particular that the third applicant has not shown that she has actually paid the BGN 250 for legal representation mentioned in the contract submitted by her, or that this amount is still due. 2.", "In relation to the proceedings before the Court 57. For the proceedings before the Court, the first and third applicants and the second applicant’s heir claimed jointly EUR 2,570 for the work performed by the lawyer retained by them after the communication of the applications. The third applicant claimed in addition EUR 665 for the lawyer’s work on her just-satisfaction claims. The first applicant and the second applicant’s heir claimed further BGN 600, the equivalent of EUR 307, for the work performed by the applicants’ initial representative before the Court, and the third applicant claimed the same amount. In support of these claims the first and third applicants and the second applicant’s heir presented contracts for legal representation, receipts and a time-sheet.", "They requested that any amount awarded by the Court for legal representation in the proceedings before it be transferred directly into the bank account of their representative, Ms Margaritova-Vuchkova, save for EUR 460 already paid by the first and second applicant (respectively the second applicant’s heir) and EUR 483 already paid by the third applicant. 58. The third applicant claimed in addition BGN 1,322, the equivalent of EUR 676, for the expert valuation reports presented in support of her claims for pecuniary damage (see paragraphs 46-47 above). She presented the relevant invoices. 59.", "The first applicant and the second applicant’s heir claimed BGN 335, the equivalent of EUR 171, for translation, submitting a receipt, and the third applicant claimed BGN 203, the equivalent of EUR 104, for the same reason. Lastly, the first applicant and the second applicant’s heir claimed BGN 42.70, the equivalent of EUR 22, and the third applicant claimed BGN 24.60, the equivalent of EUR 12, for postage, presenting the relevant receipts. 60. The Government contested the claims, considering in particular the amount claimed for legal representation excessive. 61.", "Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the full amount claimed concerning legal representation, namely EUR 3,849 (see paragraph 57 above). As requested by the first and third applicants and the second applicant’s heir, that sum is to be paid directly to their representative, save for EUR 460 which are to be paid jointly to the first applicant and the second applicant’s heir and EUR 483 which are to be paid to the third applicant. 62. The Court also awards the sum paid by the third applicant for a valuation report on her claims for pecuniary damage (see paragraph 58 above), the sums paid for postage, and the sum paid by the first applicant and the second applicant’s heir for translation (see paragraph 59 above). It dismisses, on the other hand, the third applicant’s claim concerning translation costs, which has not been substantiated.", "C. Default interest 63. 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 second applicant’s heir, Ms Svetla Velichkova Gogova, has standing to continue the proceedings in her stead; 2. Decides to join the applications; 3.", "Decides to join to the merits the question of non-exhaustion of domestic remedies related to the applicants’ status as shareholders; 4. Holds that the Government are estopped from raising the objection of non-exhaustion of domestic remedies related to the applicants’ failure to initiate enforcement proceedings; 5. Declares the applications admissible; 6. Holds that there has been a violation of Article 1 of Protocol No. 1, and accordingly dismisses the Government’s objection for non-exhaustion of domestic remedies related to the applicants’ status as shareholders; 7.", "Holds that the question of the application of Article 41, in so far as it concerns the claims for pecuniary and non-pecuniary damage, is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicants to submit, within four months, their written observations on the matter and to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be; 8. Holds (a) that the respondent State is to pay, within three months, EUR 4,820 (four thousand eight hundred and twenty euros), to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable to the first and third applicants and the second applicant’s heir, in respect of costs and expenses, of which EUR 653 (six hundred and fifty-three euros) are to be paid jointly to the first applicant and the second applicant’s heir, EUR 1,261 (one thousand two hundred and sixty-one euros) are to be paid to the third applicant, and the remainder directly to Ms Margaritova-Vuchkova; (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; 9. Dismisses the remainder of the claims for just satisfaction in so far as they concern costs and expenses. Done in English, and notified in writing on 19 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekErik MøseRegistrarPresident" ]

[ "FIRST SECTION CASE OF KITANOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 15191/12) JUDGMENT STRASBOURG 22 January 2015 FINAL 22/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kitanovski v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15191/12) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Macedonian nationals, Mr Aleksandar Kitanovski (“the first applicant”) and Mr Tihomir Kitanovski (“the second applicant”), on 9 March 2012. The second applicant is the first applicant’s father. 2. The applicants were represented before the Court by Mr V. Kitanovski and Mr T. Kitanovski respectively, lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.", "3. The applicants alleged that during an incident that took place on 10 June 2009 police officers had put the life of the first applicant at risk; had ill-treated him; and that there had been no effective investigation of the matter. 4. On 12 October 2012 the President of the First Section decided to give notice of the application to the Government. It was also decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1988. Both applicants live in Skopje. A.", "The police pursuit and arrest of the first applicant 1. The Government’s version of events 6. On 10 June 2009 at about 1:30 a.m. the first applicant, driving a car belonging to the second applicant, was coming back home from a discotheque. In the centre of Skopje, two traffic police officers (J.B. and J.A. ), who were in uniform and authorised by law (Order no.", "1493 of 9-10 June 2009) to conduct traffic stops, ordered, using a flashlight, the first applicant to stop the car for a routine inspection. Instead of stopping, the first applicant made a U-turn and accelerated away. J.B. and J.A. followed him in a police car with active sirens and visual warnings. Four police cars and several cars from the “Alfa” special mobile police unit joined the pursuit.", "There were fifteen police officers involved in the chase. 7. A police car with flashing lights was used to block the street in order to stop the first applicant. The latter, however, drove around the roadblock. He continued driving at high speed.", "This was confirmed by written statements given by several police officers (see paragraphs 16, 18 and 19 below), as well as in a letter of 21 November 2009 that the Ministry of the Interior sent to the Helsinki Committee in reply to a request for information. 8. A second roadblock was established. The first applicant attempted to go around it by mounting the pavement on the left side of the street, where, as the Government maintained, Z.G., a police officer from the “Alfa” unit, was standing. M.D., also a member of the “Alfa” unit, who was standing on the opposite side of the street next to the roadblock, fired two shots from an automatic rifle in the direction of the car’s right front tyre (see paragraph 16 below).", "Z.G., whom the car was allegedly approaching, jumped aside in order to avoid being hit by the car. He lost his balance and, while falling, fired two shots from a pistol towards the car’s back right tyre (see paragraph 17 below). As specified in the letter of 21 November 2009 (see paragraph 7 above), the bullets fired by Z.G. hit the car, with one bullet hitting the rear of the car between the rear door and the roof. As a result, the rear window shattered.", "The second bullet passed through the rear door of the car and the rear seat and ended up hitting the front passenger seat. 9. The first applicant’s car stopped 100 m beyond the roadblock. According to the letter of 21 November 2009, police officers approached the first applicant’s car. One of them had a gun pointed at him.", "10. I.A., a police officer from the “Alfa” unit, opened the door of the car. Since the first applicant did not get out, he twisted his arm behind his back, pulled him out of the car and made him lie down on the street. M.B., a police officer from the “Alfa” unit, arrived and handcuffed the first applicant. The Government provided copies of reports that I.A.", "and M.B. had submitted on 10 June 2009 to the Ministry of the Interior regarding the use of means of force (see paragraph 20 below). According to the Government, there were over twenty police officers present at the scene observing the first applicant’s arrest. 2. The applicants’ version of events 11.", "In their application, the applicants submitted that at 2:15 a.m. on 10 June 2009 the first applicant, driving the second applicant’s car, had passed by a traffic police patrol and he had started driving backwards in order to reach a fast-food restaurant. Police officers from the “Alfa” mobile unit had started chasing him in a police car through the streets of Skopje. A roadblock with an unmarked car had been established in order to stop him. After he had driven around the roadblock, police officers had started firing at the car with a pistol and an automatic rifle in burst mode (рафално) “without any reason-only because maybe he had avoided a routine patrol control and had not stopped at the roadblock arranged with unmarked cars (необележани возила на кои немало никакви ознаки дека се полициски) established by the Alfa unit”. As a result, the car had been damaged (see paragraph 8 above).", "12. After the police had fired shots, the first applicant had stopped the car. He had been dragged out of the car by several police officers, who had started hitting him all over his body. He had been beaten with truncheons, and punched and kicked in the face, head, stomach and back. He had been handcuffed.", "The beating had continued after he was handcuffed. B. Other relevant events of 10 June 2009 1. Medical examination of the first applicant 13. After his arrest, the first applicant was taken to a hospital in order for blood and urine tests to be carried out.", "He was then taken to a police station. He was released at 1 p.m. Following his release, he went to Skopje Health Centre, where a medical certificate was issued that day at 2:26 p.m., which indicated the following injuries: contusions on the back and left forearm, as well as scrapings on the back and forehead (contusio corporis et antebrachii L; dex. et regio dorsi cum; excoriationes regio dorsi et frontis). The certificate further provided an account of events as described by the first applicant, namely that he had sustained the injuries during an assault by police officers that had occurred at about 3 a.m. that day.", "2. Medical examination of Z.G. 14. On 10 June 2009 Z.G. was admitted to the Skopje Health Centre, where he was diagnosed as suffering from a head injury and bruising to the torso.", "As stated in a certificate issued on that date at 4:36 a.m., he had been injured from falling onto gravel. He complained that he had a headache, chest pain and nausea. The same symptoms were confirmed in another medical certificate of that date. C. Relevant documents regarding the events of 10 June 2009 1. Written statements by police officers regarding the events of 10 June 2009 15.", "The Government submitted copies of written statements given by over twenty police officers who had taken part in or otherwise witnessed the police chase and arrest of the first applicant on 10 June 2009. All statements, except the statement of M.Du. (see paragraph 18 below), were given on 10 and 11 June 2009. They all confirmed the events described above (see paragraphs 6-10 above). 16.", "The relevant parts of M.D.’s statement read as follows: “After we had received information that the car was driving at high speed ... Alfa-56 announced that [the car] had not stopped upon their signal and [was driving towards] two colleagues in order to escape ... we set a ... car with the warning lights on (со означени светлосни сигнали) to block the street and we left the car wearing police vests in order to stop the car and apprehend [the driver]. At one point we saw that the car was approaching at high speed. We signalled with lights that the car should stop. Then I realised that the car wouldn’t stop and that it was being driven towards my colleague Z. (Z.G.)", "with the intention of hitting him and escaping again. In order to prevent [the driver] from absconding, I fired with an automatic rifle... [I fired] two shots towards the right front wheel. At that point I saw that my colleague Z. had jumped aside and escaped being hit by the car. While falling, he fired two shots from his service gun ... After the pursuit had ended and [the first applicant] was under control, colleague Z. complained that he had a severe headache and back pain and he started to vomit. I then drove him with the official car to City Hospital ...” 17.", "The relevant parts of Z.G.’s statement read as follows: “I saw the car driving in my direction at high speed and without stopping upon [our] signalling [with] lights [to do so]; I noticed that [the driver] was driving towards the pavement where I was standing with the aim of hitting me in order to escape; I tried to avoid being hit, but I slipped; while falling I fired two shots from my service gun ... aiming at the back right wheel ...” 18. On 2 July 2009 M.Du., a police officer, stated: “... Alfa 56 announced that the car had not stopped upon their signal and with the intention of hitting two colleagues, who had tried to stop [the car], [the driver] had [driven on and] escaped. After the announcement, I, as the driver of a car ... with active visual warning lights and sirens (со вклучени светлосни и звучни сигнали) ... formed an appropriate roadblock... We saw the car driving towards us with excessive speed; it was not braking, but it mounted the pavement in order to avoid our roadblock; it was being driven in the direction of our colleague Z.G. with the aim of hitting him and making it possible [for the driver] to escape. The team leader M.D., being aware that the life of our colleague was at risk, fired two shots aimed at the tyres.", "The car continued driving at high speed (approximately 130-140km/h) towards my colleague Z., who ... stepped aside ... and while falling, he fired two shots towards the rear tyre ...” 19. I.A., I.J. and T.D., police officers, confirmed that the first applicant had not stopped the car and had gone around the first roadblock, putting the lives of police officers at risk. In this connection T.D. stated: “... We placed our car ... in the middle of the street with active visual warning lights to form a roadblock in order to stop the car, which was driving towards us at high speed.", "It was followed by five cars with active warning lights. When the car arrived in front of us, the driver did not reduce his speed, but he made a sharp left turn, endangering our safety; he passed next to us ...” 20. The relevant parts of the reports that I.A. and M.B. submitted to the Ministry of the Interior regarding the use of means of force read as follows: “... Because [the first applicant] passively resisted [arrest] by disregarding our orders to get out of the car, I [I.A.]", "opened the door of the car and twisted his left arm; he was taken out of the car and [made to] lie down on the ground. [The first applicant] continued to resist until colleague M.B. arrived and handcuffed him. “...[The first applicant] resisted by disregarding [our] orders; handcuffs were used because colleague I.A. was not able to put handcuffs [on him] by himself.” 21.", "Both I.A. and M.B. stated that the first applicant had no visible injuries. 22. Police officers M.M., A.A. and D.S.", "stated that the first applicant’s car was stopped at about 2:20 a.m. 2. Complaint of the first applicant filed with the Ombudsman 23. On 15 June 2009 the first applicant brought the incident of 10 June 2009 to the attention of the Ombudsman. In his letter of complaint, he submitted that: “... before I reached the fast-food restaurant, I noticed that a police car was driving behind me. Then, I accelerated because I was afraid to be stopped since I had drunk a bit and I was afraid that my driving license might be seized...", "While I was driving, the police established several roadblocks that I successfully bypassed, but I was stopped in the end. Before I was stopped, I don’t know why, the police fired from an automatic gun in burst mode (од кое се слушна рафално пукање)”. 24. He complained that the police had overstepped their powers by having used firearms and beaten him up. As regards the alleged police brutality, he submitted that: “After I had gotten out of the car, I was brutally assaulted by seven or eight officers, who beat me severely despite the fact that I did not resist ... [the] battering lasted 4-5 minutes and after I had been handcuffed, they continued to beat me ...” 25.", "He further stated: “There is no merit in their [police officers] allegation that I endangered the life of a police officer and that owing to that other [officers] used firearms. I consider it to be a mere farce used to justify the firing [of shots] and beating [me up].” 3. Report on the assessment of whether the use of physical force by police officers M.D., I.A., M.B. and Z.G.was justified (Извештај за оценка на оправданоста за употреба на физичка сила) 26. On 3 July 2009 a superior police officer within the “Alfa” mobile police unit drew up a report regarding the use of force during the incident of 10 June 2009.", "According to the report, the police chase commenced after the driver (the first applicant) had refused to stop the car upon a signal by traffic police officers. Sirens and visual warnings by police cars and officers wearing police vests had been used in an attempt to stop the car. The first applicant, instead, had driven at high speed in the direction of police officers “with the aim of hurting them and escaping”. In order “to disable the car [and stop the first applicant from] absconding”, M.D. had fired two shots aimed at the right front tyre and Z.G.had fired two shots in direction of the back right tyre.", "After the first applicant had refused to get out of the car, which had stopped 100 m beyond the roadblock, I.A. and M.B. had used force to overcome his resistance, namely they had twisted his arm and handcuffed him. The report concluded that: “On the basis of the official notes and the interview conducted (no further details were specified) as to certain relevant facts and having regard to the fact that [the first applicant] endangered the lives of police officers by attempting to hit them in order to escape, I consider the physical force used, (namely) the twisting of (his) arm and handcuffs ... as well as the shots fired towards the car ... [to have been] justified in accordance with section 27 of the Decree regarding the use of means of force and firearms (see paragraph 44 below)”. 4.", "Expert report of 14 July 2009 27. On 14 July 2009 the Ministry of the Interior drew up an expert report, according to which two bullets had been fired from Z.G.’s pistol and two bullets from M.D.’s automatic rifle. The bullet recovered from the back of the front passenger seat in the car driven by the first applicant had been fired from Z.G.’s pistol. Blood and urine alcohol tests had confirmed the presence of blood alcohol levels of 0.50 and 0.40 promille (the letter of 21 November 2009 (see above) had specified a blood alcohol level of 0.80 promille) in the first applicant. No alcohol had been found in the blood of Z.G.", "or M.D. D. Criminal complaint by the first applicant 28. On 14 July 2009 the second applicant, on behalf of the first applicant, lodged a criminal complaint with the public prosecutor against unidentified police officers on account of endangerment, torture and ill-treatment. In the complaint, the second applicant set out a factual account of the incident and alleged that after he had gone past the roadblock formed with a police car, the officers concerned had started shooting at his car “without any reason-only because maybe he had avoided a routine patrol control and had not stopped at the roadblock established by the police”. The complaint stated inter alia: “After the car had stopped, police officers pulled [the first applicant] out of the car; then a larger group of police officers arrived and they all started hitting him all over his body with truncheons, [and] punching and kicking [him].", "Then, they asked him why he had not stopped (as ordered) by the police patrol ... one of the police officers from the Alfa unit ordered [the first applicant] to leave Skopje on the threat that he would beat him up every time he saw him. After the [initial] beating, [the first applicant] was handcuffed and continued to be hit all over his body.” 29. The first applicant submitted in support a copy of the medical certificate of 10 June 2009 (see paragraph 13 above), a copy of an X-ray taken on the same date, nine photographs, and an expert report regarding the damage to the car. 30. On 20 October 2009, A.M., the public prosecutor who examined the first applicant’s complaint, contacted the Ministry of the Interior in order to obtain information regarding the identity of the police officers involved in the incident of 10 June 2009 and any other relevant documentary evidence.", "On 13 January 2010 the Ministry of the Interior forwarded to the public prosecutor a copy of a criminal complaint that it had filed against the first applicant on account of “assaulting an officer in performance of his duties” (see paragraph 36 below). 31. Between 31 March 2010 and 21 June 2011, the first applicant addressed the public prosecutor on four occasions seeking the initiation of criminal proceedings as provided for by law. By letters of 7 December 2010 and 1 June 2011, he further informed the public prosecutor of the identities of Z.G., M.D., J.B., J.A., I.A. and M.B., which he had meanwhile discovered.", "32. By letter of 23 September 2011, A.M. notified the first applicant that: “... there are no grounds for action [by] the public prosecutor... due to the absence of any suspicion that the police officers are guilty and that they committed a crime subject to State prosecution.” 33. There was no instruction as to whether the first applicant could take over the prosecution. 34. On 23 January 2013 A.M. (see paragraph 30 above) rendered a decision by which he rejected the criminal complaint lodged on behalf of the first applicant, on the basis that the suspected criminal offences were not subject to State prosecution.", "On the basis of the first applicant’s criminal complaint and the Ministry’s reply of 13 January 2010 (see paragraph 31 above), the public prosecutor established that after the first applicant had gone past the roadblock (by mounting the pavement on the left side of the street) and continued driving towards Z.G., both M.D. and Z.G. had fired four shots “in order to stop [the car] ... [the first applicant had then] stopped, but he had refused to get out of the car, as requested by the police officers, owing to which permissible physical force had been used by police officers I.A. and M.B. in order to neutralise and arrest him”.", "On the basis of the case file against the first applicant (see paragraph 36 below), the public prosecutor concluded that the police officers had acted in accordance with the law and section 27(1) of the Decree regarding the use of means of force and firearms in order “to prevent the perpetrator of a serious criminal office, namely Aleksandar Kitanovski, from absconding. For this concrete action, an indictment was filed against (the first applicant) whom this prosecution’s office considers guilty”. 35. The public prosecutor further found, on the basis of I.A.’s and M.B.’s statements given for the purpose of the case against the first applicant, that the latter had resisted arrest and that the force used against him had been justified. Accordingly, there were no grounds for their prosecution.", "E. Criminal complaint against the first applicant 36. On 29 September 2009 the Ministry of the Interior lodged with the public prosecutor a criminal complaint accusing the first applicant of having assaulted a police officer in the performance of his duties. On 1 April 2011 the public prosecutor, lodged an indictment against the first applicant. 37. On 3 December 2013 the Skopje Court of First Instance, in the presence of the first applicant and A.M., as the representative of the prosecution’s office, found the first applicant guilty on account of an assault of a police officer in performance of the duties of public safety and arresting an offender (при вршење на работи на јавна безбедност што се однесуваат на фаќање на сторител на кривично дело).", "It also sentenced him to a suspended prison term of a year and a half. The court found that he had bypassed the roadblock by mounting the pavement on the left side of the street driving towards Z.G., who, at the time, had been standing on the pavement. In order to avoid being hit by the car, Z.G. had jumped aside, as a result of which he had sustained a head injury and bruising to the torso. Z.G.", "did not join the prosecution and waived the right to claim compensation against the first applicant. As indicated in the judgment, Z.G. gave two statements regarding the incident. In the statement of 13 December 2011, he said that, at the relevant time, he was standing on the left side of the street, while in the statement dated 8 February 2013, he specified that the first applicant’s car had bypassed the roadblock at the right side of the street mounting the pavement where he (Z.G.) was standing.", "The court heard oral evidence from the first applicant, D.M., I.A., M.B., B.J. and admitted as evidence the reports and medical certificates indicated above (see paragraphs 13, 14, 26 and 27). 38. At the trial, the first applicant argued that during the chase he had bypassed two roadblocks by mounting the pavement on the left side of the street, where no police officer had been standing. Accordingly, by circumventing the roadblocks he had neither injured nor endangered the life of any police officer.", "The court dismissed his defence as self-serving. 39. The first applicant appealed against the judgment. The higher public prosecution’s office proposed that the Court of Appeal accept the appeal. 40.", "At a public session held on 19 March 2014, the Skopje Court of Appeal upheld the first applicant’s appeal and remitted the case for fresh examination. It held that the trial court’s judgment was unclear and that certain facts had no basis in admitted evidence. It found that insufficient evidence had been admitted as to what criminal offence the first applicant had allegedly committed. It further referred to the contradictory statements of Z.G. regarding his position on the street when the first applicant had gone past the second roadblock.", "Since relevant facts had not been established with sufficient clarity, the trial court had been unable to determine whether the first applicant had intended to commit the crime with which he had been charged. 41. The criminal proceedings are pending before the trial court. II. RELEVANT INTERNATIONAL MATERIAL A.", "United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 42. The relevant parts of these principles, which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana (Cuba) from 27 August to 7 September 1990, provide as follows: “... 9. Law enforcement officials shall not use firearms against persons except in self‑defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. 10.", "In the circumstances provided for under principle 9, law enforcement officials shall 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 unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” B. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 September to 1 October 2010, CPT/Inf (2012) 4, 25 January 2012 43. The relevant part of the CPT Report of 2012 reads as follows: “10. The CPT has noted that the number of allegations of ill-treatment by law enforcement officials, as well as the severity of such allegations, has diminished since previous visits. Nonetheless, in the course of the 2010 visit, a significant number of persons interviewed by the delegation alleged that they had been ill-treated by police officers, primarily civilian crime inspectors and members of the mobile Alfa teams in Skopje.", "The alleged ill-treatment consisted of punches and kicks to the body and head as well as the use of batons. In most instances, the alleged ill-treatment is said to have taken place in the offices of the crime inspectors in police stations (and appeared to be related to attempts to extort confessions from the suspects) or during transfer from the place of arrest to a police station ...” III. RELEVANT DOMESTIC LAW Decree regarding the use of means of force and firearms (Уредба за употреба на средства на присилба и огнено оружје, Official Gazette no.22/1998) 44. The relevant provisions of the Decree read as follows: Section 4 “When it is possible to use more [than one] means of force, only those means which, in the circumstances, cause no or less damage should be used.” Section 11 “A competent official can use, after a prior warning, a truncheon or physical force to overcome resistance by an individual who is disturbing the public order and public safety; or an individual resisting his or her arrest, apprehension or detention; to repel an assault against him or her, another individual or an object that is under guard; to forcibly remove an individual from a place; or [to remove] an individual who is resisting official authority.” Section 12 “The use of ... physical force concerns ... hand-to-hand [combat] or other techniques of self-defence or assault (applied in order) to overcome resistance by individuals as specified under section 11 of this Decree.” Section 13 “... (2) Resistance can be active and passive. ... (4) Resistance is passive when an individual disregards an order of a competent official or puts him or herself in a position ... hindering the performance of official duties.” Section 18 “(1) Vehicle immobilising devices (“hedgehogs”) can be used when it is necessary to stop a car and prevent the flight of an individual in that car who has been caught committing an offence subject to five years’ imprisonment, as the lowest sentence; or (to prevent the flight of) a detainee or an individual against whom there is a valid arrest warrant in respect of such an offence, after he or she has disregarded a lawful order of a competent official to stop the car.", "(2) When the devices specified in subsection 1 are used, traffic warning signals and warning lights, if necessary, must be placed at a reasonable distance on the street.” Section 22 “(1) A competent official, who cannot use any other means of force in order to protect the life of a third party or to repel a direct attack endangering his or her life, can use a firearm if he or she is subject to physical attack by a method or means (firearm, dangerous weapon or any other similar life-threating object) that directly endangers his or her life... (2) The individual concerned should be loudly warned before a firearm is used. ...” Section 24 “When an individual, who has committed an offence subject to at least five years’ imprisonment, or has been deprived of his or her liberty, or in respect of whom there is an arrest warrant in relation to such an offence, escapes, a competent official can use a firearm in order to prevent him or her from absconding if he or she has previously: ... - tried to apprehend him or her by saying simultaneously: “Stop, I’ll fire!” If the individual does not stop, the competent official must repeat the warning and if after the repeated warning he or she does not stop, the competent official may use a firearm, trying, in the first place, to immobilise the individual. ...” Section 27 “(1) A competent official who has used means of force or a firearm is obliged to submit a written report to his or her immediate superior, who will assess whether their use was lawful and justified.” THE LAW I. ALLEGED VIOLATIONS OF THE CONVENTION 45. The applicants complained under Article 3 of the Convention that the first applicant’s life had been put at risk and that he had been ill-treated by police officers, who had beaten him with truncheons, had punched and kicked in the face, head, stomach and back.", "They further complained under this Article that there had been no effective investigation into his allegations. Relying on Article 13, they complained that there had been no effective remedy in respect of their complaints under Article 3 of the Convention. Lastly, they complained under Article 6 that they had been denied the right of access to court due to the failure of the public prosecutor to reject the criminal complaint by means of a formal decision. The Court considers that this last complaint falls to be examined under Article 13 of the Convention, as it concerns a particular aspect of the right to an effective remedy under this provision. It further considers that the applicants’ complaint concerning the risk to the first applicant’s life should be examined under Article 2 of the Convention.", "Articles 2 (the applicability of which the Court will examine, see below), 3 and 13 of the Convention read as follows: Article 2 “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 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. Admissibility 1.", "The victim status of the second applicant (a) The parties’ submissions 46. The Government challenged the victim status of the second applicant, arguing that he had not been directly affected by the events complained of. 47. The applicants did not comment. (b) The Court’s assessment 48.", "It is not disputed between the parties that the events complained of only concerned the first applicant. That the second applicant was the owner of the car used by the first applicant in the incident, and his father, does not confer on him the status of a victim in respect of the complaints submitted before the Court. The second applicant was not directly affected by the acts and/or omissions in the present case (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III). Furthermore, there are no special circumstances, as to the capacity of the first applicant who was the direct victim of the events complained of, to appear before the Court. 49.", "It follows that the part of the application concerning the second applicant is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 2. Applicability of Article 2 of the Convention (a) The parties’ submissions 50. The Government contended that Article 2 was not applicable to the present case. Firearms had been used in self-defence (самоодбрана) and extreme necessity (крајна нужда) after the first applicant had gone around the second roadblock and put the life of a police officer at risk.", "In so doing, the police had conducted themselves with the utmost diligence; they had not put the lives of the first applicant or any other police officers at risk. This had been demonstrated by the fact that the police officers had aimed only at the tyres of the first applicant’s car. 51. The first applicant did not comment. (b) The Court’s assessment 52.", "According to the Court’s case-law, it is only in exceptional circumstances that actions by State agents which do not result in death may disclose a violation of Article 2 of the Convention. It is correct that the criminal liability of those concerned in the use of force is not in issue in proceedings brought under the Convention. Nonetheless, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case State agents’ actions in inflicting injury but not death are such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose of that Article. In almost all cases where a person is allegedly assaulted or ill-treated by the police or soldiers their complaints will rather fall to be examined under Article 3 of the Convention (see Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 36, ECHR 2012 (extracts), and the references cited therein).", "53. In the present case, the use of firearms against the first applicant did not turn out to be lethal. This, however, does not exclude in principle an examination of his complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing, but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life (see İlhan v. Turkey [GC], no. 22277/93, § 75, ECHR 2000‑VII). In fact, the Court has already examined complaints under this provision where the alleged victim did not die as a result of the impugned conduct (see Sašo Gorgiev, cited above, § 38, and Makaratzis v. Greece [GC], no.", "50385/99, § 55, ECHR 2004‑XI). 54. What the Court must determine in the present case is whether the force used against the first applicant was potentially lethal and what kind of impact the conduct of the police officers concerned had, not only on his physical integrity, but also on the interest the right to life is intended to protect. 55. On the facts of the case, it is not disputed that the first applicant was pursued by a large number of police officers (see paragraph 6 above).", "The evidence adduced before the Court suggest that the police used their weapons in order to stop the first applicant from absconding and effect his arrest, as well as to stop him putting the life of police officers at risk (see paragraphs 16, 20, 26 and 34 above). According to the Government, the police also resorted to the use of firearms in self-defence (see paragraph 50 above). The Court notes that all of the foregoing are the instances contemplated by the second paragraph of Article 2 in which resorting to lethal, or potentially lethal, force may be legitimate. 56. The Court further observes that no evidence has been adduced in the proceedings before it that the police, when using firearms, had the intention of killing the first applicant.", "Neither was any such suggestion made by the first applicant. It notes, however, that the fact that the latter was not killed was fortuitous. On the available material, it is clear that four bullets were fired at the first applicant’s car, two of which were fired from an automatic rifle and the remaining two from a pistol. All of them were aimed at the car’s tyres. It cannot be established whether the automatic rifle was set, at that time, to burst mode, as claimed by the first applicant (see paragraphs 11 and 23 above).", "As regards the use of the automatic fire mode, the Court has already stated that it is absolutely impossible to aim with a reasonable degree of accuracy using automatic fire (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 108, ECHR 2005‑VII). In any event, the Court notes that the bullets fired from the automatic rifle have never been found, nor was their trajectory established. That demonstrates poor targeting and an increased risk of fatal consequences. Both bullets fired from the pistol hit the rear part of the car, one of them hitting the car between the rear door and the roof.", "As a result, the rear window shattered. The second bullet penetrated the rear door of the car, passed through the rear seat and ended up hitting the front passenger seat. In this connection it is not without relevance that Z.G., when firing at the car, was not in a steady shooting position (see paragraphs 8, 16, 17 and 18 above). That undoubtedly influenced the accuracy of his aim, given the fact that the impact sites of the shots he fired followed a horizontal or upward trajectory to the car driver’s level and not a downward one, as one would expect if the tyres, and only the tyres, of the vehicle were being shot at by the pursuing police. 57.", "In the light of the above circumstances, and in particular the degree and type of force used, the Court concludes that the first applicant was the victim of conduct which, by its very nature, was capable of putting his life at risk, even though he in fact survived. Article 2 is thus applicable in the instant case. 3. Conclusion 58. The Government did not raise any other objection as regards the admissibility of the application in so far as it concerns the first applicant.", "59. The Court notes that it 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. As regards the shooting incident of 10 June 2009 (a) The parties’ submissions 60. The first applicant reiterated that the police had put his life at risk without having had any reasonable grounds to do so. 61. The Government submitted that after the first applicant had not stopped the car upon being signalled to do so by police officers in uniform, they had reasonably suspected that it was being driven by an individual wanted for a crime or attempting to conceal evidence of a crime.", "This suspicion had been reasonable given that the crime rate was much higher late at night, when the critical events had taken place. During the chase, the first applicant had been warned, with sirens and light signals, to stop the car. Two roadblocks formed with a police car with active warning lights had been set up in order to force the first applicant to stop. As noted above, firearms had been used in self-defence and extreme necessity as the only reasonable way to stop the car. (b) The Court’s assessment 62.", "The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention. The situations in which deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims.", "In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see Timus and Tarus v. the Republic of Moldova, no. 70077/11, §§ 46 and 47, 15 October 2013, and Esmukhambetov and Others v. Russia, no. 23445/03, § 138, 29 March 2011). 63. The Court has already established (see paragraph 57 above) that, given the context in which the first applicant’s life was put at risk and the nature of the impugned conduct of the State agents concerned, the facts call for examination under Article 2 of the Convention.", "Accordingly, it must determine whether the use of potentially deadly force against the first applicant was justified in the circumstances of the case, within the meaning of Article 2 § 2 (a) and (b) of the Convention (see paragraph 56 and 61 above). 64. As regards the relevant circumstances of the incident, the Court notes that there has so far been no judicial determination of the facts of the instant case at the domestic level (see, conversely, Makaratzis, cited above, § 47). The criminal complaint submitted in relation to the incident against the police officers concerned did not result in any findings of fact or law by the domestic courts and the criminal case against the first applicant is still pending. In such circumstances, the Court will apply, in assessing evidence, the standard of proof “beyond reasonable doubt”.", "Such proof follows from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Cobzaru v. Romania, no. 48254/99, § 64, 26 July 2007). 65. The Court notes that the first applicant was driving the car in the centre of Skopje when he approached a traffic police patrol. The parties presented conflicting versions of events as to whether he was given a signal with a flashlight to stop the car for a routine inspection.", "However, the first applicant accepted that he might have avoided a routine control by the traffic police patrol (see paragraphs 11 and 28 above). Instead of stopping, he accelerated and drove off. 66. The first applicant’s failure to stop the car caused a spontaneous chase, which involved several police cars and at least fifteen police officers (see paragraph 6 above). The Court does not need to establish whether the police used sirens and visual warning signals, as averred by the Government (see paragraph 6 above).", "It is so since the first applicant was aware that police cars were involved in the pursuit (see paragraphs 11, 23 and 28 above). He did not stop the car and continued driving with excessive speed through the streets of Skopje. In such circumstances, the police arranged alternative means to force the first applicant to stop the car, namely they established two roadblocks each formed with a single police car (see paragraphs 7, 8, 11, 28 and 38 above). Both roadblocks, as established, proved inadequate to stop the first applicant, who bypassed them on both occasions. The Court does not overlook the fact that the police did not have sufficient time to evaluate all the parameters of the situation, which gave rise to developments to which they were called upon to react without prior preparation.", "67. The shooting incident complained of occurred at the second roadblock, which the first applicant’s car was approaching at excessive speed. The first applicant attempted to bypass it by mounting the pavement (see paragraphs 8, 34 and 38 above). The Government, relying on the material that had become available in the course of the domestic inquiries (see paragraphs 16-22 and 26 above), stated that in so doing, the first applicant drove towards Z.G., a member of the “Alfa” mobile police unit, who was standing on the pavement next to the roadblock. In the complaint to the Ombudsman (see paragraph 25 above) the first applicant denied that he had endangered the life of any police officer.", "Likewise, in the criminal proceedings against him, he argued, more explicitly, that he had mounted the pavement “where no police officer had been standing”. On the other hand, in his submissions to the Court the first applicant did not argue that he had not driven towards Z.G. (see paragraphs 11 and 38 above). The trial court’s failure to establish this fact with sufficient clarity was a reason for the Skopje Court of Appeal to remit the case for fresh examination. The higher court considered that fact relevant in order to establish whether the first applicant had any intention to commit the alleged crime (see paragraphs 38 and 40 above).", "68. In view of the above, the Court is unable to establish “beyond reasonable doubt” whether the first applicant drove directly towards Z.G. when he had bypassed the second roadblock. Any inferences in this respect would also prejudge the ongoing criminal case against the first applicant. However, this issue of fact is in any event not the determining factor for the present case, which concerns the alleged State’s responsibility under Article 2 of the Convention for the use of firearms by police officers.", "69. In this connection the Court notes that the Government advanced two defence grounds to justify the use of firearms: self-defence and extreme necessity (see paragraph 50 above). As regards the first point, the Court observes that it has not been argued that M.D. acted in self-defence (see paragraphs 16-18 above) and, having regard to the difficulties in establishing the facts (see paragraph 68 above), the Court cannot base its findings on the allegation that his actions were caused by a need to protect the life and physical integrity of any third person. On the other hand, as regards Z.G.", "the Court observes that the bullets fired from Z.G.’s gun, unlike the bullets fired from M.D.’s rifle, hit the first applicant’s car (see paragraph 8 above). The Court considers it important that Z.G. shot at the first applicant’s car after it had already gone past the roadblock and, thus, could no longer pose a threat to his physical integrity. That is confirmed by the direction of the shots and the ballistic test (see paragraphs 8 and 27 above). Accordingly, the Court cannot accept the Government’s assertion that Z.G.", "had recourse to firearms in self-defence. Neither was there any evidence that could lead the Court to conclude that Z.G. fired in the honest belief that the life and physical integrity of any third party were in danger. 70. As to whether the use of potentially lethal force was unavoidable “in order to effect a lawful arrest” of the first applicant within the meaning of sub‑paragraph (b) of paragraph 2 of Article 2, the Court reiterates that the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity.", "It considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost (see Nachova and Others, cited above, § 95). 71. The evidence adduced before the Court suggests that the first applicant was driving the car at excessive speed. However, apart from the still disputed incidents when he went past the roadblocks, no evidence was submitted that during the chase he had put the lives of police officers, or others, at risk. Furthermore, no information that would link the first applicant or the car with any criminal activity had been communicated to the pursuing officers, although there was sufficient time during the chase (see paragraphs 6 and 22 above) for any such information to come to light.", "The control centre, through which the operation was organised, issued no warning that the first applicant might be armed or dangerous (see, conversely, Makaratzis, cited above, § 64). In such circumstances, the fact that the events took place at night, although relevant, cannot be regarded as sufficient, in the absence of any objective evidence, to justify the police’s belief that the first applicant was a dangerous criminal (see paragraph 61 above). Lastly, the police could have established, on the basis of the registration plates of the car, which had not been reported stolen, the identity of the owner of the car and his address, as well as those of the first applicant. The foregoing, coupled with the absence of any threat to life and limb after he had driven past the second roadblock (see paragraph 69 above), is sufficient to lead the Court to conclude that the use of potentially lethal force against the first applicant, whose behaviour was certainly irresponsible and open to criticism, was not absolutely necessary to effect his arrest. 72.", "Finally, the Court notes that both M.D.’s and Z.G.’s firing was not preceded by warning shots, as required by both international and domestic law (see paragraphs 42 and 44 above), as well as the Court’s case-law (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 177, ECHR 2011 (extracts)). Neither was it presented with any argument that warning shots were, in the circumstances, impossible or otherwise inappropriate. 73. Against this background, the Court concludes that in the instant case the use of potentially lethal force was not absolutely necessary within the meaning of Article 2 § 2 of the Convention.", "Accordingly, the first applicant was the victim of a violation of this Article in its substantive aspect. 2. As regards the alleged ill-treatment of the first applicant during his arrest (a) The parties’ submissions 74. The Government submitted that the first applicant had been injured in the incident that followed after his car had been stopped, when he had resisted arrest by refusing to get out of the car. The nature and location of the injuries (redness on the forehead and redness and scratches on the lower part of the back) suggested that they had been inflicted when the police officers had pulled him out of the car, twisted his arm, and made him lie down on the ground.", "According to the Government, there had been over twenty police officers when the applicant had been stopped and arrested. In such circumstances, any unlawful treatment would have been noticed and prevented. 75. The first applicant reiterated that he had been subject to police brutality. He pointed out that the Government had not contested the medical certificate of 10 June 2009 (see paragraph 13 above), which had confirmed the injuries that he had sustained at the hands of the police.", "(b) The Court’s assessment 76. 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 (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; and Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § 67, 19 April 2012).", "It further recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § 47, 15 February 2007). 77. The Court emphasises that, in respect of a person who is placed under the control of the authorities, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ertuş v. Turkey, no.", "37871/08, § 27, 5 November 2013). 78. Turning to the present case, the Court finds it incontrovertible that the first applicant sustained certain bodily injuries, which were noted in the medical certificate (see paragraphs 13 and 74 above). The Government did not dispute that those injuries reached the minimum threshold required under Article 3 of the Convention and that they had been inflicted during the first applicant’s arrest on 10 June 2009 (after he had stopped the car). Accordingly, the Court must determine whether the treatment to which the first applicant was subjected during his arrest was compatible with this Article, namely whether the recourse to physical force was strictly necessary and proportionate (see Subaşi and Çoban v. Turkey, no.", "20129/07, § 36, 9 July 2013). 79. The Court observes that the parties did not dispute that once the car had been blocked the applicant had been taken out of it by Alfa officers (see paragraphs 12, 20, 26 and 28 above). According to the Government, it was so since he had refused to get out of the car as ordered by the police officers concerned. That version was based on the witness statements made by the arresting officers I.A.", "and M.B., who had been direct protagonists in the events complained of. Obviously, the internal inquiry carried out by the Ministry of the Interior was also based, at least to a decisive extent, on evidence produced by these witnesses (see paragraphs 20 and 26 above). The Court notes however, that it has not been presented with any other evidence in support of the Government’s version of events. In this connection it observes that none of the twenty police officers who, as maintained by the Government (see paragraph 74 above), witnessed the applicant’s arrest, produced any evidence in this respect. The written statements of police officers submitted in the case file (see paragraphs 15‑19 and 22 above) also did not contain any information as to whether the applicant had resisted his arrest.", "In such circumstances, and in view of the fact that the facts of the dispute have not been the subject of any determination by a national court, the Court does not consider that the Government demonstrated with convincing arguments that the use of force, which resulted in the applicant’s injuries, was strictly necessary and proportionate. Accordingly, it concludes that the force used was excessive and unjustified in the circumstances. 80. There has therefore been a violation of Article 3 of the Convention on account of the treatment to which the applicant was subjected during his arrest and which the Court considers to be degrading within the meaning of this provision. 3.", "The alleged lack of an effective investigation (a) The parties’ submissions 81. The first applicant maintained that there had been no effective investigation into his allegations that the police had put his life at risk and had ill-treated him. He disputed the validity of the public prosecutor’s decision of 2013 (see paragraph 34 above), arguing that it had been rendered for the purposes of the proceedings before the Court and it had been never served on him. The public prosecutor had refused to prosecute the police officers concerned, notwithstanding that the offences which they had been accused of in the criminal complaint were subject to State prosecution. 82.", "The Government submitted that the public prosecutor, by the decision rendered on 23 January 2013, had rejected the first applicant’s criminal complaint on the basis of the available evidence in the case file submitted against him. The above decision had been given in the context of the legal framework establishing the prosecutor’s powers to prosecute criminal offences and the right of victims to take over a prosecution if a decision not to prosecute was taken by the public prosecutor. In this connection the first applicant had had the right to take over the prosecution as a subsidiary prosecutor. (b) The Court’s assessment (i) General principles 83. Where an individual raises an arguable claim that he has suffered treatment contrary to Articles 2 and 3 at the hands of the police or other similar agents of the State, those provisions, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "Such investigation should be capable of leading to the identification and punishment of those responsible (see El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012; Boicenco v. Moldova, no. 41088/05, § 120, 11 July 2006; and Makaratzis, cited above, § 73). 84. An investigation into serious allegations of ill-treatment must be prompt and thorough.", "A prompt response by the authorities 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. The authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see El Masri, cited above, § 183; Mikayil Mammadov v. Azerbaijan, no. 4762/05, §§ 104 and 105, 17 December 2009; Makaratzis, cited above, § 74; and Boicenco, cited above, § 123). 85.", "For an investigation to be effective it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see El Masri, cited above, § 184; Mikayil Mammadov, cited above, § 102; and Boicenco, cited above, § 121). 86. Lastly, the victim should be able to participate effectively in the investigation in one form or another (El Masri, cited above, § 185). (ii) Application to the present case 87.", "The Court notes that on 14 July 2009 the first applicant lodged a criminal complaint with the public prosecutor against unidentified police officers. In support of his assertion that his life had been endangered and that he had been ill-treated by the police, he submitted documentary evidence that was in his possession at the time (see paragraph 29 above). Subsequently, he provided the public prosecutor with the identities of the police officers concerned, which he had meanwhile discovered (see paragraph 31 above). That, in the Court’s view, amounted to a credible assertion of alleged violations of the rights stated in Articles 2 and 3 which warranted an investigation by the authorities in conformity with the requirements of those Articles. The parties did not dispute that the first applicant’s allegations ought to have been regarded, at that time, as credible.", "88. In such circumstances, the public prosecutor was under a duty to investigate whether an offence had been committed. However, he did not take any investigative measures, apart from requesting additional information from the Ministry of the Interior. He made no attempt to question the first applicant, the police officers concerned or any other person who could provide relevant information to elucidate the facts of the case. In reply to the prosecutor’s request, the Ministry of the Interior submitted a copy of the criminal complaint that it had filed with the public prosecutor’s office against the first applicant.", "On the basis of that information, the public prosecutor informed the first applicant, over two years and two months after receiving the criminal complaint, that there were no grounds to suggest that police officers had committed any offence subject to State prosecution. This finding was not set out in a formal decision, but in a letter containing no explanation of any legal remedies that were available to the first applicant. 89. On 23 January 2013 the same public prosecutor (A.M.) reached the same conclusion and rejected, now with a formal decision, the first applicant’s complaint, advising him that he could take over the prosecution as a subsidiary prosecutor. That decision was based to a considerable extent on the criminal complaint, the indictment and evidence that had become available during the investigation against the first applicant.", "The Court observes that A.M. represented the prosecution’s office at the trial in the criminal proceedings against the first applicant (see paragraph 37 above). In the Court’s view, the fact that the same prosecutor who filed criminal charges against the first applicant had examined his complaint casted doubt on his impartiality (see Boicenco, cited above, § 124). In support was the firm position as regards the first applicant’s guilt which A.M. expressed in the decision rejecting the applicant’s complaint (see paragraph 34 above) 90. The Court further notes, firstly, that this decision was given over three-and-a-half years after the criminal complaint had been lodged and after the case was communicated to the respondent Government. Secondly, it was given on the basis of evidence that was available after the incident – yet the Government did not present any explanation as to why it took so long for the prosecutor to decide on whether to prosecute the case (see, mutatis mutandis, Sulejmanov v. the former Yugoslav Republic of Macedonia, no.", "69875/01, § 51, 24 April 2008). Thirdly, that decision was given mainly on the basis of evidence provided by the police (see ibid., and El Masri, cited above, §189). Finally, it was not communicated to the first applicant. In any event, the Court recalls that victims of alleged violations are not required to pursue the prosecution of State agents on their own. This is a duty of the public prosecutor, who is better placed in that respect (Stojnšek v. Slovenia, no.", "1926/03, § 79, 23 June 2009, and Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013). 91. Against this background, the Court concludes that there was no effective investigation of the first applicant’s claim that the police had used life-endangering force and ill-treated him. Thus, the Court finds that there has been a violation of Articles 2 and 3 of the Convention in their procedural part.", "4. Alleged violation of Article 13, taken in conjunction with Articles 2 and 3 of the Convention 92. Having regard to the grounds on which it has found a violation of the procedural aspect of Articles 2 and 3, the Court considers that no separate issue arises under Article 13 of the Convention (see Jašar, cited above, § 62; Sulejmanov, cited above, § 55; and Dželadinov and Others v. the former Yugoslav Republic of Macedonia, no. 13252/02, § 77, 10 April 2008). II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 93. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 94. The first applicant claimed 4,000 euros (EUR) in respect of pecuniary damage. This figure was stated to represent the compensation that he would have been awarded had the prosecution authorities decided his case.", "He also claimed EUR 50,000 in respect of non-pecuniary damage for the mental suffering, pain and frustration suffered as a result of the alleged violations. 95. The Government contested the applicant’s claims as unsubstantiated. They further alleged that there had been no causal link between the damage claimed and the alleged violations. 96.", "The Court does not discern any causal link between the violations found and the pecuniary damage claimed by the first applicant; it therefore rejects this claim. Nevertheless, it considers that the first applicant must have sustained non-pecuniary damage as a result of the violations found. Ruling on an equitable basis, it awards him EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 97.", "The first applicant also claimed EUR 2,000 for costs and expenses incurred in respect of legal representation in the proceedings before the domestic authorities (calculated under the fee scale of the Macedonian Bar) and EUR 5,900 for those before the Court. This latter amount concerned legal fees for 200 hours of legal work. He requested that any award under this head be paid directly to his lawyer. 98. The Government contested the above claims as unsubstantiated and excessive.", "Furthermore, they asserted that they had not been supported with any documents or particulars. 99. 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 Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‑IV). In the present case, regard being had to the available material and the above criteria, the Court considers it reasonable to award the first applicant EUR 100 for the domestic proceedings and EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to him.", "These amounts are to be paid into the bank account of the first applicant’s representative. C. Default interest 100. 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 first applicant and inadmissible in respect of the second applicant; 2.", "Holds, by six votes to one, that there has been a violation of Article 2 of the Convention on account of unjustified use of potentially lethal force against the first applicant (substantive aspect); 3. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of degrading treatment of the first applicant during his arrest (substantive aspect); 4. Holds, unanimously, that there has been a violation of Articles 2 and 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the first applicant’s allegations that the police put his life at risk and ill-treated him (procedural limb); 5. Holds, unanimously, that it is not necessary to consider the first applicant’s complaint about the lack of an effective remedy under Article 13 of the Convention; 6. Holds, unanimously, (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into national currency of the respondent State at the rate applicable on the date of settlement: (i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 950 (nine hundred and fifty euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid into the bank account of the first applicant’s representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment. I. B.L.S.N. DISSENTING OPINION OF JUDGE DEDOV I regret that I cannot agree with the majority’s conclusion that there has been a violation of the substantive aspect of Article 2 of the Convention on account of the unjustified use of potential lethal force against the first applicant.", "In general, I follow the main reasoning of the separate opinion of Judge Wildhaber, joined by Judges Kovler and Mularoni, which was annexed to the Makaratzis judgment. Furthermore, the Court’s conclusion is premature as the criminal proceedings against the applicant have not been completed at the national level. But the main question remains unresolved: should the Court encourage irresponsible and dangerous behaviour? My response to this question is no. The use of lethal force was based on paragraph 2 of Article 2, in order to make a lawful arrest, as the applicant had refused to stop the car for a routine inspection.", "Moreover, the applicant was heavily drunk and was driving his car at excessive speed; he had mounted the pavement and endangered the life of a police officer, creating a situation in which the police officers had to fire in order to stop the car after he had already gone through the second roadblock (the authorities used two roadblocks as less extreme methods). Any warning shots would therefore have been ineffective; the applicant stopped the car only when he heard that the rear window had been shattered. Therefore, the use of force was absolutely necessary. It is a common rule that a driving licence must be withdrawn if a certain level of alcohol has been found in the driver’s blood. That rule is not based on the particular circumstances of a particular driver’s behaviour, but on the general presumption that alcohol itself endangers the lives of others.", "In my view, the Court should treat such a risk as seriously as possible." ]

[ "FIFTH SECTION CASE OF TARAN v. UKRAINE (Application no. 31898/06) JUDGMENT STRASBOURG 17 October 2013 FINAL 17/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Taran v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31898/06) 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 Ivan Vasilyevich Taran (“the applicant”), on 27 July 2006. 2. The applicant was represented by Mr V. Suk, a lawyer practising in Sevastopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy. 3.", "The applicant’s complaints concerned, in particular, the conditions of his detention and transportation between detention facilities (Article 3 of the Convention); the lawfulness of his pre-trial detention based on court decisions adopted between August and October 2005, and the lawfulness of his pre-trial detention after 29 November till 29 December 2005 (Article 5 § 1 of the Convention); the length of his pre-trial detention (Article 5 § 3 of the Convention); the lack of appropriate judicial review of his detention (Article 5 § 4 of the Convention); the absence of an enforceable right to compensation (Article 5 § 5 of the Convention); and the length of the criminal proceedings (Article 6 § 1 of the Convention). 4. On 15 May 2012 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 1980 and lives in Sevastopol. A. Criminal proceedings against the applicant and related issues 6. On the evening of 29 June 2005 the applicant was arrested on suspicion of murder. 7.", "On 1 July 2005 the Nakhimivskyy District Court of Sevastopol (“the District Court”) ordered the applicant’s pre-trial detention for two months. The District Court noted that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the fact that the applicant had been charged with a serious crime and had no registered address in Sevastopol. 8. On 11 July 2005 the Sevastopol Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant’s lawyer and upheld the lower court’s decision noting that the applicant had been charged with a serious crime.", "9. On 25 August 2005 the investigator in the case applied to the court seeking an extension of the applicant’s pre-trial detention to three months. 10. On 26 August 2005 the District Court extended the applicant’s pre-trial detention to three months noting that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the gravity of the charges levelled against the applicant and a considerable number of procedural measures that had to be taken in the case.", "The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent. 11. On 7 September 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the decision of 26 August 2005, finding that the District Court had properly extended the applicant’s pre-trial detention. It dismissed the applicant’s contention that the investigator’s request for an extension of the preventive measure had been submitted outside the statutory time-limit as that issue did not affect the lawfulness of the impugned decision.", "The applicant’s allegation that he had to be released for health reasons had not been supported by evidence. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent. 12. On 27 September 2005 the investigator applied to the District Court seeking an extension of the applicant’s pre-trial detention to four months.", "13. On 29 September 2005 the District Court extended the applicant’s pre-trial detention to four months, noting that, if he were freed, the applicant might abscond and impair the establishment of truth and obstruct the course of justice. The court again referred to the gravity of the charges levelled against the applicant and the considerable number of procedural measures that had to be taken in the case. The hearing was attended by the prosecutor; the applicant and his lawyer were absent. 14.", "On 13 October 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the District Court’s decision of 29 September 2005. The Court of Appeal noted, in particular, that a considerable number of procedural measures had still to be taken in the case; the applicant was charged with a serious crime and, if released, might abscond, obstruct the investigation and continue his criminal activities. As to the applicant’s absence from the hearing before the District Court, the Court of Appeal considered that the applicant’s appearance had not been obligatory. The hearing before the Court of Appeal was held in the presence of the prosecutor and the applicant’s lawyer. The applicant was absent.", "15. On 26 October 2005 the investigator applied to the Court of Appeal seeking an extension of the applicant’s pre-trial detention to five months. 16. On 28 October 2005 the Court of Appeal extended the applicant’s pre-trial detention to five months, namely to 29 November 2005. Its decision was based on the gravity of the charges and the necessity to finalise the investigation and familiarise the defence with the case file.", "The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant was absent. The decision was not subject to appeal. 17. On 29 November 2005 the criminal case file was remitted to the District Court for the applicant to be tried.", "18. In December 2005 the applicant lodged a complaint under the Code of Administrative Justice alleging that the prosecutor had failed to release him from custody after 29 November 2005. The applicant contended that his detention after 29 November 2005 had not been based on any court decision and was therefore unlawful. 19. On 23 December 2005 the Leninskiy District Court of Sevastopol considered the applicant’s complaint under the Code of Administrative Justice in the absence of the parties.", "It found that on 29 November 2005 the case had been remitted to the District Court and that the prosecutor had not been empowered to decide on the applicant’s release. The applicant appealed against that judgment. 20. On 29 December 2005 the District Court, conducting a preliminary hearing in the applicant’s criminal case, decided to order an additional investigation. It further ordered that the preventive measure in respect of the applicant be left unchanged.", "21. Following the completion of the additional investigation, on 28 February 2006 the case was again remitted to the District Court for the applicant to be tried. 22. On 30 March 2006 the Court of Appeal dismissed the appeal lodged by the applicant against the judgment of 23 December 2005 in the administrative case, finding that the judgment was lawful and substantiated. The hearing was held in the presence of the applicant’s lawyer.", "The applicant appealed against that decision on points of law. 23. On 31 March 2006 the applicant was committed for trial before the District Court. The court held that the preventive measure in respect of the applicant should remain the same as there had been no grounds for changing it. 24.", "On 17 and 18 October 2006 the applicant and his defence counsel requested the District Court that the applicant be released from custody, claiming that his detention had not been based on a reasoned court decision and there were no grounds for believing that he would flee from justice or obstruct the criminal proceedings. 25. On 18 October 2006 the District Court dismissed the requests as unfounded, noting that the case concerned a serious crime and the applicant, if released, might abscond and obstruct the establishment of truth. 26. On 1 March and 16 April 2007 and 1 August 2008 the District Court considered similar release requests lodged by the applicant and his defence counsel during the hearings.", "The court rejected the requests, noting that the preventive measure had been applied lawfully and there were no grounds for changing it. 27. On 16 May 2007 the Higher Administrative Court, sitting in private, upheld the decisions of 23 December 2005 and 30 March 2006 in the administrative case and dismissed the applicant’s appeal on points of law as unfounded. 28. On 19 November 2010 the District Court found the applicant guilty of murder and sentenced him to seven years’ imprisonment.", "The applicant appealed and made another request for release from custody. 29. On 12 April 2011 the Court of Appeal quashed that judgment and ordered an additional investigation. It also allowed the applicant’s release, noting that after 29 November 2005 he had been detained without a court order; the subsequent extension of his detention had not been properly reasoned and no time-limit had been specified by the court. In granting the applicant’s request the Court of Appeal also had regard to the overall length of the applicant’s detention.", "It released the applicant subject to a written obligation not to abscond. 30. Following the additional investigation, on 18 July 2011 the applicant was committed to trial before the District Court. As of 4 December 2012 the proceedings were pending before the court. B.", "The applicant’s civil claim for damages 31. On 18 July 2011 the applicant lodged a civil claim with the Leninskyy District Court of Sevastopol seeking compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful deprivation of liberty. The applicant contended, among other things, that his claim was supported by the findings of the Court of Appeal in its decision of 12 April 2011. 32. On 5 July 2012 the Leninskyy District Court of Sevastopol found that the applicant’s claim had been groundless.", "Moreover, contrary to the requirements of the Compensation Act, the applicant failed to substantiate any damage he had allegedly sustained. The applicant appealed. 33. On 8 November 2012 the Court of Appeal quashed the decision of 5 July 2012 noting that, instead of the Compensation Act, the first-instance court should have applied the Convention. The Court of Appeal further found that the applicant’s arrest and detention had been lawful and justified by the circumstances of the criminal case.", "Besides, according to section 2 of the Compensation Act, the fact of unlawful detention on remand could not be confirmed by a decision on the remittal of the case for additional investigation. Accordingly, given that the deprivation of liberty was lawful and substantiated, the applicant had no right to compensation for damage and the claim had to be rejected. 34. The applicant appealed on points of law, but on 4 February 2013, his appeal was dismissed as unfounded. C. Conditions of detention and transportation 35.", "Following the court decision of 1 July 2005 the applicant was placed in the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”). In order to participate in the investigative measures and court hearings, he was escorted to the Sevastopol Temporary Detention Centre (“the Sevastopol ITT”) for several days at a time. According to the official reply from the Prison Department of the Autonomous Republic of Crimea, between 2005 and 2009 the applicant was escorted to the Sevastopol ITT on twenty-seven occasions. According to the applicant, during the whole period of his pre-trial detention he was transported to the Sevastopol ITT on forty-five occasions. 36.", "According to the applicant, his trip to Sevastopol took about twelve hours and the trip back to Simferopol took from twenty to twenty-four hours. Although the transportation itself took about two hours, for the rest of the time he had to remain in a special metal cage inside the vehicle measuring 0.5 sq. m. During the trip the applicant was not given food or water and he could not sleep. The cages were dirty, cold in winter and hot in summer, and not properly ventilated. 37.", "In the Sevastopol ITT, the applicant was allegedly held in overcrowded cells: during the first years of his detention he was held in cells containing six bunks, while the overall number of detainees ranged from twenty-five to thirty. In the last two years of his detention the number of detainees decreased to fifteen per cell, which still contained only six bunks. 38. On 18 November 2005 the applicant applied to the Ukrainian Parliamentary Commissioner for Human Rights complaining about the conditions of detention and transportation. II.", "RELEVANT DOMESTIC LAW 39. The relevant provisions of the Constitution and the Code of Criminal Procedure, which was applicable at the relevant time, can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 57-59, 28 October 2010). 40. Under Article 162 of the Code of Administrative Justice (2005), the administrative court, should it find an administrative claim substantiated, may, inter alia, declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions.", "The administrative court may also take other decisions guaranteeing the protection of human and citizens’ rights, and the rights and interests of other subjects of public law relationships, from violations committed by public authorities. 41. Article 1176 of the Civil Code (2003) deals with the compensation for damage sustained as a result of unlawful decisions, actions or inactivity by the body of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. It provides, inter alia, that the procedure for compensation of damage inflicted by such bodies “shall be established by the law”. 42.", "The relevant provisions of the Compensation Act (the law “on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts”) of 1 December 1994 read as follows: Section 1 “Under the provisions of this Act a citizen is entitled to compensation for damage caused by: 1) unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizen’s rights; ...” Section 2 “The right to compensation for damage in the amount and in accordance with the procedure established by this Act shall arise in the event of: 1) acquittal by a court; 2) the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti, or for lack of evidence of the accused’s participation in the commission of the crime; 3) refusal to initiate criminal proceedings or terminate criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this section; 4) termination of proceedings for an administrative offence. ...” 43. According to the amendments to the Compensation Act of 1 December 2005, section 2, providing the list of situations in which the right to compensation arose, was supplemented with the following paragraph: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (except for rulings on the remittal of cases for additional investigation)”. III. RELEVANT INTERNATIONAL AND DOMESTIC MATERIALS 44.", "The relevant international and domestic materials concerning conditions of detention and transportation can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007), and Koktysh v. Ukraine (no. 43707/07, §§ 39-42, 10 December 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 45.", "The applicant complained that the conditions of his detention in the Sevastopol ITT and the conditions of his transportation between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article 3 of the Convention. 46. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions 47. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this part of application.", "In particular, he should have applied to the administrative courts or raised these issues before the prosecutor. As an example of the practical effectiveness of the judicial remedy, the Government referred to the domestic court’s decision of 4 February 2009 in which the claimants were awarded compensation in allegedly similar circumstances. They did not provide a copy of that decision. 48. The Government further maintained that the complaints were not properly developed and substantiated by the applicant and had to be rejected as manifestly ill-founded.", "They submitted that the documentation concerning the applicant’s detention in the Sevastopol ITT and his transportation between the Sevastopol ITT and the Simferopol SIZO had been destroyed, since the time-limit for keeping it had expired. They provided a general description of the Sevastopol ITT and stated that its detainees were held in adequate conditions. The Government also provided a general description of the vehicles and train carriages used to transport detainees, and contended that the transportation of the applicant had not disclosed any issue under the Convention. 49. The applicant, relying on the Court’s case-law, alleged that the remedies referred to by the Government were ineffective.", "He insisted that his complaints under Article 3 of the Convention were well-founded and could not be rejected as inadmissible. 2. The Court’s assessment 50. The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko, cited above, §§ 75-76; Koktysh, cited above, § 86; Logvinenko v. Ukraine, no.", "13448/07, § 57, 14 October 2010; Iglin v. Ukraine, no. 39908/05, § 43, 12 January 2012; and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30 and 31, 16 February 2012). As to the Government’s additional contention that the domestic court’s decision of 4 February 2009 proved the efficiency of the judicial remedy, the Court notes that a copy of that decision was not provided. Moreover, it appears that the Government refer to a decision which was examined by the Court in the same context and found to be of no relevance for the issue of exhaustion of domestic remedies (see Petukhov v. Ukraine, no.", "43374/02, § 74-78, 21 October 2010, and Ustyantsev v. Ukraine, no. 3299/05, §§ 56-58, 12 January 2012). In summary, there are no grounds for assuming that in the present case the use of the remedies mentioned by the Government could effectively have addressed the applicant’s issues. The Court therefore sees no reason to depart from its previous approach and dismisses the Government’s objection. 51.", "The Court further considers that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 52. The applicant contended that the conditions of his detention and transportation were inappropriate and contrary to Article 3 of the Convention. 53. The Government did not comment on the merits of these complaints considering them inadmissible. 2.", "The Court’s assessment 54. The Court notes that the applicant’s complaints concerning the conditions of detention and transportation are detailed and consistent. These complaints, including the specific allegations of degrading manner of the applicant’s transportation in a metal cage, raise serious concerns. The Court considers that the applicant’s submissions, which have not been refuted by the Government, are sufficiently supported by the international and domestic reports examined by the Court in the cases of Yakovenko and Koktysh (cited above) and by the Court’s findings in those cases concerning the conditions of detention in the Sevastopol ITT and the manner of transportation between the Sevastopol ITT and the Simferopol SIZO. At the same time, there is no material leading the Court to conclude that in the present case the applicant’s conditions of detention and transportation were compatible with the requirements of Article 3 of the Convention.", "55. There has therefore been a violation of that Convention provision. II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 56. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention after 29 November 2005 till 29 December 2005 had not been lawful as it had not been based on a court decision.", "He also complained that between August and October 2005 his pre-trial detention had not been lawfully extended by the courts. The applicant further alleged that the other court decisions taken in respect of the preventive measure had been unreasoned and the overall length of his detention had been excessive. 57. The relevant provisions of Article 5 read as follows: 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; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 1. The parties’ submissions 58. The Government submitted that the applicant had not complied with the rule of exhaustion of domestic remedies.", "They noted that the Court of Appeal, in its decision of 12 April 2011, had acknowledged in substance that the applicant’s rights had been violated under Article 5 §§ 1 and 3 of the Convention. Relying on Article 1176 of the Civil Code and the Compensation Act, the Government maintained that after the Court of Appeal’s decision it had been open for the applicant to seek damages, but he had failed to exhaust that remedy. 59. The Government further argued that the applicant’s complaint concerning the unlawful prolongation of his pre-trial detention between August and October 2005 fell outside the six-month period, which had started to run from the date when the applicant had become aware of the relevant decisions of the Court of Appeal. 60.", "The applicant disagreed with the Government’s objections. 2. The Court’s assessment 61. As regards the Government’s contention that the applicant failed to exhaust domestic remedies as he did not lodge a civil claim, the Court notes that in fact the applicant lodged a claim for damages which was considered and rejected by the domestic courts (see paragraphs 31 - 34 above). Accordingly, the Government’s objection should be dismissed.", "62. As to the alleged non-compliance with the six-month rule, the Court observes that the applicant’s uninterrupted detention during the specific period to which he referred, as well as during the subsequent periods until his conviction on 19 November 2010, was of the same legal nature and constituted, for the purposes of the Convention, a continuing situation. As the application was introduced on 27 June 2006, the complaint cannot be dismissed as lodged out of time (see Nikolay Kucherenko v. Ukraine, no. 16447/04, § 29, 19 February 2009 and Gavazhuk v. Ukraine, no. 17650/02, §§ 54-55, 18 February 2010).", "The Court therefore dismisses the Government’s objection in this respect. 63. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 64. The applicant insisted that his rights under Article 5 had been infringed. 65.", "The Government contended that the applicant’s complaints did not give rise to a violation of Article 5 of the Convention. In particular, the decisions between August and October 2005 constituted appropriate legal basis for the applicant’s pre-trial detention at the relevant time. 2. The Court’s assessments 66. The Court considers that the applicant’s submissions concern the following issues, which have to be examined in turn: (a) whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with the requirements of lawfulness under Article 5 § 1 (c) of the Convention; and (b) whether the court decisions in respect of the preventive measure were compatible with the requirements of Article 5 §§ 1 and 3 of the Convention.", "(a) Whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with Article 5 § 1 (c) of the Convention 67. The Court notes that during the period under examination the applicant was held in detention on account of an indictment having been submitted to the court, even though there was no court decision validating his detention. The Court has already found that such practice is not compatible with Article 5 § 1 (c) of the Convention (see, for example, Nikolay Kucherenko, cited above, §§ 35-38, Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011 and Tsygoniy v. Ukraine, no. 19213/04, § 60, 24 November 2011).", "The Court sees no reason to depart from its previous findings in the present case and holds that there has been a violation of Article 5 § 1 (c) of the Convention. (b) Whether the court decisions in respect of the preventive measure were compatible with Article 5 §§ 1 and 3 of the Convention 68. Article 5 § 1 of the Convention requires that for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007). For the Court, detention pursuant to Article 5 § 1 (c) must embody a proportionality requirement, which implies a reasoned decision balancing relevant arguments for and against release (see Ladent v. Poland, no.", "11036/03, § 55, ECHR 2008-... (extracts), and Khayredinov v. Ukraine, no. 38717/04, § 86, 14 October 2010). 69. The Court has also held that Article 5 § 3 of the Convention requires that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The arguments for and against release, including the risk that the accused might hinder the proper conduct of the proceedings, must not be taken in abstracto, but must be supported by factual evidence.", "The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Becciev v. Moldova, no. 9190/03, §§ 56 and 59, 4 October 2005, with further references). 70. Having regard to the close affinity between the relevant principles developed under Article 5 §§ 1 (c) and 3 of the Convention, the Court shall consider the present complaint under both provisions simultaneously (for a similar approach see Korneykova v. Ukraine, no.", "39884/05, § 38, 19 January 2012, and Sizarev v. Ukraine, no. 17116/04, §§161-164, 17 January 2013). 71. The Court notes that the applicant’s pre-trial detention lasted for more than five years and nine months. The decisions on the applicant’s detention, some of which were adopted by the courts without hearing the applicant in person, were couched in general terms.", "They do not suggest that the courts made an appropriate assessment of the facts relevant to the question whether such a preventive measure was necessary in the circumstances. Moreover, with the passage of time the applicant’s continued detention required more justification, but the courts did not provide any further reasoning in that respect. 72. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 §§ 1 (c) and 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 73. The applicant complained that he had been denied the right to have the lawfulness of his detention after 29 November 2005 reviewed by a court. He alleged that the administrative proceedings in which he raised that issue had been incompatible with the requirements of Article 5 § 4, Article 6 § 1 and Article 13 of the Convention. 74. The Court considers that the crux of the applicant’s complaint concerns the question whether the applicant was provided with an effective procedure by which he could challenge his ongoing detention at the relevant time.", "The Court will therefore examine the matter solely under Article 5 § 4 of the Convention, which provides 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 75. The Government submitted that in so much as the complaint related to the administrative proceedings, Article 5 § 4 of the Convention was not applicable. They maintained that the administrative courts had no jurisdiction over issues of detention in the course of criminal proceedings and, in any event, they had no powers to order the applicant’s release.", "76. The applicant maintained that his complaint was admissible. 2 The Court’s assessment 77. The Government’s objection suggests that the administrative proceedings, instituted by the applicant, were not appropriate for the review of the lawfulness of his detention as required by Article 5 § 4 of the Convention. However, this Government’s argument does not preclude the Court from considering the merits of the applicant’s complaint in the context of a wider problem, namely whether the applicant had any effective procedure for the purpose of Article 5 § 4.", "The Court therefore dismisses the Government’s objection. 78. The Court further notes that the complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 79. The Government submitted that the applicant had been provided with an effective procedure by which he could have challenged his detention at the relevant time. In particular, in accordance with the Code of Criminal Procedure, the applicant had been entitled to submit various requests to the body dealing with his criminal case, including requests to change or lift the preventive measure. 80. The applicant disagreed.", "81. The Court reiterates 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 pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych, cited above, § 108; Pleshkov v. Ukraine, no. 37789/05, § 42, 10 February 2011; Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011; and Tsygoniy, cited above, § 78). The applicant’s unsuccessful attempt to have the issue reviewed by the administrative courts and the Government’s contention that those proceedings could not effectively deal with the issue at stake can only support that general finding.", "82. The Court therefore holds that there has been a violation of Article 5 § 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 83. The applicant complained that he had been unable to claim compensation in respect of his unlawful pre-trial 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 84. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 85. The Government submitted that there had been no violation of Article 5 § 5 of the Convention. They maintained that the applicant could claim damages under Article 1176 of the Civil Code and the Compensation Act, relying on the Court of Appeal’s decision of 12 April 2011 in which a violation of the applicant’s rights under Article 5 §§ 1 and 3 of the Convention had been recognised in substance. 86.", "The applicant disagreed and insisted that the compensatory remedy had not been available to him. 87. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of 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 preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see, for example, Włoch v. Poland (no. 2), no.", "33475/08, § 25, 10 May 2011). 88. With respect to the Government’s submission that the applicant could claim damages under Article 1176 of the Civil Code and the Compensation Act, the Court notes that the domestic courts, dealing with the applicant’s claim for damages, did not in fact consider that the Court of Appeal’s decision of 12 April 2011 generated a right to compensation in that regard. Moreover, they expressly stated that the applicant had no such a right after finding that the depravation of liberty had been lawful and substantiated. 89.", "The Court further notes that the Government have not shown that the applicant’s right to compensation under Article 5 § 5 of the Convention was ensured in the domestic legal system should the Strasbourg Court find a violation of any preceding paragraphs of that Article (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, §§ 229-234, 21 April 2011 and Klishyn v. Ukraine, no. 30671/04, § 98, 23 February 2012). 90. There has therefore been a violation of Article 5 § 5 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 91. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy. 92. The relevant part of Article 6 § 1 of the Convention reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 93. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 94. The applicant maintained that the proceedings had been unreasonably lengthy.", "The Government contested that argument, stating that the case was complex and that there had been no major delays attributable to the State. 95. 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). 96.", "Turning to the present case, the Court notes that on 29 June 2005 the applicant was arrested on suspicion of murder. As of 4 December 2012 – that is, more than seven years and five months later – the proceedings were pending before the first-instance court. 97. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it that such lengthy criminal proceedings were justified in the circumstances of the 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.", "98. There has therefore been a violation of Article 6 § 1 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 100. The applicant claimed 19,600.80 euros (EUR) in respect of pecuniary damage and EUR 130,000 in respect of non-pecuniary damage. 101. The Government submitted that the claim for pecuniary damage was not supported by any evidence and the claim for non-pecuniary damage was excessive and unfounded. 102.", "The Court notes that the applicant failed to substantiate the pecuniary damage alleged. It therefore makes no award in this connection. As to the claim for non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 14,000 in respect of non-pecuniary damage. B.", "Costs and expenses 103. The applicant also claimed EUR 5,979.8 for the costs and expenses incurred before the domestic authorities and the Court. 104. The Government considered that the claim was not supported by sufficient evidence and was, in any event, excessive. 105.", "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 900, covering costs under all heads. C. Default interest 106. 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 remainder of the application admissible; 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 as regards the period of the applicant’s detention after 29 November 2005 till 29 December 2005; 4. Holds that there has been a violation of Article 5 §§ 1 (c) and 3 of the Convention; 5. Holds that there has been a violation of Article 5 § 4 of the Convention; 6.", "Holds that there has been a violation of Article 5 § 5 of the Convention; 7. Holds that there has been a violation of Article 6 § 1 of the Convention; 8. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 14,000 (fourteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 900 (nine 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; 9. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekMark VilligerRegistrarPresident" ]

[ "FIRST SECTION CASE OF MERGER AND CROS v. FRANCE (Application no. 68864/01) JUDGMENT STRASBOURG 22 December 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 Merger and Cros v. France, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrJ.-P. Costa,MrsF.", "Tulkens,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 11 March and 2 December 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 68864/01) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Ms Hermance Merger and Ms Clémentine Cros (“the applicants”), on 3 November 2000. 2. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. 3.", "The applicants alleged a violation of Article 8 of the Convention, taken together with Article 14, and of Article 1 of Protocol No. 1 to the Convention, taken together with Article 14 of the Convention. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). 6. By a decision of 11 March 2004 the Court declared the application admissible.", "7. The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1968 and 1936 respectively and live in Paris.", "9. The first applicant was born on 6 December 1968 of a relationship which began in 1964 between the second applicant, a widow and the mother of a daughter born in 1957, and Mr R. Merger, a married man and the father of four children born in 1942, 1944, 1945 and 1947. At the time her birth, her father and mother had been living together since 1965. Her father formally acknowledged paternity on 7 December 1973 and she has borne his name since 17 May 1985. 10.", "On 11 May 1980 the first applicant's father drew up a private deed dividing his movable property between his five children. The document was signed by the four legitimate children and by the father on the first applicant's behalf. 11. On 11 October 1984 he made a manuscript will in which he left to the first applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, came to one quarter. He stipulated that it was to be taken free of his wife's life interest.", "12. In a second manuscript will dated 16 June 1985 he stated that he wished the estate to be divided into five parts to be allocated by the drawing of lots in the presence of all his children, for the disposable portion of the estate to pass to the first applicant after an account had been taken of any gifts that had been made and for his wife's life interest to attach only to the share of the four legitimate children. The first applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted. 13. The first applicant's father died on 12 March 1986 leaving as his heirs his wife, four legitimate children and the first applicant, an illegitimate child conceived while he was bound by marriage to a person other than its mother.", "14. A notary was instructed to wind up the estate. He took an inventory at the home on 20 June 1986. The first applicant (who was sitting her baccalaureate that day) was represented by the second applicant, who pointed out that certain movables were missing. The widow laid claim to certain items which she said belonged to her.", "The total value of the movables listed in the inventory was estimated at 114,175 French francs (FRF). 15. Since an amicable division of the estate proved impossible, the deceased's four legitimate children and their mother brought proceedings against the applicants in the Paris tribunal de grande instance seeking, inter alia, orders setting aside the gift of the disposable portion to the first applicant and the gifts their father had made to the second applicant – which were deemed to have been made to the first applicant – and restricting the first applicant's rights to 10 % of the net estate. 16. The applicants asked the Court, inter alia, to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on 11 May 1980.", "17. In a judgment of 6 November 1992, the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in Paris and a sum of FRF 500,000 were gifts that had been made to the first applicant through an intermediary and set them aside under Articles 908 and 911 of the Civil Code. It added that the value of the property that had been acquired with those gifts had to be brought into account. Relying on those provisions, the tribunal de grande instance ruled that the first applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. Relying principally on Article 931 of the Civil Code, it held that the deed of division dated 11 May 1980 was null and void as it was not in the correct form and added, in the alternative, that the first applicant could only lay claim to 10% of the movables that were divisible in kind.", "Lastly, it declared that the first applicant was to receive her share of the estate free of any life interest. 18. The applicants appealed against that judgment. The first applicant completed her studies in December 1993. 19.", "In a judgment of 24 September 1996, the Paris Court of Appeal transferred the case to the Dijon Court of Appeal, as one of the parties was a judge of the Paris tribunal de grande instance and the other had been admitted to the Paris Bar while the proceedings were under way. 20. In a judgment of 27 November 1997, the Dijon Court of Appeal upheld the judgment of the court below in so far as it had refused to grant the first applicant identical inheritance rights to those of the four legitimate children or to allow her to take the disposable portion and had ruled that the assets of the second applicant – who it noted had lived with the deceased since 1965 – were gifts acquired through an intermediary. Noting that the first applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother, it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate. 21.", "The applicants appealed to the Court of Cassation. 22. On 4 February 1999 the notary liquidated the estate and drew up the deed of division. The first applicant signed the deed “without prejudice to the appeal to the Court of Cassation which has been served on the parties”. Under the terms of the deed of division, she was required to pay an equalising balance to the other heirs in the French franc equivalent of 236,187 euros (EUR).", "23. The second applicant sold her home to pay that balance on behalf of her daughter, who had no property of her own. 24. In a judgment of 3 May 2000, the Court of Cassation dismissed the applicants' appeal. 25.", "Following that judgment, the equalising balance was duly paid to the other heirs. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Relevant domestic law at the material time 26. The relevant provisions of the Civil Code as worded at the material time were as follows: “Part I: Succession ... Chapter III: Orders of succession ...", "Section III: Rights of descendants to inherit Article 745 “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ascendants, without distinction on grounds of sex or primogeniture, and even if born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants. ... Section VI: Rights of illegitimate children to inherit Article 757 Illegitimate children shall, in general, have the same rights to inherit from their father and mother or other ascendants and from their brothers and sisters and other collateral relatives as legitimate children. Article 759 Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage to another person shall not prevent such other person from inheriting from the father or mother if he or she would have been entitled to inherit under Articles 765 and 766 below but for their birth.", "In such eventuality, irrespective of their number, the illegitimate children shall receive only half of that which would have devolved to the spouse under the aforementioned Articles but for their birth, the calculation being made line by line... Article 760 Illegitimate children whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born shall be entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The fraction by which their share of the estate is thus reduced shall revert solely to the children born of the marriage damaged by the adultery. It shall be divided between them in proportion to their share in the estate. Titre II: Inter vivos and testamentary gifts ... Chapter II: Capacity to use or receive inter vivos and testamentary gifts Article 908 Illegitimate children shall not be entitled to receive by way of inter vivos or testamentary gift from their father or mother a share of the estate in excess of that to which they are entitled under the aforementioned Articles 759 and 760 if the donor or testator was, at the time of their conception, bound by marriage to another person.", "An action for abatement may, however, only be brought by the spouse or children of the marriage, as the case may be, and only once the estate has passed to the heirs. Article 911 Any disposition to a person without capacity shall be null and void, whether disguised as a contract for consideration or made in the name of intermediaries. The father, mother, children, descendants, and spouse of a person without capacity shall be deemed to be intermediaries. ... Chapter III: The portion of disposable assets and abatement ... Section I: The portion of disposable assets Article 913 Gifts, whether inter vivos or testamentary, may not exceed one half of the donor's assets if on his death he leaves only one legitimate child, one-third if he leaves two or one quarter if he leaves three or more.", "Article 915-2 An illegitimate child whose share in the estate has abated pursuant to Articles 759 and 760 may, if in need, claim maintenance from the estate in exchange for abandoning his or her rights in favour of the heirs. Such maintenance shall be governed by Article 207-1 of this Code. The heirs may, however, settle such a claim by granting the applicant a share equal to that which he or she would have received under Article 759 and 760. ... Chapter IV: Inter vivos gifts ... Section I : Formal requirements for inter vivos gifts Article 931 Any deed providing for an inter vivos gift shall be made before a notary in the ordinary form applicable to contracts; an original shall be kept by the notary, on pain of nullity.” 2.The law of 3 December 2001, which modernises the law of succession, but was not applicable to the estate in question 27.", "On 4 December 2001 Law no. 2001-1135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children one of whose parents was, at the time of their conception, bound by marriage to another person. It repealed the provisions of the Civil Code (in particular, Articles 759, 760, 908 and 915-2) that gave children whose father or mother was married to another person at the time of their conception less favourable inheritance rights. It also repealed the provisions that protected the spouse alone if he or she was competing solely with such children.", "3. Relevant domestic practice 28. The Montpellier tribunal de grande instance held as follows in a judgment of 2 May 2003: “Since it creates a difference between children's inheritance rights depending on their birth, the application of Article 760 of the Civil Code violates the provisions of the Convention ..., as the European Court recently held (in its judgment of 1 February 2000 in the case which Mr Mazurek brought against the French State). ... Thus, Article 760 of the Civil Code must be disregarded, as it contains provisions that discriminate against children of an adulterous relationship with no properly justified basis and it is inconsistent with the European Convention on Human Rights, which, by virtue of Article 55 of the Constitution, ranks ahead of the provisions of domestic law and, in accordance with settled case-law, is directly applicable by the French courts.” THE LAW I.ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1, TAKEN TOGETHER WITH ARTICLE 14 OF THE CONVENTION 29. The applicants complained of an infringement of the first applicant's inheritance rights and of their capacity to receive inter vivos or testamentary gifts from the first applicant's father. Relying on Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, they submitted that they had been discriminated against because the first applicant had been born of an “adulterous” relationship. Those provisions read as follows: Article 1 of Protocol No.", "1 “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 1. The first applicant's inheritance rights 30. The first applicant complained that her rights to inherit property from her father were more limited than those of her half-brothers and half-sisters owing to her status as an illegitimate child conceived at a time when her father was bound by marriage to another person. 31.", "The Government left that issue to the Court's discretion. 32. The Court reiterates, firstly, that Article 1 of Protocol No. 1 guarantees, in substance, the right to property (see Mazurek v. France, no. 34406/97, § 40, ECHR 2000-II; and Inze v. Austria, judgment of 28 October 1987, Series A no.", "126, p. 17, § 38). The Court notes that, since at the relevant time the first applicant's father was dead, the first applicant had automatically acquired rights to a share of the estate under Articles 745, 757 and 760 of the Civil Code. The estate therefore belonged to the first applicant and her half-brothers and half-sisters jointly. Accordingly, the case comes within Article 1 of Protocol No. 1, and Article 14 of the Convention may apply in conjunction with that provision.", "33. The Court points out that it has previously considered – in the aforementioned case of Mazurek v. France – the issue of the division of an estate under the same statutory provisions as the division complained of in the present case between a legitimate child and an illegitimate child conceived when one of its parents was bound by marriage to another person. In that case, it found that no grounds existed on which to justify discrimination based on birth out of wedlock. Pointing out that, in any event, a child could not be held responsible for a state of affairs that was not attributable to it, it found a violation of those two Articles taken together (Mazurek v. France, cited above, §§ 54 and 55). In the instant case, the first applicant was likewise penalised in the division of the estate on account of her position as an illegitimate child conceived when her father was bound by marriage to another person.", "The Court sees no grounds for departing from its aforementioned decision. 34. There has therefore been a violation of Article 1 of Protocol No. 1, taken together with Article 14 of the Convention. 2.", "The applicants' capacity to receive gifts 35. The applicants complained of the illegitimate child's incapacity to receive a gift from its parent if, at the time of its conception, the parent was bound by marriage to another person. They further complained that gifts by the father to the mother of such a child were null and void. 36. The Government left this issue to the Court's discretion.", "37. The Court notes that the gifts to the second applicants and the testamentary gifts to the first applicant were set aside retrospectively (see paragraph 17 above). In that connection, it notes that under its case-law the provision relied on, namely Article 1 of Protocol No. 1, enshrines the right of everyone to the peaceful enjoyment of “his” possessions; however, it applies only to a person's existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions (see, mutatis mutandis, Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 23, § 50).", "Article 1 of Protocol No. 1 is, therefore, not applicable in the present case. 38. The Court further notes that, in accordance with its settled case-law, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions.", "Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36; and Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV). In the present case, the complaint under Article 1 of Protocol No. 1 does not come within the scope of the Convention or its Protocols. 39.", "It follows that there has been no breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. II.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 14 40. The applicants also relied on Article 8 of the Convention, taken together with Article 14, in respect of the same complaints. 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 as 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 well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The first applicant's inheritance rights 41. Having regard to the conclusion set out in paragraph 34 and to the fact that the arguments advanced by the parties are the same as those it examined under Article 1 of Protocol No.", "1 read in conjunction with Article 14 of the Convention, the Court does not consider it necessary to examine this complaint. 2. The applicants' capacity to receive gifts 42. The applicants complained of the illegitimate child's incapacity to receive a gift from its parent if, at the time of its conception, the parent was bound by marriage to another person. They further complained that gifts by the father to the mother of such a child were null and void.", "43. The Government left this issue to the Court's discretion. 44. The Court reiterated that by guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family (Marckx v. Belgium, judgment cited above, § 31; and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, § 62).", "The question whether or not a “family life” exists is essentially one of fact depending upon the real existence in practice of close personal ties (K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII). The notion of “family” is not confined solely to marriage-based relationships but may encompass other de facto “family” ties where the parties are living together outside marriage (Johnston and Others v. Ireland, judgment cited above, § 55; and Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 44). 45.", "Accordingly, when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have had children together (X. and Y. v. the United Kingdom, judgment of 22 April 1997, Reports 1997-II, § 36). In the instant case, the Court notes that the first applicant was born in 1968, her parents having lived together since 1965 (see paragraph 9 above). She and her parents clearly formed a “family” within the meaning of Article 8 of the Convention at that time. 46. The Court reiterated that questions of inheritance and voluntary dispositions between near relatives appear to be intimately connected with family life.", "Family life does not include only social, moral or cultural relations, for example in the sphere of children's education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate (réserve héréditaire). Whilst inheritance rights are not normally exercised until the estate-owner's death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance (avance d'hoirie); it therefore represents a feature of family life that cannot be disregarded (see Marckx v. Belgium, judgment cited above, § 52). Article 8 of the Convention therefore comes into play in the present case. 47. Nevertheless, it is not a requirement of Article 8 that a general right to receive voluntary dispositions from one's parents or of other members of the family or a share in their estate should be recognised: in the matter of patrimonial rights also, Article 8 in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life and such an entitlement is not indispensable in the pursuit of a normal family life.", "In consequence, the restrictions which the French Civil Code places on the first applicant's capacity to receive gifts from her father are not of themselves in conflict with the Convention, that is, if they are considered independently of the reason underlying them (see Marckx v. Belgium, judgment cited above, § 53). 48. On the other hand, the distinction made in this connection between “illegitimate children conceived when [one of] their parents was bound by marriage to another person” and “legitimate” children does raise an issue under Article 14 of the Convention, taken together with Article 8. The Court reiterates on this point 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 (Mazurek v. France cited above, § 46). 49.", "In the instant case, owing to her position as an illegitimate child conceived when her father was bound by marriage to another person, the first applicant was statutorily disqualified from receiving an inter vivos or testamentary gift from her father of more than half of the reserved portion of the estate she would have received had she been legitimate. Likewise, on account of that incapacity, a statutory presumption arose that her father's gifts to her mother had been made through an intermediary. Consequently, on the death of the donor, all the gifts were artificially deemed to form part of the estate and, after calculations had been performed, the first applicant was required to pay each of the other heirs – the legitimate children – an equalising balance, with the result that all she in fact received was half her share. As with the inheritance rights, the Court does not find any ground in the instant case on which to justify such discrimination based on birth out of wedlock. 50.", "Consequently, there has been a violation of Article 8 of the Convention, taken together with Article 14, in respect of both applicants. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage sustained by the first applicant 52. The first applicant simply requested the application of the law of succession and the provisions of her father's will without discrimination on the grounds that she was an illegitimate child conceived when her father was bound by marriage to someone other than her mother. Consequently, she claimed the current value of the gift of the disposable portion, that is to say one quarter of the estate, together with her reserved share amounting to a fifth of the remaining three-quarters, that is to say a fifth of the balance of the divisible assets (1,940,354 euros (“EUR”)), the reversionary pension stipulated in the will (EUR 78,929) and her entitlement as an heir to her father's copyright royalties (EUR 3,500). She affirmed that by bequeathing the disposable portion of the estate to her, her father had sought to restore a balance to compensate for the numerous gifts he had made to his first four children born more than twenty years before her and which had had enabled them to set up home. She disagreed with the Government's analysis of the deed of division dated 4 February 1999.", "53. The Government considered that the first applicant's father's intention in leaving her the disposable portion of the estate had been to compensate her for the difference at the time between the legitimate and the illegitimate child's entitlement to a reserved share. The various provisions he had made clearly reflected his wish to ensure a fair overall division of the estate between his five children. Consequently, in order to restore total equality between the five children, it was necessary to alter the basis on which the sums allocated to each had been calculated by including the disposable portion. If the reserved share had to be divided into five portions, the same rule had also to apply to the disposable portion, which had been left to the first applicant solely in order to compensate her for the provisions concerning the reserved share that were unfavourable to her.", "The Government added that the sum the first applicant had already received had to be deducted from the amounts so calculated. The Government consequently assessed the first applicant's pecuniary damage at approximately EUR 134,000, adding that it should bear interest only from the date of the Court of Cassation's judgment. They also rejected any claim for a reversionary pension, arguing that the first applicant had not shown that she was entitled to the amount claimed under this head. 54. The Court accepts that the first applicant sustained pecuniary damage in an amount equal to the difference between the sum she actually received and the share in her father's estate she would have received had she been his “legitimate” daughter (see Vermeire v. Belgium, judgment of 29 November 1991, Series A no.", "214‑C, p. 84, § 31; and Camp and Bourimi v. the Netherlands, no. 28369/95, § 49, ECHR 2000‑X). 55. As to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 4 February 1999 (see paragraph 22 above). Consequently, it was the value which the estate had at that time which the first applicant would have obtained (see Camp and Bourimi v. the Netherlands cited above, § 49).", "56. In the present case, the discriminatory provisions affected the payment of a reversionary pension to the first applicant, the calculation of the division of the net assets of the estate and the payment of copyright royalties received by the estate. 57. The decisions of the domestic courts show (see paragraph 20 above) that the payment of a reversionary pension to finance the first applicant's studies was refused on the basis of the discriminatory provisions then in force. The Court accordingly finds that had the first applicant been a legitimate child she would have been able to receive such a pension from the date of her father's death until the end of her studies, that is to say for a period of six years and nine months.", "Ruling on an equitable basis, the Court finds that the amount of the pension would have been EUR 700 a month. The first applicant would thus have received a total of EUR 56,700. 58. As to the calculation of the first applicant's share of the estate, the Court notes that the gifts to the second applicant were brought into account by virtue of the discriminatory provisions then in force. Thus, had the first applicant been a legitimate child, the gifts to the second applicant (EUR 400,992) would not have been included in the estate whose net value would therefore have been EUR 1,247,061.", "The value of the reversionary pension must also be deducted from the net value of the estate prior to its division between all the heirs. The amount to be divided therefore comes to EUR 1,190,361 (EUR 1,247,061 less EUR 56,700). The division of the estate under the discriminatory provisions deprived the applicant of one half of her statutory reserved share and of the entire gift of the disposable portion of the estate she had been left in one of her father's wills. Had she been legitimate, she would have received two fifths (EUR 476,144) of the net estate instead of 10%, as she would have received the disposable portion (25% of the estate) plus one fifth of the remaining 75% (15% of the estate), making a total of 40% (or two fifths) of the net estate. 59.", "As regards her entitlement to her father's copyright royalties, the Court notes that the royalties received up till 1999 were included in the net assets of the estate. Further, the Court finds that the first applicant can no longer have standing as a victim with regard to any copyright royalties paid to the estate after the date of delivery of this judgment. Consequently, it awards her the sum of EUR 300 in respect of her claim to royalties, being one fifth of the royalties accrued between 1999 and the date of this judgment. 60. Lastly, the Court notes that the financial exchanges resulting from the division of the estate did in fact take place following the delivery of the Court of Cassation's judgment of 3 May 2000.", "It consequently considers it necessary to revise the amounts payable to the first applicant in respect of the reversionary pension (EUR 56,700) and the division of the net estate (EUR 476,144) by adding interest calculated at the statutory rate for the years 2001 to 2004. The total revised amount comes to EUR 611,845. 61. In conclusion, the Court finds that the first applicant should have received this latter amount plus the amount paid in respect of her entitlement to copyright royalties (EUR 300), that is to say EUR 612,145. It therefore awards the first applicant the sum of EUR 612,145 for pecuniary damage.", "2. Pecuniary damage sustained by the second applicant 62. The second applicant sought reparation for the loss linked to the payment of the equalising balance on behalf of her daughter, namely EUR 281,797. 63. The Government submitted that only the second applicant's non-pecuniary damage could be taken into account in the calculation of just satisfaction.", "However, were the Court to find that the second applicant had sustained pecuniary damage, they submitted that all that could be taken into account was the difference between the value of the asset the second applicant had sold to pay the equalising balance at the time of the sale and its current value. 64. The Court notes that the first applicant was ordered to pay an equalising balance to the estate of EUR 236,187 (see paragraph 22 above). However, since her daughter had no property of her own, the second applicant decided to pay that balance on her behalf. The Court accepts, therefore, that the second applicant suffered direct pecuniary damage by paying the balance due by her daughter to the estate.", "It notes that although the division of the estate only became final in 2001, the equalising balance was deposited in 1999. It consequently considers it appropriate to revise that sum by adding interest calculated at the statutory rate for the years 2000 to 2004, making a total of EUR 278,634. 65. The Court consequently awards the second applicant the sum of EUR 278,634 for pecuniary damage. 3.", "Non-pecuniary damage sustained by the applicants 66. The applicants claimed compensation for non-pecuniary damage in the sum of EUR 80,000 each. 67. The Government proposed a sum of EUR 3,000, that being the amount of the award in the Mazurek judgment. 68.", "The Court finds that the discrimination suffered by the first applicant caused both applicants actual non-pecuniary damage that warranted an award of compensation. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards each applicant EUR 3,000 under this head. B. Costs and expenses 1. The first applicant's costs and expenses 69.", "The first applicant sought reimbursement of various procedural costs incurred since her father's death. She assessed the costs she had incurred in the domestic proceedings at EUR 35,300 and in the proceedings before the Court at EUR 23,000. She produced vouchers in support of part of her claims. 70. The Government submitted that they should not have to bear the first applicant's costs in the proceedings before the Court as she had chosen to represent herself.", "71. The Court considers that the costs incurred, both in the domestic proceedings and the proceedings before the Convention institutions, were intended to remedy the alleged violation of the Convention. 72. The first applicant has produced evidence only in respect of EUR 20,760 of the costs she claims to have incurred in the domestic proceedings. She has provided details and evidence of costs amounting to EUR 12,180 for the proceedings before the Court.", "The Court finds that her claims for personal expenses in the proceedings before it are excessive and awards her EUR 1,500 under that head. 73. Consequently, in the light of the evidence that has been produced, the Court awards the first applicant EUR 34,440 for costs and expenses. 2. The second applicant's costs and expenses 74.", "The second applicant sought the reimbursement of the costs she had been compelled to incur to defend herself and her daughter, who at that time had no resources. She adduced evidence in support of her claims, which she put at EUR 2,356. She also sought the reimbursement of the costs of their first lawyer, who had represented them for five years, and which she said came to EUR 15,245. She explained with supporting evidence that she was unable to provide any vouchers for that sum, as the invoices had been appended to the written submissions to the Dijon Court of Appeal, which had disappeared, and she had not been provided with a duplicate copy as her lawyer had died in 2002 and his firm no longer existed. 75.", "The Government said that, owing to the lack of vouchers, they had no liability for the second applicant's costs. 76. As with the first applicant, the Court considers that the costs incurred by the second applicant in the domestic courts were intended to remedy the alleged violation of the Convention. 77. It notes that the second applicant has provided a breakdown and evidence in support of her claims up to a value of EUR 2,356.", "As regards reimbursement of the fees of their first lawyer, the Court considers that the second applicant has provided sufficient evidence to explain why she was unable to produce the invoices that had been lost with the written submissions to the Dijon Court of Appeal and that it is reasonable that she should be reimbursed the sums paid on that account. 78. Consequently, in the light of the evidence adduced to it, the Court awards the second applicant EUR 17,600 for costs and expenses. 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. Holds that there has been a violation of Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, in respect of the first applicant's inheritance rights; 2. Holds that there has been no violation of Article 1 of Protocol No. 1, taken together with Article 14 of the Convention, in respect of both applicants' incapacity to receive gifts; 3.", "Holds that it is unnecessary to examine the complaints under Article 8 of the Convention, taken together with Article 14, in respect of the first applicant's inheritance rights; 4. Holds that there has been a violation of Article 8 of the Convention, taken together with Article 14, in respect of both applicants' incapacity to receive gifts; 5. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums; (i) EUR 612,145 (six hundred and twelve thousand one hundred and forty-five euros) in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (iii) EUR 34,440 (thirty-four thousand four hundred and forty euros) in respect of costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Holds (a) that the respondent State is to pay the second 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 278,634 (two hundred and seventy-eight thousand six hundred and thirty-four euros) in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (iii) EUR 17,600 (seventeen thousand six hundred euros) in respect of costs and expenses; (iv) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants' claims for just satisfaction.", "Done in French, and notified in writing on 22 December 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ROMANESCU v. ROMANIA (Application no. 78375/11) JUDGMENT STRASBOURG 16 May 2017 FINAL 16/08/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Romanescu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 4 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 78375/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Marian Romanescu (“the applicant”), on 21 November 2011. 2. The applicant was represented by Mr D.V. Burticel, a lawyer practising in Bucharest.", "The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. On 11 July 2013 the complaints concerning the effectiveness of the criminal investigation, the length of the criminal proceedings and the lack of an effective domestic remedy were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. As Iulia Antoanella Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28 § 3 of the Rules of the Court), the President decided to appoint Krzysztof Wojtyczek to sit as an ad hoc judge (Rule 29 § 2 of the Rules of the Court).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Bucharest. A. Background to the case 6.", "As an officer in a sub‑unit of the special anti-terrorist unit within the special forces for State security (hereinafter “the Securitate”), the applicant participated in the events which commenced in Bucharest on 21 December 1989 and led to the fall of the Ceausescu dictatorship on 22 December 1989. 7. The applicant was arrested by army forces and held in detention from 22 December until 23 December 1989. He was then held by the unit’s commander from 25 December 1989 until 2 February 1990. During this period of time, he was subjected to ill-treatment and, as a result, he suffered depression and he was placed on the officers reserve list on the grounds of poor health (see paragraphs 8 - 13 below).", "B. Criminal proceedings 8. On 29 April 1990 the applicant filed a criminal complaint with the military prosecutor, alleging that he had been ill-treated and illegally detained in the Securitate building and requesting the punishment of various officials, including the unit’s commander, G.A. The military prosecutor questioned the defendants and a large number of witnesses during the criminal investigation and gathered medical evidence. 9.", "On 2 December 1993 the military prosecutor found that the unit’s commander G.A. had been responsible for the applicant’s deprivation of liberty and his injuries; however, criminal proceedings could not be initiated because the commander had died. 10. On 16 December 1993 the applicant asked the military prosecutor to extend the investigation to other officials he alleged were involved, including doctor P.I. and various Securitate officers.", "11. On 2 March 1995 the military prosecutor decided not to initiate criminal proceedings against the doctor P.I. on the ground that the constituent elements of the alleged offence were not present. Following the applicant’s appeal, this decision was set aside by a decision of 25 September 1996 and the investigation continued. 12.", "On 21 October 1997 the military prosecutor found doctor P.I. liable to pay an administrative fine; however, the type of offence he committed had been pardoned by a decree of July 1997. The military prosecutor discontinued the investigation in respect of the dead defendant, G.A. The criminal case related to the other defendants, the Securitate officers, was severed into separate proceedings. 13.", "On 20 February 1998 and 16 February 1999 the military prosecutor decided not to initiate criminal proceedings against some of the defendants as the applicant’s complaint had become partly statute-barred. The investigation into crimes allegedly committed by three of the defendants was severed and jurisdiction was relinquished to the prosecuting authorities at the High Court of Cassation and Justice in order to be joined to the main criminal investigation into the events of December 1989. 14. On 27 June 2005 and 23 August 2007 the applicant was heard as a witness and as a civil party in the main criminal investigation. 15.", "The most important procedural steps taken in the main criminal investigation are summarised in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011), and Alecu and Others v. Romania (nos. 56838/08 and 80 others, §§ 10-13, 27 January 2015). Subsequent developments are as follows. 16.", "Following the entry into force of the new Code of Criminal Procedure in February 2014, jurisdiction over the case was relinquished in favour of the military prosecutor’s office. 17. On 14 October 2015 the prosecutor’s office closed the main investigation, finding that the complaints were partly statute-barred and partly ill-founded. The parties have not submitted any information on whether there was an appeal against that decision. II.", "RELEVANT DOMESTIC LAW 18. The legal provisions in relation to criminal proceedings in connection with the events of December 1989 and concerning the statutory limitation of criminal liability are detailed in Association “21 December 1989” and Others, cited above, §§ 95-100; Elena Apostol and Others v. Romania, no. 24093/14 and 16 others, §§ 17-23, 23 February 2016; Ecaterina Mirea and Others v. Romania, no. 43626/13 and 69 others, §§ 16-20, 12 April 2016; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 193-196, ECHR 2014 (extracts).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant complained of the lack of an effective, impartial and thorough investigation capable of leading to the punishment of those responsible for the harm he suffered during the events of December 1989 in Bucharest. He invoked 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.” A. Admissibility 20. 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 21. The Government pointed out the steps taken by the national authorities in order to complete the investigation and made reference to case Association “21 December 1989” and Others (nos.", "33810/07 and 18817/08, 24 May 2011). 22. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be 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 (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Mocanu and Others v. Romania [GC], nos.", "10865/09, 45886/07 and 32431/08, §§ 317‑19, ECHR 2014 (extracts)). 23. Turning to the circumstances of the present case, the Court first observes while it is true that in 1990 the applicant lodged a criminal complaint with the prosecutor’s office about ill-treatment during the events of December 1989 (see paragraph 8 above), according to its findings with respect to its jurisdiction ratione temporis in the case of Mocanu and Others (cited above, §§ 205-211), only the period after 20 June 1994, when the Convention entered into force in respect of Romania, can be taken into consideration in examining the complaint under the procedural limb of Article 3. The Court further notes that on an unspecified date after 1994, the applicant’s case was joined to the main criminal investigation opened ex officio with regard to the armed suppression of the demonstrations of December 1989 in Bucharest and other cities, with a view to establishing the circumstances of the death or injury of a large number of people (see paragraph 13 above). From that moment onwards, the applicant’s case followed the procedural path of the main investigation, as described by the Court in the cases of Association “21 December 1989” and Others v. Romania (cited above) and Alecu and Others v. Romania (nos.", "56838/08 and 80 others, 27 January 2015). 24. The Court recalls that in those two cases, as well as in the cases of Elena Apostol and Others v. Romania (no. 24093/14 and 16 other cases, 23 February 2016) and Ecaterina Mirea and Others v. Romania (no. 43626/13 and 69 others, 12 April 2016), it found the same main investigation to be procedurally defective, notably by reason of its excessive length and long periods of inactivity, as well as because of the lack of involvement of the victims or their relatives, respectively, in the proceedings and of the lack of information to the public about the progress of the inquiry.", "25. Noting that similar shortcomings are discernible in the present case, the Court sees no reason to depart from its previous findings and holds that there has been a violation of Article 3 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 26. The applicant complained of the length of the criminal proceedings related to his complaint about the events of December 1989.", "He also complained that he did not have at his disposal an effective remedy in respect of the determination of his claims. He relied on Articles 6 § 1 and 13 of the Convention. 27. The Government disagreed with the applicant’s arguments. 28.", "Having regard to the finding relating to Article 3 (see paragraph 25 above), the Court considers that it is not necessary to examine separately the admissibility and merits of the applicant’s complaints under Articles 6 § 1 and 13 of the Convention (see, mutatis mutandis, Association “21 December 1989” and Others, cited above, § 181, and Alecu and Others, cited above, § 45). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30.", "The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage. 31. The Government contested that claim as excessive. 32. The Court considers that the violation under the procedural limb of Article 3 has caused the applicant substantial non-pecuniary damage, such as distress and frustration.", "Ruling on an equitable basis, it awards him EUR 7,500, under this head, plus any tax that may be chargeable. B. Costs and expenses 33. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 34.", "The Government argued that the applicant had failed to provide any documents to justify the claim. 35. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that the applicant has not submitted any documents under this head, the Court rejects the claim for costs and expenses. C. Default interest 36.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the complaint concerning Article 3 of the Convention admissible; 2. Holds, by six votes to one, that there has been a violation of Article 3 of the Convention under its procedural limb; 3. Holds, unanimously, that there is no need to examine the admissibility and merits of the complaints under Articles 6 § 1 and 13 of the Convention; 4.", "Holds, by six votes to one, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five 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; 5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Krzysztof Wojtyczek is annexed to this judgment. G.Y.M.T.", "DISSENTING OPINION OF JUDGE WOJTYCZEK 1. I expressed my opinion on the temporal scope of the application of the Convention in my separate opinions appended to the judgments in the cases of Janowiec and Others v. Russia ([GC] (nos. 55508/07 and 29520/09, ECHR 2013) and Mocanu and Others v. Romania ([GC], nos. 10865/09, 45886/07 and 32431/08, ECHR 2014 (extracts)). In those two separate opinions I explained in detail why, in my view, the Convention does not impose on the High Contracting Parties the obligation to investigate events which pre-dated the entry into force of that instrument in respect of individual States.", "2. The events, which the applicant said had not been properly investigated, took place before the entry into force of the Convention in respect of Romania. Finding a violation of the Convention in the instant case amounts to retroactively imposing treaty obligations on the High Contracting Party without a legal basis." ]

[ "FIRST SECTION CASE OF LEONIDIS v. GREECE (Application no. 43326/05) JUDGMENT STRASBOURG 8 January 2009 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Leonidis v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Christos Rozakis,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43326/05) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Grigorios Leonidis (“the applicant”), on 23 November 2005.", "2. The applicant was represented by the Greek Helsinki Monitor. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr K. Georgiadis, Adviser at the State Legal Council, and Mr I. Bakopoulos, Legal Assistant at the State Legal Council. 3. The applicant contended that his son had been killed in circumstances in which resort to lethal force was not justified.", "He also complained that the authorities had failed to carry out an adequate, effective and prompt investigation into the incident. 4. On 14 September 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mr Grigorios Leonidis, is a Greek national of Russian-Pontic origin who was born in 1952 and lives in Thessaloniki. A. Circumstances surrounding the death of Nikolaos Leonidis as established by the domestic courts 6. In the early hours of 25 March 2000 the applicant’s 18 year-old son, Nikolaos Leonidis, and two of his friends were in a district of the old town of Thessaloniki.", "7. Plainclothes police officers G.A. and C.T., serving in the Ano Poli police station, were out on patrol duty in an unmarked police vehicle when they noticed the three young men on the street. The three men were not committing any offence, but G.A. noticed in his car mirror that one of them turned to look at the police car as it passed.", "Since several burglaries had been recently reported in that area, he decided to carry out an identity check. However, as he drove back towards them, the three men ran away. 8. The two police officers got out of the car and ran after them. The chase apparently continued for a minute.", "The three young men split up and ran off in different directions. 9. G.A. ran after Nikolaos Leonidis. As he approached him, Nikolaos Leonidis put his hand inside his jacket.", "Suspecting that the latter might take out a weapon, G.A pulled out his own service revolver, a 357 magnum Smith and Wesson, which had no safety catch and was loaded. Holding the revolver in his right hand, with his finger on the trigger, he ordered Nikolaos Leonidis to stop. After running a few metres, Nikolaos Leonidis tired of the chase, lost his balance and tripped. That allowed G.A. to catch hold of him with his left hand.", "G.A. then pushed him against a car and immobilised him by forcing him to raise his hands and place them on the car roof while he was pointing his gun towards the sky. 10. Then, with his left hand G.A. twisted the young man’s left wrist behind his back in order to handcuff him.", "At that point Nikolaos Leonidis jabbed him with his right elbow in the right side, causing him sharp pain. Reacting to the pain, G.A. bent forward, and while he was drawing himself back up, his revolver went off, firing a single shot in the lower part of Nikolaos Leonidis’ right ear, instantly killing him. 11. C.T., who had in the meantime arrived close to the two men, was five metres away from the scene and partially witnessed the incident.", "From where he was standing, he was not able to see the shooting. B. Criminal investigation into the killing 12. A few hours after the fatal shot police officers from the Ano Poli police station conducted a preliminary inquiry (προανάκριση) into the event. The police officers inspected the area and drafted an inspection report as well as a sketch plan.", "In addition, they took a statement from C.T. A few hours later, a crime scene reconstruction was conducted in the presence of the Public Prosecutor and a report was drawn up in this respect. 13. On the same day a forensic post-mortem examination was performed by a forensic medicine expert from the University of Thessaloniki. The doctor indicated that the cause of death was a fracture of the cranium due to a gunshot wound and that the shot had been fired either at point-blank range or from a few centimetres distance.", "According to the report, the exact range was to be established after further examination in the criminal police laboratory. 14. The forensic medicine expert also examined G.A. According to the report, G.A. was diagnosed with “a contusion in the right hemithorax”.", "15. On the same day, at around 1 p.m., the applicant was informed of the incident. 16. The following day, the Public Prosecutor of Thessaloniki instituted criminal proceedings against G.A. for wilful homicide, exceeding the limits of self-defence and unauthorised use of weapons.", "The applicant joined the proceedings as a civil party, claiming a specific amount by way of damages. 17. On the same day G.A. gave his statement before the investigating judge and he was set free after he had given a bank guarantee of EUR 1,467. 18.", "On 5 April 2000 the applicant gave a statement and asked the investigating judge to examine in detail the amount of pressure that needs to be put on the trigger in order to release the hammer and fire the gun as well as whether the use of the gun had been absolutely necessary after the victim’s arrest. 19. On 24 May 2000 the criminal police laboratory published the report on the range at which the bullet had been fired. According to the two experts, the sample of skin taken from the victim was too small to establish the exact range. 20.", "On 19 June 2000 the ballistic examination of the weapon was conducted. The report indicated that only one cartridge had been fired from G.A.’s weapon. C. Criminal proceedings against police officer G.A. 21. Following the preliminary inquiry the case was referred to the Indictment Division of the Thessaloniki Criminal Court of First Instance, which on 29 March 2001 decided not to press charges against G.A., considering that Nikolaos Leonidis’ death had resulted from his sudden and violent assault on G.A.", "and the accidental discharge of the latter’s revolver that was its consequence (decision no. 513/2001). 22. On 3 April 2001 the applicant lodged an appeal. On 18 June 2001 the Indictment Division of the Thessaloniki Court of Appeal confirmed the dismissal of charges against G.A.", "(decision no. 895/2001). It stated, inter alia, that: “The blow surprised the defendant, his body first bent forward and then backwards to the left, because of the pain and the surprise he felt, and his weapon, which was a revolver and did not have a safety catch, went off. (...) [Nikolaos Leonidis’s death] was not the result of the defendant’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’s revolver that was its consequence. There is nothing to show that [G.A.", "], given the circumstances and his knowledge and abilities, could have foreseen and avoided the death of the victim.” 23. On 9 July 2001 the applicant appealed to the Court of Cassation. 24. On 11 April 2003 the Court of Cassation overturned the decision appealed against and remitted the case to the Indictment Division of the Thessaloniki Court of Appeal for reconsideration (decision no. 1013/2003).", "It held that the reasoning given in the decision appealed against was ambiguous, contradictory and insufficient. In particular, it did not indicate how the trigger had been squeezed, although it implied that the discharge was connected to the victim’s violent movement. Furthermore, it did not make references to the forensic ballistics report. 25. On 20 June 2003 the Indictment Division of the Thessaloniki Court of Appeal overturned the dismissal of charges and committed the defendant for trial before the Katerini Assize Court.", "It stated, inter alia, that the victim had already been immobilised at the time he was shot and did not pose a threat to the defendant (decision no. 872/2003). 26. On 28 August 2003 the defendant appealed to the Court of Cassation. 27.", "On 23 December 2004 the Court of Cassation dismissed the defendant’s appeal (decision no. 2396/2004). 28. On 21 June 2005 the hearing before the Katerini Assize Court took place. The Katerini Assize Court heard evidence from the applicant, two other relatives of the victim, police officer C.T.", "and two other police officers, as well as from the defendant. 29. The Katerini Assize Court also heard statements from two experts the defendant had asked to be called. The first expert, a forensic medicine expert, who had read the post mortem examination, reached a conclusion supporting the defendant’s view. The second expert was a mathematician who put forward a theory on the trajectory of the bullet in support of the defendant’s view.", "The court also read out various documents, such as the results of the post mortem examination of the deceased, forensic medical reports, autopsy reports, photos and the crime scene reconstruction report. 30. On the same day the Katerini Assize Court published its judgment acquitting the defendant by four votes to three (judgment no. 47/2005). On the basis of the case-file and the evidence submitted the majority held in particular that: “... the violent blow surprised the defendant, who felt pain and bent forward and then backwards to the left and his muscles were “contracted” because of the pain that the violent and unexpected hit had caused him (...), ... because of his reflex action the defendant involuntarily squeezed the trigger of his revolver, which was not equipped with a safety catch, and a bullet was fired (...) ...", "It is apparent that the defendant had not intended to kill the victim, as charged, since: 1) the gun went off against his will and it was the result of the involuntary reflex action of the muscles of his right arm as a response to the sudden and intense blow that he had received from the victim; 2) he did not know the victim and he had no reason to hurt him, let alone to kill him; 3) if he had really wanted to kill Nikolaos Leonidis ..., he would have shot him during the chase and before his arrest; in any event there was no longer any reason to shoot him since he had already immobilised and arrested him ...; 4) only one bullet was fired from the gun ...; 5) from the trajectory of the bullet [according to the report of the mathematical expert], it appears that the hand that had fired the gun had not been steady ...; furthermore, it does not appear from the evidence that the defendant shot the victim in cold blood ... or that he acted in self-defence, since no attack was launched by the victim, who had already been immobilised ...” 31. Furthermore, the Katerini Assize Court examined the facts complained of under the provisions concerning reckless homicide. It concluded that: “... on the night of 25 March 2000 [G.A.] carried out his duties in the most impeccable way possible. He pursued the deceased with professional consciousness, he did not fire his gun during the pursuit, although another in his place might have done so, and, most importantly, he arrested and immobilised the deceased holding his revolver in his right arm and pointing it to the sky, in order to avoid accidents... What followed, i.e.", "the death of Nikolaos Leonidis, was not the result of an intentional act of the defendant or the latter’s reckless behaviour, but of the victim’s violent and sudden assault that caused the reflex action of the defendant ... and the discharge of the revolver that the latter was holding in his right hand. The reflex action of the defendant was an instantaneous reaction of the nervous system, an automatic contraction of the body muscles (including those of the right arm) out of the defendant’s control, as a response to the pain suffered from the violent and sudden blow; since this contraction was not a voluntary action, it cannot be considered an actus reus and hence he [the defendant] cannot be considered criminally liable... 32. The Katerini Assize Court reached the same conclusion as far as the charge of unauthorised use of weapons was concerned. In particular, it held: “Consequently, since neither the death of the victim nor the use of the defendant’s gun can be considered as “acts” in the legal sense of the term, the objective element of the crimes that the defendant is being accused of has not been established and he should be declared innocent.” 33. Two of the minority judges, including the President of the Katerini Assize Court, considered that the defendant should have been declared guilty of reckless homicide and unauthorised use of weapons.", "They based their reasoning on the way revolvers function: “... There is a slight time delay of 1 to 1.5 seconds between the moment the trigger is pulled and the moment the gun fires. This is the time the hammer needs to be cocked and released; the time the hammer needs to be cocked corresponds to the time the cylinder needs to rotate clockwise. When the hammer has already been cocked, it needs less pressure on the trigger to release the hammer and fire the gun. On the contrary, when the gun is in a hammer-down position, it needs more pressure on the trigger and more time to fire the gun, since in this case, the trigger first cocks the hammer (thus advancing the cylinder) and then releases the hammer at the rear of its travel, firing the round in the chamber.", "In the present case, it appears from the testimonies ... that ... with his left hand [G.A.] twisted the young man’s left wrist behind his back in order to handcuff him, while with his right hand he was holding the revolver, obviously with the hammer cocked, pressing against the victim’s right scapula. ... [Leonidis’s death] resulted from the defendant’s negligent conduct, since: 1) he should not have cocked the hammer of his gun, since in that case the trigger needs less pressure to fire the gun; 2) he should not have had his finger on the trigger but on its protective frame; 3) he should not have been pressing the gun against the victim’s scapula while he had his finger on the trigger and the hammer cocked. If the gun had been in a hammer-down position, even if the defendant had had his finger on the trigger, it would have been more difficult for the gun to go off, since it required more pressure on the trigger. ... the defendant had no intention to kill the victim ... he should have been declared guilty of reckless homicide and unauthorised use of weapons.” 34.", "On 7 November 2005 the applicant, who did not have the right to appeal in cassation under domestic law, asked the Public Prosecutor to bring the case before the Court of Cassation. On 14 November 2005 the Prosecutor dismissed his request. D. Administrative investigation into the incident 35. Shortly after the shooting, G.A. was declared free of duty for two days and he was later granted sick leave for a total period of 52 days.", "On 17 May 2000 he resumed his duties in Ano Poli. On 3 July 2000 he was transferred to an administrative post in the Thessaloniki General Police Directorate. 36. In the meantime, on 27 March 2000, two days after the fatal incident, the Thessaloniki police headquarters launched a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση, – SAI) in order to ascertain the exact circumstances in which Nikolaos Leonidis’s death had occurred and whether police officer G.A was guilty of any disciplinary offence. That investigation was assigned to an officer of the police department dealing with administrative investigations.", "37. On 3 April 2001 the report on the findings of the SAI was issued. According to the report, the death of Nikolaos Leonidis was not the result of the police officer’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’s revolver that was its consequence. The report concluded that, given the circumstances of the case, it was advisable not to institute disciplinary proceedings against G.A. In accordance with this recommendation, no disciplinary proceedings were instituted.", "E. Civil proceedings before the administrative courts 38. In the meantime, while the case was pending before the penal courts, on 29 November 2002 the applicant brought an action against the State under section 105 of the Law introducing the Civil Code seeking compensation for damage sustained as a result of an unlawful act by a public authority, namely, his son’s killing by police officer G.A. 39. On 31 January 2005, approximately five months prior to G.A.’s acquittal by the Katerini Assize Court, the Thessaloniki Administrative Court of First Instance allowed the applicant’s claims in part (judgment no. 148/2005).", "It held inter alia: “... The grounds set forth in Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms, do not apply under the circumstances of the present case, since [G.A.] had not been attacked by the victim ... nor was he acting in self-defence... The use of the firearm by the police officer in order to arrest the deceased was unlawful and resulted in the young man’s death.", "... The police officer’s outline of events, according to which the firing was provoked by a ‘reflex action’ following the blow he had received from the victim – in the sense that he involuntarily pulled the trigger – cannot be accepted, because it is in contradiction with his own statement concerning an ‘unconscious instinctive reaction caused by the violent blow he had received’. In fact, that means that pulling the trigger was an instinctive reaction to the victim’s behaviour, which implies that [G.A.] acted without using his reason and without showing the prudence and discipline expected from a police officer with ten years of experience. ... thus, police officer G.A is 70 % responsible for Nikolaos Leonidis’s death since he used his firearm in violation of the applicable law...” 40.", "On 15 April 2005 the State appealed to the Thessaloniki Administrative Court of Appeal challenging the implementation of the substantive law and the assessment of the evidence. It referred subsequently, in a separate memorandum, that G.A. had been acquitted by the Katerini Assize Court on 21 June 2005. 41. On 19 May 2007 the Thessaloniki Administrative Court of Appeal rejected the appeal and awarded the applicant EUR 80,000 EUR for non-pecuniary damage (judgment no.", "432/2007), considering inter alia: “Even supposing that the use of the firearm by the police officer in order to arrest the deceased was not in breach of a specific provision, nevertheless it constituted unlawful conduct, since he failed to take those steps that are appropriate to his duties, that result from the relevant legislation, from common sense, from his scientific and professional education and experience and from the notion of good faith and aim at the protection of individual freedoms, namely the right to life and limb. Consequently, the appellant is responsible...” II. RELEVANT DOMESTIC LAW AND PRACTICE 42. At the material time, the use of firearms by law-enforcement officials was regulated by Law no. 29/1943, which was enacted on 30 April 1943 when Greece was under German occupation.", "Section 1 of that statute listed a wide range of situations in which a police officer could use firearms (for example in order “to enforce the laws, decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies”), without being liable for the consequences. These provisions were modified by Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. Law no.", "29/1943 was criticised as “defective” and “vague” by the Public Prosecutor of the Supreme Court (see Opinion no. 12/1992). Senior Greek police officers and trade unions have called for this legislation to be updated. In a letter to the Minister of Public Order dated April 2001, the National Commission for Human Rights (NCHR), an advisory body to the government, expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative (NCHR, 2001 Report, pp. 107-15).", "In February 2002 the Minister of Public Order announced that a new law would shortly be enacted, which would “safeguard citizens against the reckless use of police weapons, but also safeguard police officers who will be better informed as to when they can use them”. 43. On 24 July 2003 Law no. 3169/2003, which is entitled “Carrying and use of firearms by police officers, training of police officers in the use of firearms and other provisions”, came into force. Law no.", "29/1943 was repealed (section 8). Further, in April 2004, the “Pocket Book on Human Rights for the Police”, which was prepared by the United Nations Centre for Human Rights, was translated into Greek with a view to its being distributed to Greek policemen. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 6 OF THE CONVENTION 44. Relying on Articles 2 and 6 of the Convention, the applicant alleged that the police officer seeking to arrest his son had used excessive firepower which resulted in his death and complained that no effective inquiry had been conducted into the event that could lead to the punishment of the perpetrator.", "45. The Court considers that the aforementioned complaints, as formulated by the applicant, only fall under the scope of Article 2 of the Convention and therefore should be examined from the standpoint of this provision, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 46. The Court notes that the applicant brought civil proceedings against the State in respect of his son’s killing by police officer G.A and was successful in these proceedings, being awarded and receiving compensation for the non-pecuniary damage he had sustained in that respect (see paragraphs 38-41 above). However, the Court recalls that in cases of wilful ill-treatment or unlawful use of force resulting in death, the Court considers that the breach of Article 2 cannot be remedied exclusively through an award of compensation to the relatives of the victim. As it was pointed out in the Nikolova and Velichkova case, this is so because, if the authorities could confine their reaction to incidents of wilful police ill-treatment to the mere payment of compensation, while not doing enough in the prosecution and punishment of those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity and the general legal prohibitions of killing and torture and inhuman and degrading treatment, despite their fundamental importance, would be ineffective in practice. (see, Nikolova and Velichkova v. Bulgaria, no.", "7888/03, § 55, 20 December 2007). 47. Therefore, the possibility of seeking and receiving compensation represents, in these cases, only one part of the measures necessary to provide redress for the alleged violations. The Court must, then, also examine the effectiveness of the criminal proceedings against the police officer in order to ascertain whether the applicant was afforded appropriate redress (Nikolova and Velichkova, cited above, § 56). 48.", "In these circumstances, the Court considers that the applicant may still claim to be a victim within the meaning of Article 34 of the Convention (see, mutatis mutandis, Krastanov v. Bulgaria, no. 50222/99, § 48, 30 September 2004). 49. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. B.", "Merits 1. The submissions of the parties 50. The applicant submitted that his son’s death was the result of the unnecessary and disproportionate use of force by the police officer involved in the incident. Relying on previous case-law (Makaratzis v. Greece, Celniku v. Greece, and Karagiannopoulos v. Greece) he complained that the legislation on the use of weapons by agents of the State was obsolete and inadequate. The applicant also complained about the failure of investigating and prosecuting authorities to proceed with a prompt, independent, comprehensive and effective official investigation into his son’s death.", "51. The Government pointed out that, as it had been established by the domestic courts, police officer G.A. was trying to carry out a lawful arrest and did not deliberately shoot the applicant’s son. The latter’s unfortunate death had been the result of his own violent and sudden assault on the police officer that had caused the discharge of the revolver. According to the Government, G.A.", "had tried to minimise any risk and preserve the applicant’s son’s life. That was clearly demonstrated by the fact that the police officer was pointing his gun towards the sky. There had been no element of negligence or oversight in the way in which the operation was conducted. 52. The Government claimed that immediately after the incident a preliminary investigation had been launched and charges mandatorily brought against G.A.", "According to the Government, the investigation had been prompt and effective. In particular, the authorities had showed initiative and had produced medical, forensic and ballistic reports within a short period of time. In addition, the administrative inquiry into the incident had been independent, since it had been assigned to an officer of the police department dealing with administrative investigations. It concluded that both inquiries took into account the different elements produced and satisfied the requirements of Article 2 of the Convention. 2.", "The Court’s assessment a. Whether the death of the applicant’s son amounted to a breach of the substantive requirements of Article 2 of the Convention i. General principles 53. The Court reiterates that Article 2, 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.", "In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324; Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004-XI; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005-VII). 54.", "As the text of Article 2 § 2 itself shows, the use of lethal force by State security forces may be justified in certain circumstances. However, any use of force must be no more than “absolutely necessary”, that is to say it must be strictly proportionate in the circumstances. In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed (see Andronicou and Constantinou v. Cyprus, 9 October 1997, §§ 171, 181, 186, 192, and 193, Reports 1997-VI and McKerr v. the United Kingdom, no. 28883/95, §§ 108 et seq., ECHR 2001-III). 55.", "Accordingly, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if refraining from using lethal force may result in the opportunity to arrest the fugitive being lost (see Makaratzis, cited above, §§ 64-66). 56. In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Celniku v. Greece, no. 21449/04, § 47, 5 July 2007 and Karagiannopoulos v. Greece, no.", "27850/03, §§ 53-54, 21 June 2007). 57. Furthermore, law-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms not only on the basis of the letter of the relevant regulations but also with due regard to the pre-eminence of respect for human life as a fundamental value (see McCann and Others, cited above, pp. 61-62, §§ 211-214; and Nachova and Others, cited above, § 97). ii.", "Application of the above principles to the present case 58. In the present case, the Court notes firstly that it is undisputed between the parties that Nikolaos Leonidis was killed in the course of a spontaneous police operation by police officer G.A. The Court observes that a judicial determination of the facts took place in the criminal proceedings brought against the police officer. Even though certain facts remain unclear, the Court considers, in the light of all the material produced before it, that there is a sufficient factual and evidentiary basis on which to assess the case, taking as a starting point the findings of the national courts (see Makaratzis v. Greece [GC], no. 50385/99, § 47, ECHR 2004-XI; and Perk and Others v. Turkey, no.", "50739/99, § 57, 28 March 2006). 59. According to the findings of the domestic courts, the fatal shot was triggered not by any deliberate action on the part of police officer G.A. but by the sudden reaction of the victim. Though the Court is not bound by the findings of domestic courts, in normal circumstances cogent elements are required for it to depart from the findings of fact reached by those courts (see Klaas, cited above, p. 18, § 30).", "In the present case and in view of the material provided, the Court sees no reason to question the fact as established by the Greek courts. Therefore, the Court takes the view that Nikolaos Leonidis’s death was not the result of a deliberate action. 60. Nevertheless, in the light of the foregoing, the Court will have to determine whether the way in which the police operation was conducted showed that the police officer had taken appropriate care to ensure that any risk to the life of the applicant’s son was kept to a minimum. 61.", "In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, cited above, § 182). 62. The Court finds it established that the operation in question was a spontaneous chase decided on the spot by the two police officers and it was mounted with the aim of carrying out an identity check on the applicant’s son and his friends. The latter were neither committing any offence nor being violent nor aggressive. In the Court’s view, the mere fact that the applicant’s son ran away when the two policemen approached him does not imply that he did so because he had committed an illegal act.", "This is even more so in the present case where it might not have been initially obvious to him that the two men were policemen. In this connexion, the Court recalls that the two policemen were in plain clothes and were in an unmarked vehicle. 63. The Court does not find it necessary, however, to establish whether there was initially a need to pull out a weapon during the chase, since it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life (see Huohvanainen v. Finland, no. 57389/00, § 97, 13 March 2007).", "However, the Court considers that after he had immobilised the applicant’s son, police officer G.A. had no reason to keep hold of his weapon, especially with his finger on the trigger. In fact, in the Court’s view, the police officer should have put his weapon in its holster before handcuffing Nikolaos Leonidis who was not holding a weapon and was not in any way threatening the police officer’s life or limb. 64. In this respect, the Court attaches particular importance to the views expressed by the minority judges of the Katerini Assize Court as to the negligent use of the weapon according to which the gun should not have been cocked, since in that case it needs less pressure on the trigger to fire the gun.", "In addition, the Court finds no reason to question the findings of the administrative courts which examined the applicant’s civil claims and concluded that the use of the firearm by the police officer in order to arrest the deceased had been unlawful and that he had not shown the prudence and discipline expected from a police officer of his experience. 65. The Court is also mindful of the fact that at the relevant time the use of weapons by agents of the State was governed by legislation which was recognised to be obsolete and inadequate in a modern democratic society. The Court recalls that it has already held that the system in operation did not provide those responsible for applying the laws with clear guidelines and criteria concerning the use of force in peacetime (see Makaratzis, cited above, § 62, Celniku v. Greece, cited above, § 51 and Karagiannopoulos v. Greece, cited above, § 63). The lack of clear rules might also explain why G.A.", "acted rather irresponsibly, which he would probably not have done had he received the proper training. 66. In the light of the above, the Court considers that, as far as its obligation under the first sentence of Article 2 § 1 to avoid real and immediate risk to life in hot-pursuit police operations, the respondent State had not, at the relevant time, done all that could be reasonably expected of it (see, mutatis mutandis, Makaratzis v. Greece [GC], cited above, § 71). Accordingly, there has been a violation of Article 2. b. Whether the investigation into the incident was adequate and effective, as required by Article 2 of the Convention i.", "General principles 67. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002-IV).", "Since the true circumstances of the death in such cases are often, in practice, largely confined within the knowledge of State officials or authorities, the bringing of appropriate domestic proceedings, such as a criminal prosecution, disciplinary proceedings and proceedings for the exercise of remedies available to victims and their families, will be conditioned by an adequate official investigation, which must be independent and impartial (see Makaratzis, cited above, § 73). 68. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading 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 Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001). ii. Application of the above principles to the present case 69.", "In the present case the Court recalls that three separate sets of proceedings were conducted in order to establish the facts of the case, to identify those responsible and, if appropriate, secure the punishment of those concerned. The criminal investigation was conducted immediately and in the presence of the Public Prosecutor. Statements were taken by the latter from G.A. and C.T. A forensic post mortem examination was performed as well as a medical examination of G.A.", "On the basis of these preliminary steps, the Public Prosecutor decided the following day to institute criminal proceedings against G.A. for, inter alia, wilful homicide. The ensuing investigation was carried out by an investigating judge. Laboratory and ballistics reports were obtained in May and June 2000. 70.", "Parallel to the above criminal investigation the Thessaloniki police headquarters launched, on 27 March 2000, a Sworn Administrative Inquiry and assigned the investigation to a police officer from a different department. A report was concluded on 3 April 2001. 71. The police officer G.A. was brought to trial before the Katerini Assize Court which eventually acquitted him on 21 June 2005, on the grounds that no criminal offence had been committed.", "The Court has found no evidence in the present case which would indicate that the Assize Court’s findings were reached other than on the basis of the assessment of the evidence produced. Furthermore, nothing suggests that the acquittal was caused by an investigation or evidence which the domestic courts found to be incomplete for the assessment of G.A.’s criminal liability. 72. Civil proceedings were instituted by the applicant against the State. On the basis of the same investigative measures the State was held liable for the death of the applicant’s son by final judgment of 19 May 2007 and ordered to pay damages.", "Neither in these proceedings were there reasons to consider that the findings were reached due to an incomplete investigation. 73. Having regard to the above the Court is satisfied that the investigations made were capable of ascertaining the circumstances of the case, to identify those responsible and to punish where appropriate. Furthermore, the Court has found no reason to conclude that the investigation made was not prompt or otherwise undermined the effectiveness of the proceedings. 74.", "Accordingly the Court finds that there has been no violation of Article 2 of the Convention in respect of the respondent State’s obligation to conduct an effective investigation into the circumstances of the incident which led to the death of the applicant’s son. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76.", "The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage. 77. The Government argued that the non-pecuniary damage suffered by the applicant for the loss of his son had been entirely covered since the Thessaloniki Administrative Court of Appeal had awarded the applicant EUR 80,000 for non-pecuniary damage. 78. Having regard to the above, the Court considers that the finding of a violation of the Convention constitutes, in itself, sufficient just satisfaction within the meaning of Article 41 of the Convention.", "B. Costs and expenses 79. The applicant who declared that he was being represented by Greek Helsinki Monitor free of charge claimed EUR 4,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. In this connection he submitted a bill of costs drawn up by a lawyer cooperating with Greek Helsinki Monitor for an amount of EUR 4,000. 80.", "The Government contested the amount. It argued that the applicant had been represented before the domestic courts by another lawyer and that the amount claimed had not been paid by the applicant but by a non-profit organisation. 81. According to the Court’s settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII).", "82. In the present case, the Court notes that the applicant was represented free of charge by Greek Helsinki Monitor. Regard being had to this, the Court considers it reasonable to reject the applicant’s claims under this head. FOR THESE REASONS, THE COURT 1. Declares the application admissible unanimously; 2.", "Holds unanimously that there has been a violation of Article 2 of the Convention on account of shortcomings in the police operation in which the applicant’s son died; 3. Holds by 6 votes to 1 that there has been no violation of Article 2 of the Convention in respect of the respondent State’s obligation to conduct an effective investigation into the circumstances of the incident which led to the death of the applicant’s son; 4. Holds by 6 votes to 1 that the finding of a violation constitutes in itself sufficient just satisfaction; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenNina VajićRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Spielmann is annexed to this judgment. N.V.S.N. PARTLY DISSENTING OPINION OF JUDGE SPIELMANN (Translation) I voted against points 3 and 4 of the operative part for the following reasons. 1. I do not share the majority view that there has been no violation of Article 2 of the Convention in respect of the respondent State’s obligation to conduct an effective investigation into the circumstances of the incident which led to the death of the applicant’s son.", "2. I note that the authorities showed their willingness to conduct an investigation into the shooting. In that connection, two separate sets of proceedings were conducted: criminal proceedings and an administrative inquiry. However, I am not persuaded that those proceedings were sufficiently thorough and effective to meet the above requirements of Article 2. 3.", "I also note that there were glaring omissions in the conduct of the preliminary investigation. In particular, great importance should be attached to the fact that the criminal police laboratory was unable to determine the exact distance from which the bullet was fired, because of an omission in the collection of evidence. In fact, the sample of skin taken from the victim was not large enough, so the experts were unable to conduct an effective examination in that respect. Furthermore, it seems that no effort was made to identify and question the victim’s two friends who were with him that night and might have witnessed the incident. 4.", "I am further struck by the fact that the ballistic report only concerned the number of bullets fired from G.A.’s revolver and did not mention anything about the functioning of a 357-magnum Smith and Wesson. In particular, it bore no indication as to the pressure needed in order to release the hammer and fire the gun, although the applicant had expressly invited the investigating judge to examine this issue. In this connection I regret that the question of the use of G.A.’s revolver was considered only by minority judges on the bench of the Katerini Assize Court. 5. Moreover, I cannot overlook the fact that during the hearing before the Katerini Assize Court, the forensic expert who conducted the post-mortem examination was not invited to analyse his report and express his views on the incident.", "On the contrary, the court heard evidence from another doctor who had never examined the victim, but had only read the post-mortem examination report and had been called by the defendant. I regret that the Katerini Assize Court attached great importance to the statement of this expert and based its conclusion on that and on the theory concerning the trajectory of the bullet put forward by a mathematician called by the defendant. 6. I further observe that the police officers who rushed to the scene of the crime and conducted the preliminary inquiry were attached to the Ano Poli police station, as was the officer involved in the incident, thus calling into question the ability of the officers concerned to conduct an independent inquiry, as it was highly likely that they would have personally known the officer involved and might have worked with him in the past, creating inevitable feelings of professional solidarity. This is particularly so in the present case where the applicant was not able to participate in the first stages of the preliminary proceedings, namely the inspection of the area and the crime scene reconstruction, since he was not informed of the incident until ten hours later.", "As the Court has held previously (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 325 and 337, ECHR 2007‑...): “for the investigation to be ‘effective’ ... it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.... What is at stake here is nothing less than public confidence in the state’s monopoly on the use of force. ... The Court has had occasion to find a violation of Article 2 in its procedural aspect in that an investigation into a death in circumstances engaging the responsibility of a public authority was carried out by direct colleagues of the persons allegedly involved ...", "Supervision by another authority, however independent, has been found not to be a sufficient safeguard for the independence of the investigation ...” 7. Lastly, the Court has previously underlined the importance of the suspension from duty of the agent under investigation or on trial as well as his dismissal if he is convicted (see, mutatis mutandis, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004). In the present case, I regret that, after a short period of 52 days during which he was granted sick leave, police officer G.A. resumed his duties and a few months later he was transferred to an administrative post in the headquarters of the Thessaloniki Police Directorate.", "8. In the light of the above-mentioned serious shortcomings in the investigations, I conclude that they were not effective. It is therefore my opinion that there has been a violation of Article 2 under its procedural aspect. 9. I also cannot share the view that the finding of a violation constitutes in itself sufficient just satisfaction.", "10. In the present case, the Court found a violation of Article 2 of the Convention. Admittedly, the Thessaloniki Administrative Court of Appeal had found the State responsible and had already awarded damages. But the breach of Article 2, as found by this Court, cannot be remedied exclusively by an award of compensation previously granted by the domestic courts to the relatives of the victim. In my view, the claim of non-pecuniary damage presented by the applicant under Article 41 of the Convention is clearly distinguishable from the claim presented before the domestic courts.", "In other words, I find it contradictory to decide that the applicant can still claim to be a victim within the meaning of Article 34 of the Convention (paragraph 48) and then to hold that the finding of a violation of the Convention constitutes in itself sufficient just satisfaction within the meaning of Article 41 of the Convention." ]

[ "FIFTH SECTION CASE OF MITEVA v. BULGARIA (Application no. 60805/00) JUDGMENT STRASBOURG 12 February 2009 FINAL 12/05/2009 This judgment may be subject to editorial revision. In the case of Miteva v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Karel Jungwiert,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60805/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mrs Elena Todorova Miteva (“the applicant”), on 4 February 2000.", "2. The applicant was represented by Mr D. Petrov, a lawyer practising in Varna. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova. 3. The applicant alleged, in particular, that they had been deprived of their property in violation of Article 1 of Protocol No.", "1. 4. On 9 October 2007 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the alleged deprivation of property to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.", "Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 1 October 2008, the Government, pursuant to Rule 29 § 1 (a), informed the Court that they had appointed in her stead another elected judge, namely Judge Lazarova Trajkovska. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1925 and lives in Varna.", "7. In 1968 the applicant and her husband purchased from the State a three-room flat of approximately 76 sq. m in Varna. The flat had become State-owned by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years. 8.", "In 1993, shortly after the Restitution Law (ЗВСОНИ) was passed, the former pre-nationalisation owners brought proceedings under section 7 of that law against the applicant and her husband, seeking the nullification of their title and the restoration of the property. 9. The applicant’s husband passed away in June 1996. She was his sole heir and the proceedings continued against her. 10.", "On 29 June 1996 the Varna District Court found that the 1968 transaction had been null and void and allowed the claim. On appeal, on 25 July 1997 the Varna Regional Court upheld the lower court’s judgment. The courts found that the 1968 contract had been signed by a deputy to the mayor instead of the mayor (председател на изпълнителния комитет на районния народен съвет) and that the file did not contain the requisite approval by the Minister of Architecture and Building Planning. The courts also found that the price of the flat, 5,352 levs, had not been determined correctly by the administration (the judicial expert ordered by the court in the 1996 proceedings estimated the price in 1968 at 5,725 levs). 11.", "In 1999 the applicant requested the reopening of the proceedings, stating that she had not been duly summoned for the Regional Court’s hearing held on 2 July 1997. In a judgment of 22 July 1999 the Supreme Court of Cassation rejected the request for reopening. 12. In 2000 it became possible for persons in the applicant’s situation to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The applicant did not avail herself of that opportunity within the relevant three-month time-limit.", "She applied for bonds in June 2007 but was informed by a letter of 5 July 2007 from the Varna Regional Governor that she was not entitled to compensation in the form of bonds. 13. The applicant did not leave the property voluntarily. In 1998 the restored owners instituted enforcement proceedings. The applicant was evicted on 16 August 2006.", "14. On 15 November 2006 the applicant was granted the tenancy of a two-room municipal flat in Varna. II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria (nos.", "43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007). 16. After January 2000, section 9 of the Compensation Law (ЗОСОИ) provided that persons who had lost their dwellings pursuant to section 7 of the Restitution Law, as well as pre-nationalisation owners whose claims under that provision were dismissed after 22 November 1998, could apply for compensation bonds within three months of January 2000 or within two months of the final judgment in their case. In June 2006 an amendment of section 7(3) of the Restitution Law enabled persons currently in possession of compensation bonds to obtain payment at face value from the Ministry of Finance. On 8 May 2007 the Government published regulations implementing that provision.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 17. The applicant complained that she had been deprived of her property in violation of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 18. The Government contested that argument. A. Admissibility 19. 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 20. The applicant stated that she and her husband had bought their flat in good faith and had not been responsible for the administrative omissions that had led to the nullification of their title.", "She maintained that no adequate compensation had been available to her for the deprivation of her property. 21. The Government stated that the restitution laws passed after the fall of communism were aimed at restoring justice. In the applicant’s case, the courts had applied the relevant law correctly and declared the applicant’s title null and void on account of serious violations of the law, in particular the fact that the price of the flat had not been properly determined, and argued that the applicant and her husband had in all probability been aware of these irregularities. The requisite fair balance had been struck as the applicant had been entitled to compensation in the form of bonds but had failed to submit a request in due time.", "Moreover, after her eviction from her flat she had been provided with a municipal dwelling. 22. The Court notes that the present case concerns the same legislation and issues as Velikovi and Others (cited above). 23. The facts complained of undoubtedly constituted an interference with the applicant’s property rights and fall to be examined under the second sentence of the first paragraph of Article 1 of Protocol No.", "1 as a deprivation of property. 24. The Court must examine, therefore, whether the deprivation of property at issue was lawful, was in the public interest and struck 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. 25. The Court notes that the interference was based on the relevant law and pursued an important aim in the public interest: to restore justice and respect for the rule of law.", "As in Velikovi and Others (cited above, §§ 162‑176), it considers that in the particular circumstances the question whether the relevant law was sufficiently clear and foreseeable cannot be separated from the issue of proportionality. 26. Applying the criteria set out in Velikovi and Others (cited above, §§ 183-192), the Court notes that the applicant’s title was declared null and void and she was deprived of her property on the ground that in 1968 a relevant document had been signed by the deputy of the official in whom the relevant power had been vested, a required administrative approval was not found in the file and the administration had wrongly determined the price of the flat. The irregularities were clearly imputable to the State administration; moreover, it does not appear that the applicant and her husband had any possibility of interfering with the administrative formalities. As regards the price of the flat, the Court does not consider that a slight difference between the estimates made in 1968 and in 1996 (see paragraph 10 above) could be seen as a substantive unlawfulness (see, by contrast, the case of Wulpe in the Velikovi and Others judgment, cited above, § 204).", "Moreover, the Court sees no indication that the flat was obtained or the price determined through abuse. 27. In view of the nature of the irregularities that led to the nullification of the applicant’s title, the present case is similar to those of Bogdanovi and Tzilevi, examined in its Velikovi and Others judgment (cited above, §§ 220 and 224), where the Court held that in such cases the fair balance required by Article 1 of Protocol No. 1 could not be achieved without adequate compensation. 28.", "The applicant has not received any compensation. The Court notes, however, that she was not evicted from the property until August 2006 and that she was granted the tenancy of a municipal flat only a few months later, in November 2006. 29. Concerning the available compensation, the Court observes that in accordance with the relevant domestic law and practice (see paragraph 16 above), she was entitled to compensation in the form of bonds after January 2000. The applicant did not apply for bonds in due time and, as a result, she forwent the opportunity to obtain at least between 15% and 25% of the value of the flat, as that was the rate at which bonds were traded until the end of 2004 (see Velikovi and Others, cited above, §§ 226-228).", "The fact that bond prices rose at the end of 2004 or that the applicable law was amended in 2006 and provided for payment of the bonds at face value cannot lead to the conclusion that the authorities would have secured adequate compensation for the applicant. Indeed, the applicant could not have foreseen bond prices or legislative amendments and the Court cannot speculate whether she would have waited four or more years before cashing her bonds. Furthermore, the legislation on compensation changed frequently and was not foreseeable (ibid., §§ 191 and 226). 30. In these circumstances, the Court finds that no clear and foreseeable possibility of obtaining compensation was secured to the applicant.", "Her failure to use the bonds compensation scheme will have to be taken in consideration under Article 41, but cannot affect decisively the outcome of her complaint under Article 1 of Protocol No. 1. 31. In view of the above considerations, there has been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant claimed 120,000 euros (EUR) in respect of the current market value of the flat.", "However, she did not submit an expert report or any other document on the basis of which this estimate had been made. 34. The Government did not comment. 35. To determine the amount to be awarded, the Court observes that it stated above that the applicant’s failure to use the bonds compensation scheme would have to be taken into consideration under Article 41 of the Convention.", "It notes that had the applicant made use of that scheme, she could have obtained between 15% and 25% of the value of the flat. The Court considers therefore that it must apply an appropriate reduction of the just satisfaction award on account of the applicant’s failure to make use of the possibility to obtain partial compensation. It accepts that the reduction must be modest, having regard to the fact that the relevant legislation on compensation was subject to frequent amendments in contradictory directions and was thus unpredictable and generated legal uncertainty (see paragraph 29 above and Todorova and Others, cited above, § 46). 36. Having regard to the above considerations, all the circumstances of the case and the information at its disposal about the real-estate market in Varna, the Court awards the applicant EUR 48,000 in respect of pecuniary damage.", "B. Costs and expenses 37. The applicant did not submit a claim for cost and expenses. Accordingly, the Court considers that there is no call to award her any sum on that account. C. Default interest 38.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application 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 48,000 (forty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FOURTH SECTION CASE OF HANNU LEHTINEN v. FINLAND (Application no. 32993/02) JUDGMENT STRASBOURG 22 July 2008 FINAL 22/10/2008 This judgment may be subject to editorial revision. In the case of Hannu Lehtinen v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Giovanni Bonello,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 July 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32993/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Hannu Juhani Lehtinen (“the applicant”), on 4 September 2002.", "The applicant died on 30 September 2005. However, his widow, Mrs Terhi Johanna Lehtinen, and his children Ms Oona Liisa Kivimäki, Ms Essi Emelia Kivimäki and Ms Iisa Linnea Kivimäki expressed their wish to pursue the application. For practical reasons Mr Hannu Juhani Lehtinen will continue to be called “the applicant” in this judgment. 2. The applicant was represented by Mr O. Taurén, a lawyer practising in Helsinki.", "The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged a violation of Article 6 § 1 and 6 § 3 (d) of the Convention on account of the lack of an oral hearing and the refusal to hear his evidence and that of three witnesses. 4. On 21 May 2007 the President of the Fourth 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 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and was resident in Siltakylä at the time of his death. A.", "The tax inspection 6. At the material time the applicant was the majority owner of a limited liability company providing bakery and café services. The company is not an applicant before the Court. 7. In 1999 the Uusimaa Tax Office carried out a tax inspection of the company’s books for the years 1996-1998.", "The tax inspector interviewed the applicant and three persons who were working, or had worked, for the company: Mr T.L., Ms H.T. and Mr R.L. He drew up an inspection report dated 2 September 1999 and two inspection letters dated 6 September 1999. He found that there were deficiencies in the company’s book-keeping and that it had failed to enter as income part of the retail sales during the tax years 1996, 1997 and 1998. Basing himself on the company’s turnover, books and the remaining cash register printouts, he estimated the amounts at 140,000 Finnish marks (FIM), FIM 100,000 and FIM 130,000 respectively.", "He considered that the missing sales should be treated as disguised payments of dividends for the purposes of assessing the tax liability of both the company and the applicant and therefore the applicant’s estimated income should be increased by the above amounts. 8. The Tax Office requested the company to submit its observations regarding the alleged errors in its tax returns for the fiscal years 1996-1998. In its observations of 23 August 1999 the company contested the allegation that certain sales had not been entered in the books. On 24 September 1999 the company and the applicant submitted their joint observations maintaining that all sales had been entered in the books and that the applicant had not received any disguised payments of dividends.", "9. The decisions taken in respect of the applicant’s increased tax liability are mentioned below. B. The Uusimaa Tax Office and Tax Rectification Board’s decisions 10. On 10 and 22 November 1999 the Tax Office increased the applicant’s estimated income for the above-mentioned years by FIM 129,000, FIM 90,000 and FIM 130,000 respectively.", "Following a rectification of the applicant’s tax liability, the amount of the disguised payments of dividends was reduced to FIM 121,000 for 1998. Tax surcharges of FIM 5,000 and FIM 3,000 were imposed on the applicant for the years 1996 and 1997. 11. Following the applicant’s requests, the Tax Rectification Board, on 31 May and 20 July 2000, partly upheld his claims for reductions. It reduced the disguised payments of dividends to FIM 85,000, FIM 60,000 and FIM 85,000 for the tax years 1996 to 1998.", "It also reduced the amount of tax surcharges for the years 1996 and 1997 to FIM 4,000 and FIM 2,000 respectively. C. The proceedings in the Helsinki Administrative Court 12. The applicant appealed to the Administrative Court, requesting an oral hearing of his evidence and that of witnesses Mr T.L., Ms H.T. and Mr R.L. proving that the company had not made any sales that had not been entered as income and that the applicant had not received any benefits which could be considered disguised payments of dividends.", "13. The Tax Office obtained the observations of the Tax Ombudsman, the written statement of the Tax Office and the applicant’s observations in reply. 14. On 13 June 2001 the Administrative Court rejected the request for an oral hearing. It reasoned: “The Administrative Court considers that an oral hearing is manifestly unnecessary having regard to the evidence submitted to it and the nature of the case.", "The case can thus be decided without an oral hearing.” The court also rejected the appeal, giving the following reasons: “The amounts of money which the applicant is considered to have received by way of disguised payment of dividends On the basis of the circumstances observed during the tax inspection, not all the company’s sales have been entered in the books. In estimating the amount of the missing sales, the documents in the tax inspection file show that the Tax Office has already taken into consideration the company’s statement of errors entered in the cash register. In its decisions the Rectification Board partly upheld the company’s claims and reduced the estimated amounts of disguised payments of dividends accordingly. The applicant was the majority owner of [the company] and, up until 2 December 1998, Chairman of its Board. He worked for the company full time.", "He counted the contents of the cash register daily and was responsible for sending the money to the bank. In addition, he took care of the company’s purchases, payment of salaries and all money transactions. Therefore, and as there is no suggestion to the contrary, the sales which have not been entered in the books can be considered to have been used by the applicant for his own benefit. As the applicant, for reasons referred to in section 57 of the Taxation Procedure Act, has failed to declare part of the income for the tax years 1996 to 1998, which has consequently not been subject to taxation, the payment of the taxes not claimed has had to be ordered in a reassessment procedure. The increase in the applicant’s income by way of disguised payments of dividends to FIM 85,000, FIM 60,000 and FIM 85,000 respectively for the tax years 1996-1998 cannot be considered too high.", "As the applicant must be considered to have produced, knowingly or through gross negligence, false tax returns concerning the afore-mentioned years, tax surcharges have also had to be imposed. The tax surcharges concerning 1996 and 1997 cannot be considered excessive. There is no reason to alter the Rectification Board’s decision on the basis of the appeal.” D. The proceedings in the Supreme Administrative Court 15. On 9 August 2001 the applicant requested leave to appeal. Should the Supreme Administrative Court not find it possible to alter the decision, he requested that the case be sent back to the Administrative Court for an oral hearing.", "On 8 March 2002 the Supreme Administrative Court refused leave to appeal. It reasoned: “The applicant’s appeal concerns disguised payments of dividends added to his income by way of reassessment. There is no reason to bring the case before the Supreme Administrative Court in the interests of the application of the law in other similar cases or the uniformity of legal practice. Nor has there been any manifest error in the examination of the case. There are likewise no pressing economic reasons to grant leave to appeal.", "Since none of the grounds for granting leave to appeal laid down by section 70 of the Taxation Procedure Act applies, the Supreme Administrative Court refuses to grant leave to appeal and therefore will not rule on the applicant’s appeal.” II. RELEVANT DOMESTIC LAW AND PRACTICE 16. Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; as amended by Act no. 433/1999) provides that an oral hearing must be held if requested by a private party. An oral hearing may, however, be dispensed with if a party’s request is ruled inadmissible or immediately dismissed or if an oral hearing is clearly unnecessary due to the nature of the case or other circumstances.", "17. In this regard, the explanatory report of the Government Bill (no. 217/1995) for the enactment of the Administrative Judicial Procedure Act states that an oral hearing contributes to a focused and immediate procedure but since it does not always bring any added value it is important that the flexibility and cost effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as whole. 18.", "During the period from 2000 to 2006 the Supreme Administrative Court did not hold any oral hearings in tax matters. As to the eight administrative courts, appellants requested an oral hearing in a total of 603 cases. The courts held an oral hearing in 129 cases. There is no information about how many of these taxation cases concerned the imposition of a tax surcharge. During the first six months of 2006, the administrative courts held a total of 20 oral hearings in tax matters.", "19. Witnesses who have been called by a party or the administrative authority that made the decision or the hearing of whom the appellate body considers necessary may be heard in the oral hearing. A party may be heard under oath concerning circumstances of special relevance to the resolution of the matter. Chapter 17, sections 18-39, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) apply to the hearing of witnesses (section 39 of the Administrative Judicial Procedure Act as amended by Act no. 433/99).", "20. Testimony must be oral. A witness must not refer to a written statement. However, the witness may use written notes as a memory aid (Chapter 17, section 32(1)). A statement that a witness has previously given to the court or to the public prosecutor or the police may be read out in connection with the hearing of the witness only if, in his or her testimony, the witness retracts his or her earlier statement, or explains that he or she cannot or will not testify (section 32(2)).", "21. A written statement of a private nature, a pre-trial investigation record or a statement entered or stored in another document must not be admitted as evidence unless otherwise provided in an Act (Chapter 17, section 11(1), of the Code of Judicial Procedure; Act no. 690/1997). Section 11(2-3) lists exceptions to the prohibition on using written preliminary investigation material. For example, if a witness cannot be questioned in the main hearing or outside the main hearing, the court may allow the pre-trial investigation record or another document or statement to be taken into account in a hearing.", "The Administrative Judicial Procedure Act contains no restriction on the use of pre-trial investigation material in the consideration of a case. 22. The said Act provides that the statement of reasons must indicate which facts and evidence have affected the decision and on which legal grounds it is based (section 53). 23. Section 29 of the Taxation Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande; Act no.", "1558/1995 as in force for the fiscal years 1996-1998) included provisions on the distribution of disguised payments of dividends and provided that if it was evident that a partnership or some other corporation had paid a sum of money to a shareholder, to the spouse, a child, parent or another relative of a shareholder as a salary, gift salary, partial salary, housing benefit, representation or travel expenses, insurance fee, or a comparable credit considered more than reasonable or if the corporation had paid any one of the persons cited a sum of money as a purchase price, rent, interest, provision or some other expense that was essentially higher or had him or her pay less than the norm, a reasonable tax was imposed on the sum. If a partnership, by buying its shares or by decreasing the value of its share capital, had distributed assets to its shareholders and if it was evident that the distribution of the assets had been carried out for the purpose of evading tax on dividends, the assets distributed were to be regarded in this respect as taxable income to the taxpayer. 24. Section 32(1) (as in force at the relevant time) provided that if there was a minor deficiency or error in the tax return or some other piece of information or document, and the taxpayer failed to comply with a verifiably sent request to correct the error or if the taxpayer submitted the tax return, piece of information or document too late without proper justification, a maximum tax surcharge of EUR 168.19 could be imposed on the taxpayer. Section 32(2) provided that if a taxpayer submitted a tax return or some other piece of information or document with essential deficiencies or errors or did not submit them until he or she had received a verifiably sent request, a maximum tax surcharge of EUR 840.94 could be imposed on the taxpayer.", "Section 32(3) provided that if a taxpayer knowingly or through gross negligence submitted an essentially erroneous tax return or some other piece of information or document or did not submit a tax return at all, a tax surcharge of 5 to 30 per cent on the added income and 0.5 to 1 per cent of added assets would be imposed, to a maximum of EUR 840.94, unless there were special reasons not to do so. Such a tax surcharge was also imposed when a taxpayer declared income incorrectly, whether knowingly or through gross negligence. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 25. The applicant complained about the refusal of the Administrative Court to hold an oral hearing and to hear testimony from the applicant and three witnesses proposed by him.", "Article 6 § 1 and 6 § 3 (d) of the Convention, in their relevant parts, read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (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 contested that argument. They conceded, however, that Article 6 under its criminal head was applicable to the tax surcharge proceedings.", "A. Admissibility 27. The Court notes at the outset that the applicant died on 30 September 2005, after having lodged his application under Article 34 of the Convention. It points out that in various cases in which an applicant has died during the course of Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close members of his family expressing their wish to pursue the application (see, inter alia, Kalló v. Hungary, no. 30081/02, § 24, 11 April 2006). The Court considers that the applicant’s heirs, who have stated their intention to continue the proceedings, have a legitimate interest in obtaining a finding of a breach of the applicant’s rights guaranteed by Article 6 § 1 and 6 § 3 (d) of the Convention (see, mutatis mutandis, Dalban v. Romania [GC], no.", "28114/95, §§ 1 and 39, ECHR 1999‑VI). 28. Accordingly, the Court finds that the applicant’s heirs have standing to continue the present proceedings. 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions The applicant 30.", "The applicant submitted that, following the tax inspection carried out in his company, additional tax and tax surcharges were imposed as it was claimed that he had produced false tax returns. He was considered to have received disguised dividends, which meant that he was considered guilty of tax fraud and false accounting under the Penal Code. The proceedings had concerned these matters. Before the courts, the case had been open for review as to the facts and had turned on the applicant’s credibility. Therefore an oral hearing would have been necessary.", "The purpose of hearing the witnesses proposed was to prove that the company had not failed to enter any sales in the books, that the applicant had not gained any benefit which could have been considered tantamount to disguised payments of dividend, that he had not produced false tax returns and was not guilty of tax fraud and false accounting. The Administrative Court’s decision had not examined these issues. The applicant had been denied the opportunity to have his witnesses heard and present his crucial evidence. 31. It was true that Mr T.L., Ms H.T.", "and Mr R.L.’s written statements had been on the file but the problem was that the Administrative Court had completely ignored this evidence. The applicant rejected the Government’s submission that the courts could use the written statements of the above-mentioned witnesses as evidence without hearing their testimony. He referred to section 39 of the Administrative Judicial Procedure Act which provided that a person might be called as a witness by a party, by the administrative authority who had delivered the decision or by the appellate body if necessary. If a written witness statement of a private nature was referred to in evidence, the witness had to be heard orally unless it was unnecessary or there was a special impediment. According to the applicant, this meant that if a witness was not heard orally in the Administrative Court, the court would not attach any importance or relevance to a written statement of a private nature by that person.", "On the other hand, Chapter 17, section 11, of the Code of Judicial Procedure explicitly prohibited the use of such a written statement, if the court did not allow it for some special reason, which in practice was exceptional. 32. The applicant argued that the present case greatly differed from the facts of the case of Jussila v. Finland ([GC], no. 73053/01). In the present case, the question was whether the applicant had produced, knowingly or through gross negligence, false tax returns and thereby committed offences, that is, the issue was what had really happened concerning the sales in the small bakery and café.", "This would not simply have constituted “additional information” but would have been crucial and decisive information for the whole case. 33. At the time of giving their written statements, Mr T.L. and Ms H.T. no longer worked for the applicant’s company.", "They had been questioned by the police in March 2003, repeating their written statements, submitted to the Administrative Court, which proved that the reassessment and tax surcharges were unfounded and that the applicant had not produced false tax returns and consequently not committed any offence. If this evidence had been taken into account, the court would not have reached the same conclusion. An oral hearing in the Administrative Court would have been absolutely necessary. 34. The fact that the applicant had had the opportunity to put forward his case in writing and comment on the submissions of the tax authority did not make any difference to the crucial procedural shortcoming.", "The Government 35. The Government submitted that the sanction imposed on the applicant was a consequence of a tax inspection carried out in the company and the tax penalties imposed on it. These matters made up an interconnected whole. The appreciation of the need for an oral hearing seemed, therefore, to be more important for the case of the company. 36.", "Comparing the case of Jussila v. Finland (cited above) to the present case, it was clear that the aim of hearing witness evidence would have been to prove that the taxation had been carried out on incorrect grounds. Another common denominator in these cases was the claim that the book-keeping could not be considered erroneous. What was different in the present case was the higher amount of the tax surcharges and the fact that the applicant had not strived to have the opposing party heard, but to have persons examined who came from his own operational environment and sphere of influence. The written statements by Mr T.L., Ms H.T. and Mr R.L.", "had been in the file, and the Administrative Judicial Procedure Act included no provision preventing their use as a basis for examination. In the circumstances of the case, the legal presumption of the benefits gained from sales off the books being turned into disguised dividends did not require an oral hearing either, considering in particular the facts which would have been examined by hearing witnesses. 37. The Government emphasised that, although the applicant had not been afforded an oral hearing, he had had an opportunity, which he had used, to provide replies to and comments on all memoranda and written statements by the tax authorities throughout the proceedings. There was nothing to indicate that questions of fact or law would have emerged which could not have been adequately resolved on the basis of the case file and the written observations by the applicant.", "No additional information could have been gathered by hearing evidence from the applicant or the witnesses proposed. 38. As to the applicant’s argument that if witnesses were not heard orally in the Administrative Court the court did not attach any relevance to written statements, the Government noted that, under the Government Bill on the Administrative Judicial Procedure Act (HE 217/1995 vp, p. 68) the regulation mentioned would not change the current situation in a decisive manner. It states: “Its essential significance would be in obliging the judicial authority to assess in all cases whether there are grounds for omitting an oral hearing when written testimony is invoked. Thus, it would not be possible to take account of written testimony without such an assessment”.", "According to the Government, the last sentence did not mean that the testimony was not taken into account; it meant that the need to arrange an oral hearing must first be assessed separately. The testimony always had the same evidentiary value, even when an oral hearing was omitted in this context. 39. As to the applicant’s reference to the witnesses’ statements given to the police in 2003, these could not have influenced the matter before the administrative courts since leave to appeal had been refused in 2002. 2.", "The Court’s assessment 40. Article 6 is applicable under its criminal head to tax surcharge proceedings (see Jussila v. Finland, § 38). Regarding the parties’ differing views on the role or impact of the taxation procedure as regards criminal proceedings, the Court notes that under Finnish practice the imposition of a tax surcharge does not prevent criminal charges being brought for the same conduct. That is, however, done in separate proceedings before a criminal court. 41.", "As to the right to an oral hearing, the applicable principles are outlined in the judgment in the case of Jussila v. Finland (§§ 40-45). The Court does not doubt that checking and ensuring that the taxpayer has given an accurate account of his or her affairs and that supporting documents have been properly produced may often be more efficiently dealt with in writing than in oral argument (see Jussila v. Finland, § 47). 42. In the present case the applicant requested an oral hearing of his evidence and that of the witnesses Mr T.L., Ms H.T. and Mr R.L.", "43. This case can be distinguished from the case of Jussila in which Mr Jussila’s purpose in requesting a hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and obtaining supporting testimony from his own expert since, in his view, the tax inspector had misinterpreted the requirements laid down by the relevant legislation and given an inaccurate account of his financial position. The reasons for requesting a hearing in the case of Jussila therefore concerned in large part the validity of the tax assessment, which as such fell outside the scope of Article 6, although there was the additional question of whether the applicant’s book-keeping had been so deficient as to justify a surcharge. The Administrative Court, which took the measure of inviting written observations from the tax inspector and a statement from an expert chosen by the applicant, found in the circumstances that an oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case. For those reasons, the Court in the Jussila case found that the lack of an oral hearing did not give rise to a breach of Article 6.", "44. In its decision of 13 June 2001 the Administrative Court rejected the present applicant’s request for an oral hearing, finding that this was manifestly unnecessary considering the evidence already submitted and the nature of the case. 45. The applicant argued that there were issues of credibility which required oral presentation of evidence to prove that the company had not failed to enter any sales in the books and that he had not received any benefits from the company that could be regarded as disguised dividends. 46.", "The Court will therefore examine whether the protection of the applicant’s interests required the holding of an oral hearing before the Administrative Court. 47. The Court observes that, pursuant to section 38(1) of the Administrative Judicial Procedure Act, an oral hearing must be held if requested by a private party. An oral hearing may, however, be dispensed with if a party’s request is ruled inadmissible or immediately dismissed or if an oral hearing is clearly unnecessary due to the nature of the case or other circumstances. The explanatory report of the relevant Government Bill states that an oral hearing contributes to a focused and immediate procedure, but since it does not always bring any added value, it is important that the flexibility and cost effectiveness of the administrative proceedings are not undermined.", "An oral hearing is to be held when necessary for the clarification of the issues and the hearing can be considered beneficial for the case as whole. 48. In the present case the Administrative Court was called upon to examine the case as regards both the facts and the law. The applicant disputed the facts upon which the imposition of tax surcharges was founded, requesting an oral hearing of witness evidence in order to elucidate the relevant events. The Administrative Court had to make a full assessment of the case.", "The crucial question concerned the clarification of facts and the credibility of the statements of the applicant and the three witnesses who had been working for the company. Nevertheless, the Administrative Court decided, without a public hearing, to uphold the decision. The Court finds that, in the circumstances of the present case, the question of the credibility of the written statements could not, as a matter of fair trial, have been properly determined without a direct assessment of the evidence given in person by the applicant and by the witnesses proposed. 49. There has accordingly been a violation of Article 6 § 1 of the Convention as regards the refusal to hold an oral hearing in the Administrative Court.", "50. In view of the Administrative Court’s firm conclusion that an oral hearing could be dispensed with, the Court considers that it is not necessary to examine separately whether the rights of the defence were violated by reason of the court’s refusal to hear oral evidence. 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. Under the head of pecuniary damage the applicant claimed 30,657.12 euros (EUR) for the taxes and tax surcharges which he had been ordered to pay, plus 11 per cent interest from the date of payment (11 December 2000). The applicant considered that there was a clear causal link between the damage and the alleged violation. 53. Under the head of non-pecuniary damage he claimed EUR 100,000 for suffering and distress.", "It could not be ruled out that the unfair and wrong treatment which the applicant had received in this matter from the Finnish authorities and throughout the Finnish legal system had been a contributing factor to his fatal illness (cancer). The criminal investigation had lasted for several years from 21 December 1999 and the criminal court proceedings had not even begun when the applicant died on 30 September 2005. These delayed proceedings were in violation of Article 6 of the Convention. In consequence, the applicant had not been able to return to working life or run any business activity. Because of unfounded taxation, the applicant had lost all his small assets.", "The Court should make a higher award than usual. 54. The Government argued that there was no direct causal link between the pecuniary damage and the alleged violation. Accordingly, no compensation for pecuniary damage should be awarded. 55.", "The Government submitted that the present application did not concern the length of proceedings and that any reference to a lengthy pre-trial investigation as a basis for damage could not therefore be considered. The award should not exceed EUR 4,000. 56. The Court cannot speculate about the outcome of the proceedings had they been in conformity with Article 6. The Court has found a violation of the applicant’s right to a fair trial but finds no sufficient causal link between that violation and any pecuniary damage.", "This claim must therefore be rejected. 57. As to non-pecuniary damage, the Court notes that the application does not concern the length of proceedings and that therefore no award can be made in this regard. The Court has found that the applicant’s close heirs may claim compensation for non-pecuniary damage (see, inter alia, Ernestina Zullo v. Italy [GC], no. 64897/01, § 149, 29 March 2006).", "The Court accepts that the lack of guarantees of a fair trial has caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the applicant EUR 3,000. B. Costs and expenses 58. The applicant claimed EUR 9,151.44 (inclusive of value-added tax) plus 11 per cent interest from 8 September 2002 for the costs and expenses incurred before the domestic courts and EUR 8,052 (inclusive of VAT) for those incurred before the Court, plus 11 per cent interest to accrue 30 days after delivery of the judgment.", "59. The Government submitted that, in the national proceedings, the costs and expenses which related to the present complaint, namely those concerning the request for an oral hearing, may amount to a maximum of EUR 2,000 (including VAT). As to costs and expenses before the Court, they considered the claim somewhat high taking into consideration that there was only one complaint to deal with. Accordingly, in the Government’s view, EUR 7,000 (including VAT) was reasonable for these costs and expenses. 60.", "The Court reiterates that an award under this head may be made only in so far as the costs and expenses were actually and necessarily incurred in order to avoid, or obtain redress for, the violation found (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). 61. In the present case, regard being had to the information in its possession and the above criteria, the Court awards EUR 3,000 (inclusive of VAT) for the domestic proceedings. As to the Strasbourg proceedings, the Court notes that the application was examined under the joint procedure provided for under Article 29 § 3 of the Convention. It considers it reasonable to award the applicant the sum of EUR 5,000 (inclusive of VAT) for the proceedings before the Court.", "C. Default interest 62. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the refusal to hold an oral hearing in the Administrative Court; 3.", "Holds that it is not necessary to examine separately the applicant’s complaint under 6 § 3 (d) of the Convention; 4. 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 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 8,000 (eight thousand euros), plus any tax that may be chargeable to the applicant’s heirs, 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 22 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLech GarlickiDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MANNINEN v. FINLAND (Application no. 28631/05) JUDGMENT STRASBOURG 14 April 2009 FINAL 14/07/2009 This judgment may be subject to editorial revision. In the case of Manninen v. Finland, 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 24 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28631/05) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Rainer Kaarlo Tapio Manninen (“the applicant”), on 8 August 2005.", "2. The applicant was represented by Mr V. Lehtevä, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. On 4 June 2008 the President of the Fourth Section decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). 4. The applicant and the Government each filed further written observations (Rule 59 § 1). THE FACTS 5. The applicant was born in 1944 and lives in Helsinki.", "6. The applicant purchased a company in September 1995. The company was wound-up on its own initiative in March 1996. A criminal investigation was started in regard to the financial activities of the company in February 1997 and the applicant was questioned by the police for the first time on 21 April 1997. He was, together with two other persons, suspected of aggravated debtor’s dishonesty and false accounting in 1995 and 1996.", "7. The pre-trial investigation was finalised on 26 November 1997. On 27 March 1998 the prosecutor waived prosecution due to insufficient evidence. 8. On 22 April 1998 the bankruptcy estate requested the State prosecutor to examine the previous decision not to prosecute.", "On 23 December 1998 the deputy State prosecutor requested the police to conduct an additional investigation without delay due to the time that had already passed since the beginning of the investigation. On 23 December 1999, the local prosecutor was ordered to bring charges against all the suspects. An additional investigation was requested. The last investigation was concluded on 13 January 2000. 9.", "The charges were brought against the applicant and the other defendants on 16 February 2000. The District Court (käräjäoikeus, tingsrätten) dismissed all the charges on 1 March 2002. 10. Following the prosecutor’s appeal and after a two-day oral hearing, the Court of Appeal (hovioikeus, hovrätten) convicted the applicant on 18 June 2004. He was sentenced to five months’ imprisonment.", "The sentence was amended for reasons of equity in view of two previous prison sentences dating from 2002 and 2004. 11. In his appeal to the Supreme Court the applicant raised the issue of the excessive length of the proceedings. The Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal on 8 February 2005. II.", "RELEVANT DOMESTIC LAW 12. Chapter 6, Article 7, point 3, of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. 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...” 14.", "The Government contested that argument. 15. 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 the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "16. The period to be taken into consideration began on 21 April 1997 when the applicant was heard by the police for the first time in the course of the investigation and ended on 8 February 2005 when the Supreme Court refused leave to appeal. It thus lasted some seven years and ten months for three levels of jurisdiction. 17. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 18. The Government pointed out that the case was complex since it concerned economic crime. It involved three defendants, three consecutive pre-trial investigations, several witnesses and a considerable number of documents produced in evidence. However, the Government conceded that the proceedings before the Court of Appeal had taken more than the average time, maintaining at the same time that the overall length was still reasonable in the applicant’s case.", "19. The Court observes that the investigation stage and the preparation of the charges lasted some two years and ten months and the proceedings before the District Court two years and one month. The Court of Appeal gave its judgment about two years and four months after the District Court’s judgment and the proceedings came to an end less than eight months later, when the Supreme Court refused leave to appeal. 20. The Court further observes that there is no indication that the applicant contributed to the length of the proceedings at any stage.", "21. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 22. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 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.", "23. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 24. The applicant further complained that he did not have an effective remedy against the excessive length of the proceedings.", "He relied on Article 13 of the Convention. 25. 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.” 26. The Government contested that argument. 27.", "The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. 28. The Government argued that the applicant did not raise the length issue until his appeal to the Supreme Court.", "The possibility to mitigate a sentence due to the lapse of a considerably lengthy period since the commission of the offence was available to him under Chapter 6, section 7 of the Penal Code already at the stage of the proceedings before the Court Appeal. According to the Government, this remedy fulfilled the requirements of Article 13 of the Convention and by actually invoking the issue before the Supreme Court the applicant had accepted the availability of an effective remedy. 29. The applicant contested that argument and noted that only at the last stage of the proceedings – in his appeal to the Supreme Court – could he look back and assess the length of the proceedings in total. Furthermore, the applicant did not consider the aforesaid remedy effective.", "30. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI, Kangasluoma v. Finland, no.", "48339/99, § 46, 20 January 2004, Cocchiarella v. Italy [GC], no. 64886/01, § 74-79, ECHR 2006‑...). 31. The Court notes that the provisions on sentencing in Chapter 6 of the Penal Code have been amended with effect from 1 January 2004, so that the lapse of a considerably lengthy period since the commission of the offence may be taken into consideration as a mitigating factor which may result in the reduction of the sentence imposed. 32.", "The Court notes that the applicant complained about the length of the proceedings in his appeal to the Supreme Court. However, no leave to appeal was granted. The Court can accept that had the Supreme Court upheld the applicant’s complaint and reduced his sentence in a manner which provided express and quantifiable redress for the breach of the reasonable time requirement, an issue might arise as to the applicant’s victim status (see, for example Beck v. Norway, no. 26390/95, §§ 27-29, 26 June 2001 and Uoti v. Finland (just satisfaction), no. 61222/00, § 14, 13 January 2009).", "However, the Court is not persuaded that the domestic law provisions relied on by the Government constitute an effective remedy within the meaning of Article 13 of the Convention. It notes that the provisions do not address the situation of an applicant who is ultimately acquitted of an offence. Moreover, an applicant is left in a state of uncertainty as to the time of application of the provisions given that he must await the stage of sentencing before any consideration can be given to reducing the length of the sentence in the light of the length of the criminal proceedings. 33. Furthermore, under Finnish law, an applicant at no stage of the proceedings is able to request a domestic court to expedite the conduct of the proceedings or to file a claim for compensation either during their course or following their termination (see, for example, Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 186, ECHR 2006‑... ). 34. Consequently, since the Government have not shown that any form of relief – either preventive or compensatory – was available to the applicant, there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to a hearing within a reasonable time as guaranteed by Article 6 § 1 of the Convention (see Kangasluoma v. Finland, no. 48339/99, §§48-49, 20 January 2004).", "III. REMAINDER OF THE APPLICATION 35. The applicant claimed under Article 8 of the Convention that his prison sentence had interrupted his family life and prevented him from taking care of his sick wife. He further claimed that his unconditional prison sentence in the current case meant that he also had had to serve two-thirds of his other two sentences and this had resulted in increased time in prison. 36.", "Having regard to the case-file, the Court finds that the matters complained of do not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 38.", "The applicant claimed 50,000 euros (EUR) with interest from the beginning of the proceedings in respect of non-pecuniary damage for mental and physical suffering. 39. The Government considered the applicant’s claims excessive as to quantum. However, should the Court find a violation of Article 6 § 1 and/or 13 of the Convention, the Government conceded that the applicant should be awarded compensation which should not exceed EUR 3,500. 40.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head. 41. The applicant did not submit a claim for costs and expenses. C. Default interest 42.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the criminal proceedings and lack of an effective remedy in this connection admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF HUOHVANAINEN v. FINLAND (Application no. 57389/00) JUDGMENT STRASBOURG 13 March 2007 FINAL 24/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Huohvanainen v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM.", "Pellonpää,MrR. Maruste,MrK. Traja,MsL. Mijović,MrJ. Šikuta, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 20 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57389/00) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Kauko Huohvanainen (“the applicant”), on 8 May 2000. 2. The applicant was represented by Mr H. Salo, a lawyer practising in Helsinki.", "The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged that the facts of the case disclosed a violation of his brother's right to life under Article 2 of the Convention. 4. By a decision of 14 March 2006, the Court declared the application partly admissible.", "Judge Pellonpää, who at the time of the decision sat in respect of Finland, continued to participate in the examination of the case (Article 23 § 7 of the Convention). 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 1964 and lives in Liperi. A. Background 7. On 2 December 1994 the applicant's 27-year-old brother J. was shot dead at six metres' range by the police following a two-day siege.", "The following events led up to the shooting: 8. On the evening of Wednesday 30 November 1994 J. threatened a taxi driver with a gun, forcing him to abandon his car. J. pointed his gun, which had a silencer on it, at the driver's chest and then pushed it against his abdomen with force causing loss of breath. While on the ground the driver was forced to put his hands up and his clothes were searched. He was then ordered to lie on the ground face down.", "When he tried to look up, J. held the gun to the back of his head and said “if you move, you know what this gun will do”. Finally, J. let the taxi driver go having taken a torch from the car. 9. Later that night, J. shut himself in his rented house on the island of Ängeslandet in the municipality of Kirkkonummi. He did not take any hostages.", "The island was subsequently evacuated. B. The scene of the events 10. According to the Government, the island comprises several hundred hectares of woods with several inhabited houses. It was sealed off from the mainland by the police.", "The area of the siege was not illuminated by lights other than those coming from J. 's house. There was daylight between 8 a.m. and 4 p.m. At night, there was no moonlight due to cloud. There was not enough snow, either, to provide enhanced visibility. In fact, the greater part of the operation was conducted in darkness.", "The temperature was around zero. 11. There were two bridges to the mainland. The island could also be left by boat or by walking in the shallow water or on the ice which covered some of the water. The house stood near the water and had doors and windows on all sides.", "The ground was uneven and covered with rocks, tree trunks and densely growing bushes. The surrounding area did not provide the police officers with cover. Some of them had visual cover only. 12. According to the applicant, the Government deliberately described the scene of the events as more difficult than it actually was.", "The location of the house was secluded. The trees surrounding it had been cut down by two armoured vehicles at the scene. There was no direct access to the woods from the bedroom door in the north-eastern part of the house. 13. According to the Government, a total of 50-60 police officers took part in the police operation.", "According to the applicant, more than 100 police officers and other officials participated in the two-day siege. C. The events leading up to and including the shooting of J. 1. The first day 14. The house was surrounded by the police.", "During the night and in the early hours of Thursday 1 December 1994 the police gathered information from various sources. Having learnt that J. had been convicted of criminal activities, they contacted the police in his former home town. The police at the scene were informed that he had previously been involved in an armed siege, that he had been admitted to a psychiatric institution and that he was considered to be especially hostile towards the police. The police also contacted the psychiatric institution where J. had received treatment and were informed that it would be very difficult to conduct negotiations with J., who was extremely impulsive, paranoid, aggressive and incapable of co-operating. In order to draw up a profile of J., further information was received from two psychiatrists and one psychologist, from police officers who had been involved in J.", "'s previous siege and from his family and acquaintances. 15. At the beginning of the operation the instructions regarding the use of force were first to apprehend J. by issuing instructions to him, to refrain from using weapons and to act within the limits of self-defence: 1. In a self-defence situation each police officer decides for him or herself on the use of force. 2.", "If the suspect comes out without a gun, he shall be issued with instructions and be apprehended using a police dog if necessary. 3. If the suspect comes out with a gun, he shall first be given instructions and if possible the police dog shall be used. If he approaches carrying a gun, shots may be aimed at his legs as a last resort. The suspect must not be allowed to exit the cordoned area.", "16. The border guard provided assistance in the form of a patrol boat and a helicopter. Units from the fire department were at the scene and an air ambulance was initially on stand-by and was moved closer at a later stage. 17. The police acquired the construction plan of the house but as a search at night would have been too risky it was postponed until the morning.", "At first light, the police started to approach the house in a line. A police dog and handler were on duty but when J. was spotted in the woods, armed, they were too far away to act and they lost sight of him. After J. had been sighted around and in the house and the situation had escalated, the search plan was abandoned altogether. 18. The police tried several times to contact J. by telephone, without success.", "From around noon a psychologist from the Police Academy was present to assist in the negotiations. However, no telephone calls were successfully put through. 19. Due to the lack of appropriate maps, the difficult surroundings and the safety hazards facing the police officers, the search was continued using a helicopter, which later spotted J. near the house. Following the sighting, the police moved closer to the house.", "The proper siege began at around noon. At that time there were 32 police officers present. 20. At about 2 p.m. the officer in charge at the scene, Superintendent T., requested the Ministry of the Interior to authorise the use of the Special Police Task Force. The request was granted and 23 specially trained police officers joined the police at the scene under the instruction of their commander, Superintendent H. Upon arrival, H. was informed by Superintendent T. of the instructions on the use of force.", "21. The police moved closer to the building to establish direct contact with J., whereupon he fired shots in the air. Additional shots were fired by J. during the day some of which at the police officers at the scene. In addition to attempts to make direct contact, the negotiators tried repeatedly to reach J. by telephone, by leaving messages on his answering machine and by sending faxes. During the afternoon and early evening three short phone calls were successfully put through.", "However, J. refused to negotiate. At around 4 p.m. he said “many will go with me once I come out” and “I will count to ten and there will be nobody in the bushes”, whereupon he exited the house and shot in the air repeatedly. At 4.10 p.m. he stated “I will teach [you] a third and final lesson”. At 4.46 p.m. J. called the negotiator to say that he had fired his gun “because he did not know who [they] were”. 22.", "Around that time J. 's brother O. arrived at the scene. He informed the police that J. owned a 22 calibre small-bore rifle and a very heavy 45-70 calibre sporting gun. J. was also said to be an excellent shot, having practised shooting as a hobby. J. could not however be reached by telephone at the time.", "23. At the scene, the police spotted J. carrying two long-barrelled weapons. The operation was scaled up, with enhanced security measures put in place to protect the police officers and any other persons in the area. At 9.15 p.m. O. called to inform that J. had called him and promised to let him into the house at dawn. During the evening and night J. was heard moving around outside in the darkness.", "The police had several lights trained on the house, but J. shot them all. At around 10 p.m. J. fired several shots in the air and at the police. The helicopter, which was training a searchlight on the house, was hit by J. 's small-bore rifle and had to perform an emergency landing in a nearby field. At around 11 p.m. J. shouted something at the police about a blasting operation, which made them suspect that he might also have explosives in his possession.", "24. The closest Special Task Force hideout was located about 15 metres from the house at the edge of the woods. The police considered it impossible to surround the house from farther away without losing sight of it. Moving the operation further away from the house would have enabled J. to move around and possibly to enter other houses. 2.", "The second day 25. In the early hours of Friday 2 December 1994 the police used audible flares to locate J. and keep him indoors, from where he fired repeatedly through the windows and the skylight. He aimed some of the shots at the police. At 2.27 a.m. there were about 50 police officers on the island. At around 7 a.m. a police officer, S.K., from J.", "'s former home town (situated over 500 kilometres from the scene of the events) telephoned to inform that J. had called him. At about that time, J. was shooting around him. At 9 a.m. the negotiators managed to make contact with J., who demanded a written assurance that he would not be committed to a psychiatric institution. The request was refused. At 10 a.m. S.K.", "called J. At 11 a.m. the afore-mentioned psychologist arrived at the scene. At noon J. called S.K. The police's subsequent attempts to make contact failed. 26.", "The senior police officers assessed the situation in the light of the following incidents which had taken place during the previous night and during the morning. J. had shot at the police over a hundred times, having an excellent shooting position from the roof, which was accessible to him from the skylight. After the operation 14 bullet holes were found in a 15 x 20 cm-sized searchlight situated next to a police hideout. The rock providing cover to the command centre also had dozens of bullet marks on it. The police officers' gear did not give them adequate protection.", "The police officers' attempts to remain as invisible to J. as possible, the attempts at negotiation and the cutting-off of the telephone lines by the police to allow a night's rest, did not have any effect on J. 's behaviour. The police considered it too dangerous to allow the situation to continue another night, as J. was able to leave the house undetected when it was dark. 27. The senior police officers had lengthy discussions on whether to abandon the siege.", "However, they decided that public order and safety could not be guaranteed if the operation was abandoned. The use of a police dog was rejected as too risky, since the dog could not operate without the handler and there was no cover for the dog handler near the house. After weighing up the different possibilities, the officer in overall charge obtained executive assistance from the defence forces in the form of two armoured personnel carriers (nos. 31 and 51) with drivers. It had also been suggested by a psychologist at the aforementioned psychiatric institution that “a show of strength in the form of military force and vehicles might allow J. to retreat honourably”.", "The armoured vehicles also allowed closer monitoring of the house and made possible the use of tear gas and, if necessary, the evacuation of injured persons. 28. Around noon, when repeated negotiation attempts had failed, the officer in charge at the scene, Superintendent T., ordered the use of tear gas to break J. 's resistance. The order was carried out from armoured vehicle no.", "51. The gas had no visible effect on J. As his whereabouts in the house were unknown, Superintendent T. ordered the window panes and curtains to be removed some two hours later in order to prevent surprise attacks. Armoured vehicle no. 51 remained at the corner of the green and yellow sides, 5.8 metres from the bedroom door, with a view to observing and effecting an arrest.", "Shortly after the removal of the window panes J. was spotted on the roof. 29. During the day the police tried repeatedly to reach J. by telephone. However, he did not answer their calls. When it got dark, the searchlights were switched on, whereupon J. fired his gun.", "At around 4 p.m. J. 's brother O. arrived at the scene but it was considered too dangerous to let him approach the house. The same considerations applied to having the afore-mentioned police officer S.K., who arrived at the scene at 6.20 p.m., approach the house. Meanwhile, at around 5 p.m. the police used a megaphone to make contact with J., without success.", "30. At about 6 p.m. J. fired shots towards the armoured vehicles and the border guard boat apparently with a view to shooting the searchlights. In addition, he threw a gas canister and at least two “Molotov cocktails”. At the same time it appears that J. set the house on fire. J. was seen walking around inside carrying a rucksack and breaking glass and furniture in an uncontrolled manner.", "The police estimated that the situation had become more dangerous and more difficult as it seemed that J. was planning an escape. His conduct was becoming increasingly hostile and self-destructive. His life was deemed to be in danger from the fire. 31. At that point, abandoning the operation was not an option owing to the serious threat posed by J.", "The use of a dog was impossible under the circumstances, as was the sending of an action team into the burning house. It was decided that the only possible way to stop and apprehend J. in the dark and smoke-filled conditions before he could escape was to order a police officer to shoot with a shotgun aimed at J. 's leg, although shooting was considered extreme and a last resort. 32. At 6.26 p.m. flares were used to have the scene lit.", "The Special Task Force commander, Superintendent H., and the officer in charge at the scene, Superintendent T., decided that J. should be shot at, on the firm understanding that he be hit only in the leg. The goal of the shooting operation was to rescue J. from the burning building without endangering the other persons at the scene. Senior Constable T.L. was assigned the task of firing the shot. The manner in which he carried out the order was left to his discretion.", "He chose a shotgun in order to cause as little injury as possible. According to the Government, the shotgun was chosen also in order to minimise the danger to the police officers and rescue personnel on the opposite side of the house. The officer in overall charge, Provincial Chief Inspector K.A., authorised the change of instructions on the use of force at 6.31 p.m., whereupon T.L. fired one 9 x 9 millimetre lead shot through the porthole of armoured vehicle no. 31 at 18 metres' range.", "J. was hit in the right hand and the upper part of the right thigh. J. was issued with instructions to surrender. 33. The shot had no visible effect on J., who continued to throw objects into the fire and to move around inside the house. No further shooting was authorised since it had proved ineffective.", "According to the subsequent indictment, J. did not fire his gun after he had been hit. 34. By 6.56 p.m. the house was ablaze. Thirty seconds later the Special Task Force commander, Superintendent H., estimated that J. would exit the house within two minutes if he intended to come out at all before its expected collapse. Due to the noise of the fire no further contact with J. was possible.", "The police expected him to leave the house either through the bedroom window from which the glass had been removed or through the bedroom door. According to the subsequent indictment, the only way out had been the lower part of the door on the so-called green side of the house. 35. At about 7 p.m. J. broke the glass on the lower part of the bedroom door and cleared the frame of shattered glass with his weapon. He started to crawl out through the opening, which was about 80 centimetres high.", "He was carrying two weapons. At that point he was hit by two shots fired simultaneously by Senior Constables A. and L., from armoured vehicle no. 51 at six metres' range. Both shots were aimed at J. 's shoulder and arm, but owing to his position, the firing angle through the porthole of the armoured vehicle and the short time available, he was hit in the head.", "36. According to the Government, in the final stage of the siege there had been a total of 19 police officers surrounding the building. Out of these, seven officers were inside the armoured vehicles. According to the applicant, the total number had been greater. 37.", "The prompt resuscitation efforts at the scene were unsuccessful and J. died at 7.35 p.m. The site was sealed off and an investigation was started immediately. D. The investigation 38. During the siege a log was kept of the decisions made and actions taken. Due to the geographical conditions not all the radio conversations were recorded on tape, but the later part of the siege was recorded on audio tape and the use of tear gas was also recorded on video tape.", "Although the area was sealed off for the crime-scene investigation, some evidence may have been destroyed when the fire was extinguished. Despite this, it was possible to collect details of the bullet holes in and around the building. The investigation, which started immediately, was carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which is one of the national units of the Finnish Police. The National Bureau of Investigation specialises in investigating and preventing serious, organised and international crime. At the national level, it is responsible for criminal intelligence and identification of new types of crime.", "The National Bureau of Investigation also develops criminal-investigation techniques and provides training in the aforementioned subjects. On 2 December 1994 the investigation into the cause of J. 's death began. 39. At the particular request of J.", "'s family, certain additional lines of inquiry were followed during the pre-trial investigation. The autopsy report and the results of all the forensic and other investigations, as well as the reports on the siege, were included in the pre-trial documentation, together with a large number of witness statements. 40. Having received the investigation report concerning the cause of death, the National Bureau of Investigation, on 8 February 1995, began to investigate whether anyone involved in the siege had acted in an unlawful manner. 41.", "In 1995 the decisions made and the actions taken during the operation were studied by a permanent investigation team set up by the Ministry of the Interior. The tasks of the team include investigation of the tactics, plans and actions of particularly dangerous police operations. Occupational safety requirements are considered and improvements suggested where necessary. In addition, the team has an educational role, creating educational material for police forces and giving advice on future operations where appropriate. 42.", "The investigation team studied the operation in question hour by hour, drew conclusions and made recommendations on the basis of the investigation. The team drew attention in particular to the inadequacies of the police officers' protective equipment and stressed the importance of improving their occupational safety in future operations. The report was finalised within one year of the operation in question. E. Press releases 43. Meanwhile, on the evening of 2 December 1994 the local police issued a press release stating that the situation at the scene had become extremely serious as the suspect had been firing at the police with the apparent intention of breaking through the cordon in order to escape.", "The police had made tactical use of gas, but the suspect had continued to direct heavy fire at the police and had thrown fire bombs both outside and inside the house, causing the house to catch fire. Finally, the armed suspect had run out of the building. The situation had become so serious that the police had been forced to act. There had been an exchange of fire as a result of which the suspect had been hit and had died. 44.", "On 2 February 1995 the National Bureau of Investigation issued a press release stating that according to the investigations so far three police officers had each fired once at J. It also stated that there were grounds for investigating whether J. had committed suicide in an unusual manner. F. The consideration of the charges 1. The District Prosecutor's decision to prosecute 45. At the District Prosecutor's request, the National Bureau of Investigation conducted an additional investigation during the consideration of the charges.", "46. On 26 September 1995 the District Prosecutor decided to charge the commander of the Special Task Force, Superintendent H., with negligent homicide and negligent breach of official duty. The indictment was to the following effect. Upon his arrival at the scene, H. had received the afore-mentioned instructions on the use of force (see paragraph 15 above). It was H.'s responsibility to inform his subordinates of the instructions on the use of force.", "H. duly informed his men, but added the following: “If, despite everything, [the suspect] tries to break through the cordon of police officers, he must be stopped. In the last resort, this may be done by shooting at him in the upper body.” The District Prosecutor considered that H.'s own adaptation of the instructions on the use of force, according to which his men had the right under certain conditions to shoot J. in the upper body, was a fundamental change in orders which H. did not have the right to give without the explicit approval of the officer in charge at the scene or the officer in overall charge. H. must therefore be considered to have breached his official duties on account of his negligence in relaying the instructions to his men. Having regard to the fact that H. was to be considered as having sought to clarify the instructions for his men rather than to deliberately alter them, the District Prosecutor took the view that his conduct, although reprehensible, should be considered only as negligence in the performance of duty. Towards the end of the chain of events of 2 December 1994, just before 7 p.m., J. broke the glass on the lower part of the bedroom door and was about to exit the building with no apparent intention of surrendering to the police, apparently intent on escaping, armed, through the police cordon.", "At that moment he was hit by two shots fired simultaneously from armoured vehicle no. 51 at six metres' range by two police officers, Senior Constables A. and L. They considered, as did their superior officer, that there was no other way of stopping J., who received a fatal shot to the head. A. and L. were acting on the orders of their superior officer, Sergeant R. Accordingly, the District Prosecutor considered that H. had negligently caused J. 's death, having provided his men with an arbitrary interpretation of the instructions on the use of force, which A. and L. had tried to act upon. 2.", "The District Prosecutor's decisions not to prosecute 47. On 15 November 1995 the District Prosecutor decided not to bring charges against the officer in overall charge, Provincial Chief Inspector K.A., and the officer in charge at the scene, Superintendent T., for negligent breach of official duty, finding that the shooting of J. in the legs had been justifiable under Chapter 3, Article 8 of the Criminal Code. He also decided not to prefer charges for negligent breach of official duty against A. and L., who had both fired shots at six metres' range. He found that the decision to stop J. by using a gun had been in line with the instructions on the use of force, and justified in the circumstances. While it could be argued that the shots had been fired too early, it was unreasonable in the circumstances to direct criticism at A. and L. 48.", "Lastly, he decided against bringing charges of manslaughter against Sergeant R., finding that he had given an order to take lawful action against J. There was no evidence that he had ordered A. and L. to shoot to kill. 49. The District Prosecutor therefore concluded that the evidence did not warrant the prosecution of any of the persons involved in the siege, with the exception of the commander of the Special Task Force, Superintendent H., whom he had decided to prosecute by his decision of 26 September 1995. 50.", "On 22 February 1997 the District Prosecutor also decided against bringing charges of endangering others and committing an offence in the performance of duty against Sergeant R. in his capacity as the superior of the police officer who had fired tear gas into the house. 3. The private prosecution 51. Following the District Prosecutor's decision not to bring charges, J. 's family brought a private prosecution.", "It appears that some of them were granted free legal assistance. In April 1996 they brought charges against Senior Constable T.L. for aggravated assault and abuse of office, on the ground that he had shot at J. at 18 metres' range, inflicting bodily harm. They also preferred charges against Senior Constables A. and L. for manslaughter and aggravated abuse of office, on the ground that they had shot J. in the head at six metres' range with a 9 x 9 millimetre lead shot, in a situation where he had manoeuvred only his upper body through the door opening. Lastly, Sergeant R. was charged with manslaughter in his capacity as A. and L.'s superior officer, who had ordered them to shoot.", "The complainants also claimed damages from the State. G. The court proceedings against Superintendent H. 52. In the proceedings against the commander of the Special Task Force, Superintendent H., J. 's family did not submit any claims. 53.", "The District Court held two hearings in November 1995 and took forensic and oral evidence. The members of the Special Task Force involved in the siege appeared before the court and gave evidence to the effect that they had understood their commander, Superintendent H.'s, orders as relating to a self-defence situation in the strict sense. The officer in charge at the scene, Superintendent T., testified that at 6.37 p.m. he had heard Superintendent H. say on the police radio that J. could be shot in the legs when he appeared and that if his gun was pointed towards the police he should be shot dead. T. had been about to correct the order but he had then heard Superintendent H. correct it himself by saying that J. should not be shot dead but shot in the upper body. T. had accepted the change of order and perceived it as an operational tactic in a genuine self-defence situation.", "He had therefore not intervened. T. considered that H.'s order was in line with the instructions on the use of force. 54. A. gave evidence to the effect that, had J. managed to get up on his feet, he would have posed an immediate threat to the life or health of the police officers in the cordon. A. had perceived the situation as requiring self-defence and had therefore fired his gun.", "He had done so independently and irrespective of H.'s amendment to the instructions on the use of force. 55. L. gave evidence to the effect that the sector of fire had been too narrow to await a possibility to shoot at J. 's legs. When exiting the house J. had posed a threat to the police officers in the cordon.", "Due to J. 's position it had not been possible to aim at his legs. L. had perceived the situation as requiring self-defence. H's amendment to the instructions on the use of force had not influenced his judgment. 56.", "On 18 December 1995 the District Court (käräjäoikeus, tingsrätten) of Raasepori dismissed the charges. It observed that the forensic reports revealed that J. 's death had been caused by a shot fired at six metres' range. It was not known which of the shots fired by Senior Constables A. and L. had brought about his death. The court observed that the instruction had been given to a trained team of specialists used to working closely together.", "A. and L. had shot at J. independently of their commander Superintendent H.'s amendment to the instructions on the use of force, because they had perceived the situation as requiring self-defence. 57. The District Prosecutor appealed. On 21 August 1997 the Helsinki Court of Appeal (hovioikeus, hovrätten) upheld the lower court's judgment. The acquittal appears to have become final.", "H. The court proceedings against Senior Constables T.L., A. and L. and Sergeant R. 58. The District Court of Raasepori conducted an inspection in an armoured vehicle and heard evidence from about thirty witnesses, including four doctors on the subject of the autopsy, J. 's mental health prior to and during the siege and his treatment in a psychiatric institution; six persons responsible for the forensic investigation; the senior police officers; 11 police officers and other police personnel who had been at the scene or working with the remote units; the drivers of and police officers in the armoured vehicles; a negotiator and a firefighter; three experts on ammunition, weapons and tear gas; and two other persons on the nature of the information provided by the police after the operation. The court also had before it the pre-trial investigation records, the medical reports on J. and the reports and opinions concerning the forensic investigation. It also had audio and video tapes of the siege.", "59. The doctors testified that J. had been suffering from a serious personality disorder and paranoia, had had a grandiose perception of himself and had been aggressive and violent. They considered that he had been in need of compulsory care at the time of the events. All these factors had made the situation dangerous and urgent. 60.", "In his testimony, a forensic medical expert, T., expressed the view that firing a shotgun with lead shots, with a scatter of over 30 centimetres, at six metres' range could be considered tantamount to executing the target. The weapon in question was not a precision weapon. 61. Sergeant R. gave evidence to the effect that J. 's behaviour and the way he had exited the house had made clear his intention not to surrender but to break through the cordon while armed.", "J. had had to be stopped by having shots fired at him from the armoured vehicle, as the lives of the police officers outside would have been endangered by any cross-fire. Several police officers gave evidence to the effect that J. had come out crouching. He had also been carrying the guns, which were pointing outwards. Senior Constables L. and A had aimed at J. 's shoulder, but had hit him in the head.", "62. In its judgment of 22 August 1997 the District Court observed that the scope of the case was not to assess whether the actions of the police taken as a whole had been appropriate to the purpose of the siege. The scope was confined to the examination of the charges. 63. The court dismissed the charges against Senior Constable T.L., finding that he had not exceeded his powers.", "64. As to the charges against Senior Constables A. and L., the court noted the following. Several witnesses had given evidence to the effect that the shotguns had been pointing outwards when J. had made his way out of the building, whereas the forensic report had stated that the guns had been found pointing inwards after the fire had been extinguished. A firefighter had testified that the power of the fire brigade's hoses might possibly have altered the shotguns' position. In any event, the court found that the position of the shotguns was not decisive.", "What was decisive was the fact that J. had brought the guns when making his way out and that A. and L. had been convinced that the guns were pointing towards them. The court also attributed importance to the fact that J. had crawled out through the door although he could have opened it and walked out. The manner of exit strongly suggested that he had not planned on surrendering. On the contrary, the court drew the conclusion that J. had tried to exit the building undetected with a view to breaking through the cordon and escaping into the dark woods. As to whether any blame could be attributed to A. and L. for not waiting one or two seconds before shooting in order to be able to target the lower part of his body, the court observed that the forensic examination and a reconstruction of the events had disclosed that A.", "'s sector of fire had ended one metre to the left of the doorway and the sector available to L. had ended 0.2 metres to the left of the doorway. Having regard to the narrowness of the sectors of fire and the inside of the armoured vehicle and the fact that J. could have disappeared from their sectors of fire at any moment, the court concluded that A. and L. had fired their guns in self-defence. 65. As to their superior officer, Sergeant R., the court found that A. and L. had acted independently and in self-defence, and that his order to shoot had therefore not caused J. 's death.", "66. Accordingly, the District Court dismissed the charges and the other claims. 67. The applicant and his co-complainants appealed, requesting a hearing. On 16 and 17 September 1998 the Helsinki Court of Appeal held an oral hearing during which the defendants and five witnesses were re-examined.", "In addition, it heard evidence from one new witness proposed by the complainants, making a total of ten witnesses. The court refused the complainants' request to re-examine ten other witnesses as being manifestly unnecessary, since their statements either concerned circumstances that had already been clarified during the proceedings in the lower court or were irrelevant. It appears that the defendants did not adduce any oral evidence and that the Court of Appeal, of its own motion, called three of the witnesses who had been examined before the District Court. 68. By a judgment of 23 March 1999 the Helsinki Court of Appeal upheld the lower court's judgment.", "With regard to the charges against Senior Constable T.L., it found that he had acted in order to effect J. 's arrest under Chapter 3, Article 8(2) of the Criminal Code, which justified the use of force. As to Senior Constables A. and L. and Sergeant R., it found that, following J. 's appearance, armed, in the doorway the arrest situation had turned into a situation requiring self-defence under Chapter 3, Article 6 of the Criminal Code. Making an assessment based on the circumstances at the scene, the court considered that the shooting had been justified and necessary in order to repel an imminent attack and had fulfilled the requirements of the principle of proportionality.", "69. On 8 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the complainants leave to appeal by a majority (two votes to one). II. RELEVANT DOMESTIC LAW AND PRACTICE A. Homicide and bodily harm 70.", "The right to life is guaranteed under the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999, section 7). At the material time, it was guaranteed under the then Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/191, section 6). Manslaughter carried a minimum sentence of eight years' imprisonment or, under mitigating circumstances, four years (Chapter 21, Article 1 (as amended by Act no.", "491/1969) of the Criminal Code (rikoslaki, strafflagen) as in force at the relevant time). A person who caused the death of another through negligence could be sentenced to a fine or to imprisonment for a maximum period of two years for negligent homicide (Chapter 21, Article 8 (as amended by Act no. 578/1995) as in force at the time of the criminal proceedings). Aggravated assault carried a maximum penalty of ten years' imprisonment (Chapter 21, Article 6 (as amended by Act no. 491/69) as in force at the relevant time).", "In matters other than breaches of official secrecy, public servants acting in an official capacity who, as a result of carelessness or inattention, were in breach of or neglected to fulfil their official duties as set out in the relevant provisions or regulations, were liable to a reprimand or a fine for negligent breach of official duty, unless the act viewed overall, in the light of any harmful effects and of other circumstances, was of minor importance (Chapter 40, Article 11 (as amended by Act no. 792/1989) as in force at the relevant time). Persons committing an act which, though otherwise punishable, was necessary in order to repel a present or imminent unlawful attack against themselves or others, or against their property or that of others, were deemed to have acted in self-defence and were therefore not liable to punishment (Chapter 3, Article 6 (as amended by Act no. 621/1967) as in force at the relevant time). A person committing an act not necessary to repel an attack, protect the sanctity of the home or retrieve his or her property, was liable to either a full or a reduced sentence, at the discretion of the court, for overstepping the bounds of self-defence.", "If the circumstances were such that the person could not reasonably have been expected to retain his or her self-control, no punishment was imposed (Chapter 3, Article 9, paragraphs 1 (as amended by Act no. 621/1967) and 2 (as amended by Act no. 321/1983). That provision was amended with effect from 1 January 2004. It now provides that an act which is necessary in order to repel a present or imminent unlawful attack constitutes legitimate self-defence, unless it manifestly exceeds what, on the basis of an overall assessment, may be deemed justifiable, taking into account the nature and force of the attack, the identity of the defender and the attacker and the other circumstances.", "However, if the act oversteps the bounds of self-defence (excessive self-defence), the offender is exempt from criminal liability if the circumstances were such that he or she could not reasonably have been expected to act otherwise, taking into account the danger and the sudden nature of the attack and the situation in general (Chapter 4, Article 4 (as amended by Act no. 515/2003). B. Duties of the police 71. The Police Act in force at the material time (Act no.", "84/1966) provided that the duty of the police was to maintain public order and security (section 1). A police officer had the right to remove or apprehend a person and temporarily keep the person in custody if he or she was causing a disturbance or was posing an immediate danger to public order or security. A police officer had the right to apprehend and temporarily keep in custody a person who, on the basis of his or her threats or other behaviour, was likely to commit an offence. A person could also be taken into custody to protect him or her from imminent danger to his or her life or health (section 19). Where a police officer met resistance in the performance of his or her duty, he or she was entitled to use such force as could be deemed justified in view of the nature of the duty, the seriousness of the resistance and the other circumstances prevailing in the situation (Chapter 3, Article 8, paragraph 1 (as amended by Act no.", "621/1967) of the Criminal Code as in force at the relevant time). When a person being apprehended, arrested or detained attempts to avoid capture by resisting or escaping, the use of force is allowed in order to capture him or her, to prevent his or her escaping, or keep order, when such measures can be justified in view of the circumstances (Chapter 3, Article 8, paragraph 2 (as amended by Act no. 621/1967). In a situation where greater force has been used than can be deemed justified, the sentence may be reduced on grounds of mitigating circumstances or, if there are very persuasive reasons for so doing, a decision may be taken not to impose any punishment (Chapter 3, Article 9, paragraph 2, as amended by Act no. 321/1983).", "The Supreme Court has established precedents concerning the right of self-defence in cases relating to police actions in siege situations (nos. KKO 1988:49, 1993:50 and 2004:75). C. The right to compensation 72. A public corporation is vicariously liable in damages for injury or damage caused through error or negligence in the exercise of public authority. The same liability also applies to other corporations that perform public duties on the basis of an Act, a Decree or an authorisation given in an Act.", "However, liability is incurred in the exercise of public authority only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements laid down for it (Chapter 3, section 2 of the Tort Liability Act (Act no. 412/1974). Damages shall constitute compensation for personal injury and damage to property. Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority, or in other cases where there are especially compelling reasons, damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property (Chapter 5, section 1). A person who has suffered a bodily harm or other personal injury shall be entitled to damages to cover medical costs and the other costs arising from the injury and to compensate for loss of income and maintenance, pain and suffering, invalidity and other permanent disability (Chapter 5, section 2).", "The provisions on personal injury apply also to damages for the distress caused by an offence against individual liberty, honour or domestic peace or by another comparable offence (Chapter 5, section 6). D. Evaluation of evidence 73. The court shall decide what is to be regarded as the truth in the case after having carefully evaluated all the facts submitted to it (Chapter 17, Article 2, paragraph 1 (as amended by Act no. 571/1948) of the Code of Judicial Procedure). E. Organisation of the police 74.", "The police force operates under the supervision of the Ministry of the Interior. It is a three-tier organisation. At the top is the Police Department of the Ministry of the Interior or the Supreme Police Command. Below are the Provincial Police Commands, the national police units, the police training establishments, the Police Technical Centre and, for operational purposes, the Helsinki Police Department. The third level is the local police, who operate under the relevant Provincial Police Command.", "The Police Department of the Ministry of the Interior also comprises the Police Advisory Board set up by the Government. Each district police force has its own police advisory committee, appointed by the local council. Provisions on the organisation of the police and the duties of the different police units and advisory committees are laid down by the Police Administration Act (laki poliisin hallinnosta, polisförvaltningslagen; Act no. 110/1992). The national police units also come under the supervision of the Ministry of the Interior.", "However, the National Bureau of Investigation is separate from the provincial and local police forces. A Special Task Force is maintained by Helsinki Police Department, answerable to the Ministry of the Interior. It has no special privileges and must comply with the legal, operational and ethical standards laid down for the police. It is a part of the police structure and always operates under the command of the unit whose operation it is participating in. The lines of action are decided by the officer in overall charge and, on the ground, the Special Task Force is subordinated to the officer in charge at the scene.", "The duty of the Special Task Force is to be prepared and equipped for situations where normal police operations fail to produce the desired outcome. Its members are trained to act as a specialist team, and have more elaborate protective equipment than the local police. They receive regular training in special operations such as siege and hostage situations. They are members of the police patrol force. In 1994 special operations and training accounted for approximately twenty per cent of their work time.", "At the material time, the Special Task Force's equipment did not include protective gear against rifle-calibre weapons. The amount of night-vision equipment which they had was not adequate and their clothing was unsuitable for prolonged operations in winter conditions. III. RELEVANT INTERNATIONAL LAW AND PRACTICE 75. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.", "Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. Other relevant provisions read as follows: Paragraph 10 “... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” Paragraph 22 “... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.” Paragraph 23 “Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 76. The applicant complained that the facts of the case disclosed a violation of J. 's right to life, as the use of lethal force had not been absolutely necessary. Article 2 reads: “1. Everyone's right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 77. The Government contested the allegation, arguing that it was undisputed that J. had been suspected of a criminal offence and, after a siege lasting more than two days, had been shot and fatally wounded in an operation to effect his lawful arrest. A.", "Arguments of the parties 1. Whether the use of force was absolutely necessary 78. The applicant maintained that the use of force had not been absolutely necessary. The operation had been aimed at arresting J. and taking him to hospital but he had been shot dead intentionally, or executed as Dr T. had put it when examined as a witness during the criminal proceedings. Shooting someone at six metres' range with nine millimetre lead shots could not be justified on any grounds, as there had been no indication that J. posed a threat to anyone.", "Senior Constables A. and L. had been safe inside the armoured vehicle. Neither had any evidence been produced during the court proceedings to the effect that anyone else at the scene had been in danger. J., already injured, had been in the process of crawling out of the house when he had been shot in the head. At that time he had not posed a danger to anyone and had not been about to exit the cordoned area. The barrels of his shotguns had been pointing inwards.", "The guns had not even been cocked. J. had been making his way out of a burning house, blinded by the sudden change from intense light to darkness. His mobility had been reduced as a result of the injuries to his leg and hand. The shooting had been in violation of the principle of proportionality. 79.", "The applicant emphasised that the police had failed to draw proper conclusions from the information they had received on J. 's mental illness. They had treated an ill person like a dangerous professional criminal although he had done no harm to anyone. 80. The Government pointed out that J. had been shown to pose a serious threat to those present at the scene.", "He had previously been involved in a siege situation and in other violent crimes. He was known to have acted violently towards the police and even towards members of his own family, having shot at his own brother previously, and was also known to have had mental health problems. In addition, the circumstances at the scene were extremely difficult due to the weather and other conditions. The applicable law was in conformity with Article 2 of the Convention. The police could interfere with a person's constitutional rights only if it was permitted by law.", "In the present case, as noted by the domestic courts, the police officers in question had had justifiable reasons for believing that J. had made an illegal threat and committed an assault and possibly a robbery. In addition, J. had been proven to be dangerous to the public at large and especially to those present at the scene. This entitled the police to apprehend him and take him into custody. The Government made reference to Andronicou and Constantinou v. Cyprus (judgment of 9 October 1997, Reports of Judgments and Decisions 1997‑VI, p. 2107, § 192) and McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324, p. 58, § 200), in which the Court had stated that the use of force may be justified where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.", "In the present case the situation during the operation fulfilled the requirements of Article 2 § 2 (a) and (b). The police officers had been trying to effect a lawful arrest while protecting themselves, the other persons at the scene and the residents of the island. As concluded during the pre-trial investigation and the consideration of the charges and also during the proceedings before the domestic courts, had J. been allowed to escape armed, the lives of even more people would have been in danger. Therefore, the perception of the situation and the actions taken in the present case had not been proved to be mistaken. 2.", "Supervision and organisation of the operation 81. The applicant submitted that the killing had not been based on any plan and had been in flagrant violation of the instructions on the use of force. In fact, the decision to shoot had been taken by the individual police officers of the Special Task Force without weighing up the alternatives. They had subsequently explained that the shooting had been an act of self-defence. It was clear from the audio tape that seven seconds had passed from the moment that J. appeared in the doorway until the firing of the fatal shots.", "Further, the recording also revealed that when the commander of the Special Task Force, Superintendent H., had ordered that J. be shot immediately in the legs, Senior Constables A. and L. had just fired their shotguns, hitting J. in the head with 9 x 9 millimetre lead shots. The order to shoot him in the legs had been valid only in the event of his trying to break through the cordon situated fifteen metres from the house. The visibility from the armoured vehicle had been completely clear. 82. The applicant submitted that the police's subsequent diverging explanations showed that there had been a lack of proper planning and direction of the police forces.", "The police operation had been limited to the siege, the use of gas and the demonstration of the police's superiority in terms of equipment and numbers. Apart from the instructions regarding the use of force, there had been no other plans to apprehend J. The negotiator could hardly be called a professional and J. 's brother and police officer S.K., who were familiar to J., had been denied the chance to speak to him when they arrived at the scene. The police had failed to search the house and to use the police dog.", "The closing of the telephone lines could hardly be characterised as giving J. a night's rest. Public order and safety had not been jeopardised because all the residents of the island and other people on the island apart from the authorities had been evacuated. Using gas, breaking windows and bringing in armoured vehicles cannot be characterised as a peaceful means of trying to apprehend a psychologically disturbed person and hospitalising him. The police had no other plans to rescue J. from the burning house. 83.", "According to the applicant, the orders and the permission to shoot had been violated on both occasions when J. had been shot. Initially, the police had had permission to shoot J. in the foot, but had hit him in his upper body. Subsequently, J. had been shot twice in the head from an armoured vehicle, although no permission had been given to shoot him. 84. The applicant challenged the Government's contention that J. had crawled out holding two weapons aimed towards the police officers.", "In fact, the forensic investigation and the photographic evidence had shown that the barrels of the shotguns had been pointing inwards. In addition, the police officers who had shot J. at six metres' range had been inside the armoured vehicle and had thus not been visible to the applicant. J. 's guns had not been in working order. J., already injured, had been crawling out of the burning house in order to save himself at the last minute.", "He could easily have been apprehended if that was what the police had wanted to do. In shooting J., police officers A., L., and R., who gave the order, intentionally took his life whereas they should have apprehended him. The blood stains demonstrated that J. had been shot dead right in the doorway, in other words, that his head had not been far outside the doorway. 85. The Government emphasised that the entire operation had been initiated and prolonged as a result of J.", "'s own actions and his violent resistance to the police officers performing their duty to protect and maintain public order and security. The operation had begun following an emergency call and when more details about the situation had emerged, it had been scaled up into a major operation. It had been planned and directed by high-ranking and experienced police officers who had been at the scene from an early stage. Those in charge at the scene had kept the line of action under constant review in the light of the changes in the situation and circumstances. All the action had been based on official action plans and guidelines prepared for special operations such as the one in question.", "Practical training based on those action plans had been carried out on several occasions, the most recent night-time practice operation having taken place only two months prior to the operation in question. At the scene there had been several highly experienced specialists in different fields, including specially trained police personnel and negotiators. The Supreme and Provincial Police Commands had been kept constantly informed of the details of the situation and its seriousness. After the second night of the siege the Provincial Police Command had been present and monitored the operation at the scene. Further assistance had been requested and received from the coast guard, the border guard and the defence forces, in the form of vehicles and other equipment.", "The Government made reference to Andronicou and Constantinou v. Cyprus (cited above, § 183), in which the Court had found no violation although the operation had displayed some shortcomings, such as lack of crowd control and lack of a dedicated telephone line between the negotiator and the perpetrator. 86. The Government also referred to McCann and Others v. the United Kingdom (cited above), in which the Court had found a violation based, inter alia, on the fact that the authorities had not taken into account that the information gathered might have been erroneous; nor had they had an alternative plan of action if the intelligence had proved to be false. In the present case, there existed pre-approved plans of action for the operation, regulations on the use of firearms, an established chain of command and a clear operational structure. All the actions had been authorised by senior officers.", "No rank-and-file police officers had acted on their own, nor had any unnecessary force been used despite J. 's continuous actions and threats aimed at those present at the scene. Over a period of two nights and two days, the use of force by the police had been limited to three shots aimed at J., all of which had been fired during the last hour of the siege. One shot had been aimed at J. 's foot and the other two shots had been fired in the final moments of the siege when he had been leaving the building with two long-barrelled guns in his hands.", "In addition, the police had thrown several canisters of tear gas into the house before J. had set it on fire. 87. The Government emphasised that the measures taken during the operation had been the result of a careful weighing-up of the situation and the various options for ending the siege as peacefully as possible without causing unnecessary harm to anyone. Several alternative actions, such as a house search and the use of a dog for the arrest, had been abandoned for appropriate and thoroughly considered reasons. The use of force had been proportionate and absolutely necessary taking into account J.", "'s actions, the fact that he had tried to leave the house with loaded guns pointing towards those present at the scene, giving no grounds for believing that he would surrender, and the other relevant facts. 3. Whether there was an effective investigation 88. The applicant pointed out that in their press releases the police had given out wholly inaccurate information about the killing of J. in the doorway. 89.", "The applicant considered that the investigation had been faulty, which in turn had resulted in an erroneous consideration of the charges by the District Prosecutor. The investigation had taken as its starting-point the idea that J. had committed suicide and the police had sought to obtain information from J. 's family suggesting that he had committed suicide by having the police shoot him. Both the investigation and the consideration of the charges had displayed an aspiration to look into the possibility that J. had committed suicide. The charges brought against the commander of the Special Task Force had nothing to do with the facts of the case and it was no surprise that they had been dismissed.", "The corollary to that was that all the others involved had been discharged from liability, to the extent that Senior Constables A. and L. and their superior officer, Sergeant R., had never been suspects in the killing of J. This was emblematic of the official investigation and the consideration of the charges. At the same time, the bringing of charges against the commander had resulted in the police officers who had fired the shots and their superior officer being absolved of responsibility. 90. The Government submitted that, in the present case, unlike the case of Kelly and Others v. the United Kingdom (no.", "30054/96, 4 May 2001) the National Bureau of Investigation had conducted a thorough pre-trial investigation of its own motion immediately after the siege and two additional pre-trial investigations at the request of J. 's family and the District Prosecutor. The National Bureau of Investigation had no hierarchical, institutional or practical connection with the Provincial Police Command or the local police. Various records regarding the autopsy, J. 's mental health, the weapons used, the plans made and the actions taken during the operation had been included in the pre-trial documents.", "All the police officers responsible for firing the shots had been questioned, along with other eyewitnesses and persons involved in the operation, whose identities had been made public. No unnecessary delays had occurred during the investigation. There had been ample public scrutiny and information, since J. 's family had participated in the pre-trial investigation, had been informed of the state of the investigation and had also successfully requested an additional investigation. Furthermore, the trial had been open to the public and the case had been widely publicised in the media.", "91. The Government submitted that, in addition to the investigation by the National Bureau of Investigation, the District Prosecutor had also considered the documentation and the entire operation. He had made decisions not to prosecute the three police officers who had fired shots during the operation, the officer in charge at the scene and the officer in overall charge. The commander of the Special Task Force had been prosecuted, but the charges had been dismissed by the court. The decisions not to prosecute together with reasons and the pre-trial investigation material gathered had been made available to J.", "'s family. They had therefore been able to acquaint themselves with all the details of the case. They had proceeded with a private prosecution with free legal assistance, had invited witnesses and had provided the court with all the material they deemed necessary. In the Government's view, there had been an effective official investigation. B.", "The Court's assessment 1. General principles 92. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed.", "The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others, cited above, pp. 45-46, §§ 146-147). 93. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances, including such matters as the planning and control of the actions under consideration. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c).", "This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (McCann and Others, cited above, p. 46, §§ 148-149). 94. In determining whether the force used is compatible with Article 2, it may therefore be relevant whether a law enforcement operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life (McCann and Others, cited above, p. 57, § 194, and Ergı v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1776-77, § 79).", "95. Furthermore, 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, cited above, 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, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001; Douglas-Williams v. the United Kingdom (dec.), no.", "56413/00, 8 January 2002). 2. Application to the present case (a) The actions of the police officers 96. The Court sees no reason to doubt that Senior Constables A. and L. honestly believed that it was necessary to open fire on J. in order to protect their colleagues who were without protection outside the armoured vehicles. The use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but subsequently turns out to be mistaken.", "To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and the lives of others (see McCann and Others, cited above, pp. 58-59, § 200; Andronicou and Constantinou, cited above, p. 2107, § 192; Brady v. the United Kingdom, (dec), no. 55151/00, 3 April 2001). 97. The Court would also add that, detached from the events in issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others (see, mutatis mutandis, Andronicou and Constantinou, cited above, p. 2107, § 192).", "The officers found themselves confronted by a man who emerged in the doorway with two guns and who had shot at the police on several occasions during the two-day siege. Whether the guns had pointed outwards when J. had become visible in the doorway was not established. What is decisive for the Court is that J. emerged from the house heavily armed. J. had ignored previous warnings to give himself up and, in defiance of these warnings, he had fired numerous shots in the air and at the police officers. He conveyed on occasions a clear impression that he would continue to use his gun.", "It is to be noted that the earlier warnings for him to surrender went unheeded. Further, it is to be noted that it was not the intention of Senior Constables A. and L. to kill J., but to immobilise him by wounding him. However, given the restricted sector of fire and the fact that J. was crouching at the critical moment one of the shots proved to be fatal. 98. For the Court, the use of fire arms in the circumstances of this case, albeit highly regrettable given the lethal consequences, was not disproportionate and did not exceed what was absolutely necessary to avert what was honestly perceived by the police officers to be a real and immediate risk to the lives of their colleagues.", "(b) The planning and control of the operation 99. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed. Its sole concern must be to evaluate whether in the circumstances the planning and control of the operation outside J. 's house showed that the authorities had taken appropriate care to ensure that any risk to his life had been minimised and that they were not negligent in their choice of action (see Andronicou and Constantinou, cited above, §§ 181-182). 100.", "The Court notes that the background to the police intervention was a report to the effect that J. had threatened a taxi driver with a gun (see paragraph 8 above). The police operation was mounted with the sole aim of arresting him. The police officers who arrived at the scene learned that there was a heavily armed man inside the house and that he was an excellent shot. That information triggered a major police operation, including the summoning of armed officers and their subsequent positioning around the house. It is to be observed that the conduct of that operation remained at all times under the control of senior officers and that the deployment of the armed officers was reviewed and approved by the officer in charge.", "101. It cannot be disputed that the police considered that they were involved in a tense situation with an armed man and that measures had to be taken to protect the public by preventing him from escaping. They cordoned off the area in order to avert any threat to the lives of others and they had the area around the house lit so as to prevent J. from leaving the premises undetected. 102. It is to be observed that it was of primary concern to the police to break the deadlock by persuasion.", "Numerous warnings were shouted and ample opportunities were afforded to him to give himself up. These warnings were ignored. Nor did J. answer the phone in the later stages of the siege although the police tried to reach him repeatedly. 103. A trained negotiator was available at the scene of the incident to broker an end to the siege.", "Those attempts however proved unsuccessful. 104. The Court must be cautious about revisiting the events with the wisdom of hindsight. It would observe that, having regard to the information according to which J. was unpredictable, there is no guarantee that the presence of his brother O. and police officer S.K. at the scene at an earlier stage would have been any more successful than the efforts of the police negotiator assisted by the psychologist in bringing the matter to a peaceful close.", "J. was at all times aware of the fact that there was a police presence outside his house, and yet persisted in firing his gun. It is further to be noted that J. continued not to answer the telephone in the closing stages of the siege, which indicated his unwillingness to co-operate. 105. In the circumstances, the Court does not consider that those in charge can be faulted for not having withdrawn the armed police officers from around the house. Even though the applicant argued that the presence of police officers close to the house would have been provocative to J., this course of action was not lightly undertaken.", "The advisability of positioning them there was considered, approved and reviewed by experienced officers, and there was at all times a chain of command. Following the ordering of the use of tear gas to break J. 's resistance on the second day and the removal of the windows and the curtains, it would appear that later in the afternoon the police were unwilling to take any further action, but tried to defuse the situation without recourse to lethal force or to tactics which might provoke a violent response from J. The fact that J. set the house on fire exacerbated the situation. This could not have been foreseen.", "He was seen walking around inside the house carrying a rucksack and breaking furniture in an uncontrolled manner. While it is true that the police shot at J. inside the house with the intention of injuring him, they did so in order to induce him to exit the burning house and surrender so that he could be apprehended. 106. The Court cannot agree with the applicant's submission that the manner in which the operation was planned and conducted inevitably led to the fatal shooting of J. While it is true that the police had ample time, between the arrival at the scene of the first policemen during the night and early hours of 1 December 1994, and the culmination of events at around 7 p.m. on 2 December 1994, it must be recalled that the actual incident ended abruptly and was fraught with risk for J. and the unprotected police officers in the cordon.", "107. It would further observe that the use of firearms by the police as well as the conduct of police operations of the kind in issue were regulated by domestic law and that a system of adequate and effective safeguards existed to prevent arbitrary use of lethal force. In the instant case, none of the key officers concerned operated in a vacuum. They were all trained in the use of firearms and their movements and actions were subject to the control and supervision of experienced senior officers (compare and contrast, Makaratzis v. Greece, [GC], no. 50385/99, § 70, ECHR 2004-XI).", "108. Having regard to the above considerations, the Court is of the view that it has not been shown that the operation in issue was not planned and organised in a way which minimised to the greatest extent possible any risk to the life of the applicant's brother J. (c) Conclusion concerning the substantive limb of Article 2 109. To recapitulate, the Court considers that, having regard to the actions of the police officers who opened fire and to the planning and control of the operation in issue, the killing of J. resulted from the use of force which was no more than was absolutely necessary in defence of the lives of the personnel outside the armoured vehicles, in conformity with Article 2. There has, accordingly, been no violation of that Article under its substantive limb.", "(d) The procedural requirement in Article 2 110. The Court notes that during the siege a log was kept of the decisions made and actions taken, that the later part of the siege was recorded on audio tape and that the use of tear gas was also recorded on video tape. Although the area was sealed off for the crime-scene investigation, some evidence may have been destroyed when the fire was being extinguished. Despite this, it was possible to collect details of the bullet holes in and around the building. The investigation, which started immediately after the siege, was carried out by the National Bureau of Investigation which specialises in the investigation of serious crime.", "There is no indication that the investigators were not independent from those taking part in the police operation. While it is true that on 2 February 1995 the National Bureau of Investigation issued a press release stating that there were grounds for investigating whether the suspect had committed suicide, the Court notes that about a week later, on 8 February 1995, the National Bureau of Investigation, having received the report concerning the cause of death, began to investigate whether anyone involved in the siege had acted in an unlawful manner. The decisions made and the actions taken during the operation were also studied by a permanent investigation team set up by the Ministry of the Interior, which reviewed the operation in question hour by hour. The report was finalised within one year of the operation. 111.", "The autopsy report and the results of all the forensic and other investigations, as well as the reports on the siege, were included in the pre-trial documentation, together with a large number of witness statements. At the particular request of J. 's family and the public prosecutor, certain additional lines of inquiry were followed up during the pre-trial investigation. As for the complainants' investigation requests which were turned down and their criticism of the conduct of the investigation, the Court would note that whilst it is of the utmost importance that a complete and accurate picture emerges of the events leading up to a killing by State agents, the evidence to be gathered to that end must be filtered in accordance with its relevance. What is important for the Court is the fact that the family had at its disposal as much information as was commensurate with the defence of its interests in the national proceedings, namely clarifying the facts surrounding the death of J. and securing the accountability of the police officers involved for any alleged acts and omissions.", "112. Less than a year after the incident, the public prosecutor brought charges against the commander of the Special Task Force, Superintendent H. He decided however to waive charges against the officer in overall charge, Provincial Chief Inspector K.A., the officer in charge at the scene, Superintendent T., Senior Constables A. and L. and Sergeant R. J. 's family could, and did, bring a private prosecution against the three last-mentioned police officers plus Senior Constable T.L. 113.", "In the court proceedings against Superintendent H. the District Court took forensic and oral evidence. The defendant, the members of the Special Task Force involved in the siege and the officer in charge at the scene, Superintendent T. plus Senior Constables A. and L. appeared before the court and gave evidence. Having received the District Court's judgment acquitting the defendant, the public prosecutor lodged an appeal. The family was legally represented throughout the proceedings by experienced counsel. The lawyer acting on behalf of the applicant was able to examine key-witnesses, including the police officers who had fired their guns and those who had been in charge of the operation, and to make the submissions he wished to make in the course of the proceedings.", "114. Having regard to the considerable number of witnesses who gave evidence at the pre-trial investigation, that the investigation included the appropriate forensic examinations, that the representative of the applicant was able to request additional investigations and that the essential witnesses who could help shed light on the events testified in the first set of criminal proceedings, the Court finds that the investigation complied with Article 2 requirements. 115. Having regard to the above considerations, the Court concludes that there has been no violation of the respondent State's procedural obligations under Article 2 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been no violation of Article 2 of the Convention.", "Done in English, and notified in writing on 13 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF BAHÇELİ v. TURKEY (Application no. 35257/04) JUDGMENT STRASBOURG 6 October 2009 FINAL 06/01/2010 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 Bahçeli v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 15 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35257/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Murat Bahçeli (“the applicant”), on 31 August 2004. The applicant was represented by Mr K.T. Sürek, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2.", "On 28 August 2008 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the applicant's right to be released pending judicial proceedings and to a fair hearing within a reasonable time 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 THE CIRCUMSTANCES OF THE CASE 3. The applicant was born in 1976 and lives in Istanbul. 4.", "On 20 August 1996 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation, namely the DHKP‑C (Devrimci Halk Kurtuluş Partisi-Cephesi; the Revolutionary People's Liberation Party-Front), as well as aiding and abetting the said organisation. 5. On 3 September 1996 the applicant was remanded in custody. 6. On 6 December 1996 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with other persons, charging him with membership of an illegal organisation under Article 168 § 1 of the former Criminal Code.", "7. On 20 May 2002 the Istanbul State Security Court found the applicant guilty of activities carried out for the purpose of bringing about the secession of part of the national territory. The applicant was sentenced to death; his sentence was subsequently commuted to life imprisonment. 8. On 30 September 2003 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to specify the provision of the Criminal Code under which the applicant had been found guilty.", "The Court of Cassation held that the applicant had been unlawfully held accountable for an event which had not been included in the bill of indictment of 6 December 1996. 9. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Istanbul Assize Court.", "10. On 31 March 2006 the applicant was released pending trial. 11. According to the information in the case file, the case is still pending before the Istanbul Assize Court. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 6 § 1 OF THE CONVENTION 12. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. He further alleged under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time. 13. The Court notes that the applicant's pre-trial detention began on 20 August 1996 when he was taken into police custody and continued until he was convicted by the trial court on 20 May 2002.", "From that point on until the Court of Cassation quashed his conviction on 30 September 2003, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) of the Convention (see Solmaz v. Turkey, no. 27561/02, §§ 34-37, ECHR 2007‑II). From 30 September 2003 until his release on 31 March 2006, however, the applicant was once more in pre-trial detention for the purposes of Article 5 § 3 of the Convention. It follows that the applicant spent a total of eight years and three months in this form of custody. 14.", "As for the length of the proceedings, the Court observes that the relevant proceedings commenced on 20 August 1996 with the applicant's arrest and, according to the information in the case-file as submitted by the parties to date, are still pending before the Istanbul Assize Court. They have thus already lasted over thirteen years and one month for two levels of jurisdiction. A. Admissibility 15. The Government asked the Court to dismiss the application for failure to exhaust domestic remedies, under Article 35 § 1 of the Convention. Referring to the Court's decision in the case of Köse v. Turkey ((dec.), no.", "50177/99, 2 May 2006), the Government maintained that the applicant had failed to object to his continued detention, pursuant to Articles 298 of the former Code of Criminal Procedure. They also argued, in the alternative, that domestic remedies had not been exhausted as the criminal proceedings were still pending before the Istanbul Assize Court. 16. The Government further submitted that the applicant could not claim to be a victim of a violation of Article 5 § 3 of the Convention because the time spent by him on remand would eventually be deducted from the total sentence imposed on him. 17.", "Lastly, the Government argued that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. In their view, the applicant should have brought his application to the Court sooner, had he considered that there were no effective remedies under domestic law in respect of his Convention grievances. 18. As regards the Government's non-exhaustion objection, the Court notes that it has already examined and rejected both aspects of this contention in previous cases (see, in particular, Koşti and Others v. Turkey, no. 74321/01, §§ 19-24, 3 May 2007; Mehmet Şah Çelik v. Turkey, no.", "48545/99, §§ 22-31, 24 July 2007; Tamamboğa and Gül v. Turkey, no. 1636/02, §§ 27-29, 29 November 2007; Ertürk v. Turkey, no. 15259/02, §§ 21‑22, 12 April 2005; Tutar v. Turkey, no. 11798/03, §§ 12‑14, 10 October 2006). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence.", "It therefore rejects the Government's objection under this head. 19. As regards the applicant's victim status, the Court notes that it has already examined similar submissions made by the respondent Government in other cases (see, for example, Arı and Şen v. Turkey, no. 33746/02, § 19, 2 October 2007 and the cases cited therein). In the present case the Government have not submitted any arguments which could lead the Court to reach a different conclusion.", "Accordingly, the Government's objection to the applicant's victim status must be rejected. 20. As for the applicant's compliance with the six-month time-limit, the Court reiterates that, according to its established case-law, where no domestic remedy is available the six‑month period runs from the date of the act alleged to constitute a violation of the Convention. However, where there is a continuing situation, the period of six months only begins to run from the end of the situation concerned (İpek and Others v. Turkey, nos. 17019/02 and 30070/02, § 24, 3 February 2009).", "In the instant case, the applicant was released from pre‑trial detention only on 31 March 2006, whereas he lodged his application with the Court on 31 August 2004, when his detention was still continuing. Consequently, and bearing in mind that the criminal proceedings are still pending before the Istanbul Assize Court, the Court finds that the application was lodged well within time. 21. The Court considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 22. As regards the complaint under Article 5 § 3 of the Convention the Government submitted that the applicant's detention had been based on the existence of reasonable grounds of suspicion of his having committed an offence, and that the custodial measure had been reviewed periodically by the competent authority. They further pointed out that there had been a genuine requirement of public interest for the applicant's continued detention in view of the serious nature of the offence with which he had been charged.", "They maintained that his detention had also been necessary to prevent him from committing a further offence, absconding and removing evidence. 23. The Government contended in relation to the complaint under Article 6 § 1 of the Convention that, in the circumstances of the present case, the criminal proceedings could not be considered to have been unreasonably long. In this respect, they submitted that the case was complex, considering the charges against the applicant and the number of defendants involved, and that no negligence or delay could be imputed to the judicial authorities. They further alleged that the applicant had contributed to the length of the proceedings by not appearing at a number of hearings and that his lawyer had been inactive in defending him.", "24. The Court has frequently found violations of Articles 5 § 3 and 6 § 1 of the Convention in cases raising similar issues to those in the present application (see, for example, Yaşar v. Turkey, no. 46412/99, §§ 56‑65, 24 January 2006; Atıcı v. Turkey (no. 1), no. 19735/02, §§ 48‑51, 10 May 2007; Solmaz, cited above, §§ 34-51; Arı and Şen, cited above, §§ 27‑30; Getiren v. Turkey, no.", "10301/03, §§ 104-109, 22 July 2008; Cahit Demirel v. Turkey, no. 18623/03, §§ 21-28 and §§ 35-42, 7 July 2009[1]). 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, it considers that the length of the applicant's pre-trial detention and of the criminal proceedings against him was excessive and contravened Articles 5 § 3 and 6 § 1 of the Convention.", "The Court notes particularly in this regard that even if the delay in the criminal proceedings may be considered to have been partly attributable to the applicant as alleged by the Government, the overall length of the proceedings was still excessive and failed to meet the “reasonable-time” requirement. 26. There has accordingly been a violation of these provisions. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Articles 5 § 3 and 6 § 1 of the Convention.", "Done in English, and notified in writing on 6 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1]. Judgment not final yet." ]

[ "GRAND CHAMBER CASE OF SAADI v. ITALY (Application no. 37201/06) JUDGMENT STRASBOURG 28 February 2008 In the case of Saadi v. Italy, 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,Françoise Tulkens,Loukis Loucaides,Corneliu Bîrsan,Nina Vajić,Vladimiro Zagrebelsky,Alvina Gyulumyan,Khanlar Hajiyev,Dean Spielmann,Egbert Myjer,Sverre Erik Jebens,Ineta Ziemele,Isabelle Berro-Lefèvre, judges,and Vincent Berger, Jurisconsult, Having deliberated in private on 11 July 2007 and 23 January 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 37201/06) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr Nassim Saadi (“the applicant”), on 14 September 2006. 2.", "The applicant was represented by Mr S. Clementi and Mr B. Manara, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their deputy co‑Agent, Mr N. Lettieri. 3. The applicant alleged that enforcement of a decision to deport him to Tunisia would expose him to the risk of being subjected to treatment contrary to Article 3 of the Convention and to a flagrant denial of justice (Article 6 of the Convention).", "In addition, the measure concerned would infringe his right to respect for his family life (Article 8 of the Convention) and had been taken in disregard of the procedural safeguards laid down in Article 1 of Protocol No. 7. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 October 2006 the President of that Section decided to give notice of the application to the Government.", "By virtue of Article 29 § 3 of the Convention, it was decided that the admissibility and merits of the application would be examined together and that the case would be given priority (Rule 41). 5. On 29 March 2007 a Chamber of the Third Section, composed of Boštjan M. Zupančič, Corneliu Bîrsan, Vladimiro Zagrebelsky, Alvina Gyulumyan, Egbert Myjer, Ineta Ziemele and Isabelle Berro-Lefèvre, judges, and Santiago Quesada, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.", "7. The applicant and the Government each filed a memorial on the merits. The parties replied in writing to each other’s memorials. In addition, third-party comments were received from the United Kingdom Government, which had exercised its right to intervene (Article 36 § 2 of the Convention and Rule 44 § 2). 8.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 11 July 2007 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrN. Lettieri, officer of the State legal service,Ministry of Foreign Affairs,Deputy co-Agent,MsE. Mazzuco, prefect,MrA. Bella, senior police officer,MrC.", "Galzerano, deputy chief constable,Advisers; (b) for the applicantMrS. Clementi, lawyer,Counsel; (c) for the United Kingdom GovernmentMrD. Walton,Agent,MrJ. Swift, barrister,Counsel,MrS. Braviner-Roman, Ministry of the Interior,MsA.", "Fitzgerald, Ministry of Justice,MrE. Adams, Ministry of Justice,Advisers. The Court heard addresses by Mr Clementi, Mr Lettieri and Mr Swift and their replies to questions by the judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "The applicant was born in 1974 and lives in Milan. 10. The applicant, who entered Italy at some unspecified time between 1996 and 1999, held a residence permit issued for “family reasons” by the Bologna police authority (questura) on 29 December 2001. This permit was due to expire on 11 October 2002. A.", "The criminal proceedings against the applicant in Italy and Tunisia 11. On 9 October 2002 the applicant was arrested on suspicion of involvement in international terrorism (Article 270 bis of the Criminal Code), among other offences, and placed in pre-trial detention. He and five others were subsequently committed for trial in the Milan Assize Court. 12. The applicant faced four charges.", "The first of these was conspiracy to commit acts of violence (including attacks with explosive devices) in States other than Italy with the aim of spreading terror. It was alleged that between December 2001 and September 2002 the applicant had been one of the organisers and leaders of the conspiracy, had laid down its ideological doctrine and given the necessary orders for its objectives to be met. The second charge concerned falsification “of a large number of documents such as passports, driving licences and residence permits”. The applicant was also accused of receiving stolen goods and of attempting to aid and abet the entry into Italian territory of an unknown number of aliens in breach of the immigration legislation. 13.", "At his trial the prosecution called for the applicant to be sentenced to thirteen years’ imprisonment. The applicant’s lawyer asked the Assize Court to acquit his client of international terrorism and left determination of the other charges to the court’s discretion. 14. In a judgment of 9 May 2005, the Milan Assize Court altered the legal classification of the first offence charged. It took the view that the acts of which he stood accused did not constitute international terrorism but criminal conspiracy.", "It sentenced the applicant to four years and six months’ imprisonment for that offence, and for the forgery and receiving offences. It acquitted the applicant of aiding and abetting clandestine immigration, ruling that the acts he stood accused of had not been committed. 15. As a secondary penalty, the Assize Court banned the applicant from exercising public office for a period of five years and ordered that after serving his sentence he was to be deported. 16.", "In the reasons for its judgment, which ran to 331 pages, the Assize Court observed that the evidence against the applicant included intercepts of telephone and radio communications, witness statements and numerous false documents that had been seized. Taken together, this evidence proved that the applicant had been engaged in a conspiracy to receive and falsify stolen documents, an activity from which he derived his means of subsistence. On the other hand, it had not been established that the documents in question had been used by the persons in whose names they had been falsely made out to enter Italian territory illegally. 17. As regards the charge of international terrorism, the Assize Court firstly noted that a conspiracy was “terrorist” in nature where its aim was to commit violent acts against civilians or persons not actively participating in armed conflict with the intention of spreading terror or obliging a government or international organisation to perform or refrain from performing any act, or where the motive was political, ideological or religious in nature.", "In the present case it was not known whether the violent acts that the applicant and his accomplices were preparing to commit, according to the prosecution submissions, were to be part of an armed conflict or not. 18. In addition, the evidence taken during the investigation and trial was not capable of proving beyond a reasonable doubt that the accused had begun to put into practice their plan of committing acts of violence, or that they had provided logistical or financial support to other persons or organisations having terrorist aims. In particular, such evidence was not provided by the telephone and radio intercepts. These proved only that the applicant and his accomplices had links with persons and organisations belonging to Islamic fundamentalist circles, that they were hostile to “infidels” (and particularly those present in territories considered to be Muslim) and that their relational world was made up of “brothers” united by identical religious and ideological beliefs.", "19. Using coded language the defendants and their correspondents had repeatedly mentioned a “football match”, intended to strengthen their faith in God. For the Assize Court it was quite obvious that this was not a reference to some sporting event but to an action applying the principles of the most radical form of Islam. However, it had not been possible to ascertain what particular “action” was meant or where it was intended to take place. 20.", "Moreover, the applicant had left Milan on 17 January 2002 and, after a stopover in Amsterdam, made his way to Iran, from where he had returned to Italy on 14 February 2002. He had also spoken of a “leader of the brothers” who was in Iran. Some members of the group to which the applicant belonged had travelled to “training camps” in Afghanistan and had procured weapons, explosives, and observation and video-recording equipment. In the applicant’s flat and those of his co-defendants, the police had seized propaganda about jihad – or holy war – on behalf of Islam. In addition, in telephone calls to members of his family in Tunisia made from the place where he was being detained in Italy, the applicant had referred to the “martyrdom” of his brother Fadhal Saadi; in other conversations he had mentioned his intention to take part in holy war.", "21. However, no further evidence capable of proving the existence and aim of a terrorist organisation had been found. In particular, there was no evidence that the applicant and his accomplices had decided to channel their fundamentalist faith into violent action covered by the definition of a terrorist act. Their desire to join a jihad and eliminate the enemies of Islam could very well be satisfied through acts of war in the context of an armed conflict, that is, acts not covered by the concept of “terrorism”. It had not been established whether the applicant’s brother had really died in a suicide bombing or whether that event had been the “football match” which the defendants had repeatedly referred to.", "22. The applicant and the prosecution appealed. The applicant asked to be acquitted of all the charges, while the prosecution wanted him to be convicted of international terrorism and aiding and abetting clandestine immigration as well. 23. In the prosecution’s appeal it was submitted that, according to the case-law of the Court of Cassation, the constituent elements of the crime of international terrorism were made out even where no act of violence had occurred, the existence of a plan to commit such an act being sufficient.", "In addition, an action could be terrorist in nature even if it was intended to be carried out in the context of an armed conflict, provided that the perpetrators were not members of the “armed forces of a State” or an “insurrectionary group”. In the present case, it was apparent from the documents in the file that the applicant and his associates had procured for themselves and others false documents, weapons, explosives and money in order to commit violent acts intended to affirm the ideological values of fundamentalist Islam. In addition, the accused had maintained contacts with persons and organisations belonging to the sphere of international terrorism and had planned a violent and unlawful action, due to be carried out in October 2002 as part of a “holy war” and in a country other than Italy. Only the defendants’ arrest had prevented the plan from being implemented. Furthermore, at that time the armed conflict in Afghanistan had ended and the one in Iraq had not yet started.", "24. The prosecution further submitted that the applicant’s brother, Mr Fadhal Saadi, had been detained in Iran; the applicant had visited him there in either January or February 2002. After his release Mr Fadhal Saadi had settled in France and stayed in contact with the applicant. He had then died in a suicide bombing, a fact which was a source of pride for the applicant and the other members of his family. That was revealed by the content of the telephone conversations intercepted in the prison where the applicant was being held.", "25. Lastly, the prosecution requested leave to produce new evidence, namely letters and statements from a person suspected of terrorist activities and recordings transmitted by radio microphone from inside a mosque in Milan. 26. On 13 March 2006 the Milan Assize Court of Appeal asked the Constitutional Court to rule on the constitutionality of Article 593 § 2 of the Code of Criminal Procedure. As amended by Law no.", "46 of 20 February 2006, that provision permitted the defence and the prosecution to appeal against acquittals only where, after the close of the first-instance proceedings, new evidence had come to light or been discovered. The Assize Court of Appeal stayed the proceedings pending a ruling by the Constitutional Court. 27. In judgment no. 26 of 6 February 2007, the Constitutional Court declared the relevant provisions of Italian law unconstitutional in that they did not allow the prosecution to appeal against all acquittals and because they provided that appeals lodged by the prosecuting authorities before the entry into force of Law no.", "46 of 20 February 2006 were inadmissible. The Constitutional Court observed in particular that Law no. 46 did not maintain the fair balance that should exist in a criminal trial between the rights of the defence and those of the prosecution. 28. The first hearing before the Milan Assize Court of Appeal was set down for 10 October 2007.", "29. In the meantime, on 11 May 2005, two days after delivery of the Milan Assize Court’s judgment, a military court in Tunis had sentenced the applicant in his absence to twenty years’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. He was also deprived of his civil rights and made subject to administrative supervision for a period of five years. The applicant asserted that he had not learned of his conviction until its operative part was served on his father on 2 July 2005, when the judgment had already become final. 30.", "The applicant alleged that his family and his lawyer were not able to obtain a copy of the judgment by which the applicant had been convicted by the Tunis military court. In a letter of 22 May 2007 to the President of Tunisia and the Tunisian Minister of Justice and Human Rights, his representatives before the Court asked to be sent a copy of the judgment in question. The result of their request is not known. B. The order for the applicant’s deportation and his appeals against its enforcement and for the issue of a residence permit and/or the granting of refugee status 31.", "On 4 August 2006, after being imprisoned uninterruptedly since 9 October 2002, the applicant was released. 32. On 8 August 2006 the Minister of the Interior ordered him to be deported to Tunisia, applying the provisions of Legislative Decree no. 144 of 27 July 2005 (entitled “Urgent measures to combat international terrorism” and later converted to statute law in the form of Law no. 155 of 31 July 2005).", "He observed that “it was apparent from the documents in the file” that the applicant had played an “active role” in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist Islamist cells in Italy and abroad. Consequently, his conduct was disturbing public order and threatening national security. 33. The Minister made it clear that the applicant could not return to Italy except on the basis of an ad hoc ministerial authorisation. 34.", "The applicant was taken to a temporary holding centre (centro di permanenza temporanea) in Milan. On 11 August 2006 the deportation order was confirmed by the Milan justice of the peace. 35. On 11 August 2006 the applicant requested political asylum. He alleged that he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and “political and religious reprisals”.", "By a decision of 16 August 2006, the Head of the Milan police authority (questore) declared the request inadmissible on the ground that the applicant was a danger to national security. 36. On 6 September 2006 the Director of the non-governmental organisation World Organisation Against Torture (known by its French initials – OMCT) wrote to the Italian Prime Minister to tell him the OMCT was “extremely concerned” about the applicant’s situation, and that it feared that, if deported to Tunisia, he would be tried again for the same offences he stood accused of in Italy. The OMCT also pointed out that, under the terms of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. 37.", "On 12 September 2006 the President of the non-governmental organisation Collective of the Tunisian Community in Europe appealed to the Italian government to “end its policy of mass deportation of Tunisian immigrants [who were] practising adherents of religious faiths”. He alleged that the Italian authorities were using inhuman methods and had grounded a number of decisions against Tunisians on their religious convictions. He went on to say that it was “obvious” that on arrival in Tunisia the persons concerned would be “tortured and sentenced to lengthy terms of imprisonment, on account of the fact that the Italian authorities falsely suspect them of terrorism”. The applicant’s name appeared in a list of persons at imminent risk of expulsion to Tunisia which was appended to the letter of 12 September 2006. 38.", "The Chief Constable’s decision of 16 August 2006 (see paragraph 35 above) was served on the applicant on 14 September 2006. The applicant did not appeal. However, on 12 September 2006 he had produced documents, including the OMCT’s letter of 6 September 2006 and the reports on Tunisia by Amnesty International and the US Department of State, requesting that these be passed on to the local refugee status board. On 15 September 2006 the Milan police authority informed the applicant orally that as his asylum request had been refused the documents in question could not be taken into consideration. 39.", "On 14 September 2006, pleading Rule 39 of the Rules of Court, the applicant asked the Court to suspend or annul the decision to deport him to Tunisia. On 15 September 2006 the Court decided to ask the Government to provide it with information, covering in particular the question whether the applicant’s conviction by the Tunis military court was final and also whether in Tunisian law there was a remedy whereby it was possible to obtain the reopening of proceedings or a retrial. 40. The Government’s reply was received at the Registry on 2 October 2006. According to the Italian authorities, in the event of a conviction in the absence of the accused, Tunisian law gave the person convicted the right to have the proceedings reopened.", "The Government referred in particular to a fax of 29 September 2006 from the Italian ambassador in Tunis stating that, according to the information supplied by the Director of International Cooperation at the Tunisian Ministry of Justice, the applicant’s conviction was not final since a person convicted in his absence could appeal against the relevant judgment. 41. On 5 October 2006 the Court decided to apply Rule 39. It asked the Government to stay the applicant’s expulsion until further notice. 42.", "The maximum time allowed for the applicant’s detention with a view to expulsion expired on 7 October 2006 and he was released on that date. However, on 6 October 2006 a new deportation order had been issued against him. On 7 October 2006 this order was served on the applicant, who was then taken back to the Milan temporary holding centre. As the applicant had stated that he had entered Italy from France, the new deportation order named France as the receiving country, not Tunisia. On 10 October 2006 the new deportation order was confirmed by the Milan justice of the peace.", "43. On 3 November 2006 the applicant was released because fresh information indicated that it was impossible to deport him to France. On the same day the Milan Assize Court of Appeal ordered precautionary measures, to take effect immediately after the applicant’s release: he was forbidden to leave Italian territory and required to report to a police station on Mondays, Wednesdays and Fridays. 44. In the meantime, on 27 September 2006, the applicant had applied for a residence permit.", "On 4 December 2006 the Milan police authority replied that this application could not be allowed. It was explained that a residence permit could be issued “in the interests of justice” only at the request of the judicial authorities, where the latter considered that the presence of an alien in Italy was necessary for the proper conduct of a criminal investigation. The applicant had in any case been forbidden to leave Italian territory and was therefore obliged to stay in Italy. Moreover, to obtain a residence permit it was necessary to produce a passport or similar document. 45.", "Before the Court the applicant alleged that the Tunisian authorities had refused to renew his passport, so that all his further attempts to regularise his situation had come to nothing. 46. On a date which has not been specified, the applicant also asked the Lombardy RAC (Regional Administrative Court) to set aside the deportation order of 6 October 2006 and stay its execution. 47. In a decision of 9 November 2006, the Lombardy RAC held that there was no cause to rule on the application for a stay of execution and ordered the file to be transmitted to the Lazio RAC, which had the appropriate territorial jurisdiction.", "48. The Lombardy RAC pointed out among other observations that the European Court of Human Rights had already requested a stay of execution of the deportation order and had consequently provided redress for any prejudice the applicant might allege. 49. According to the information supplied by the applicant on 29 May 2007, the proceedings in the Lazio RAC were still pending on that date. 50.", "On 18 January 2007 the applicant sent a memorial to the Milan police authority pointing out that the European Court of Human Rights had requested a stay of execution of his deportation on account of a real risk that he would be subjected to treatment contrary to Article 3 of the Convention. He therefore asked for a hearing before the local refugee status board with a view to being granted political asylum. According to the information supplied by the applicant on 11 July 2007, there had been no reply to his memorial by that date. In a memorandum of 20 July 2007, the Italian Ministry of the Interior stated that the memorial of 18 January 2007 could not be regarded as a new asylum request or as an appeal against the refusal given by the Milan Chief Constable on 16 August 2006 (see paragraph 35 above). C. The diplomatic assurances requested by Italy from Tunisia 51.", "On 29 May 2007 the Italian embassy in Tunis sent a note verbale to the Tunisian government, requesting diplomatic assurances that if the applicant were to be deported to Tunisia he would not be subjected to treatment contrary to Article 3 of the Convention and would not suffer a flagrant denial of justice. 52. The note in question, written in French, reads as follows: “The Italian embassy presents its compliments to the Ministry of Foreign Affairs and, following the meeting between the Italian ambassador Mr Arturo Olivieri and his Excellency the Minister of Justice and Human Rights Mr Béchir Tekkari, on the occasion of the visit of the Italian Minister of Justice Mr Clemente Mastella, on 28 May 2007, has the honour to request the invaluable cooperation of the Tunisian authorities in reaching a positive development in the following case. The Tunisian national Nassim Saadi, born in Haidra (Tunisia) on 30 November 1974, was served with an order for his deportation from Italy, issued by the Ministry of the Interior on 8 August 2006. After the above order had been issued, Mr Saadi lodged an application with the European Court of Human Rights on 14 September 2006, requesting and obtaining the decision to stay execution of the deportation order.", "His application is based on the argument that, after he had been tried in his absence, he was sentenced to twenty years’ imprisonment for terrorist-related offences, in a judgment given by the Tunis military court on 11 May 2005, served on Mr Saadi’s father on 2 July 2005. Because of his conviction, Mr Saadi contends that if the deportation order were to be enforced he would run the risk of being imprisoned in Tunisia on his arrival, on the basis of an unfair trial, and of being subjected to torture and inhuman and degrading treatment (please find enclosed a copy of the document by which the judgment was served supplied by Mr Saadi). In order to gather all the information necessary to assess the case, the European Court of Human Rights has asked the Italian government to supply a copy of the judgment and wishes to ascertain whether the Italian government intends, before deporting Mr Saadi, to seek diplomatic guarantees from the Tunisian government. In the light of the foregoing, the Italian embassy, counting on the sensitivity of the Tunisian authorities on the question, has the honour to formulate, subject to the judicial prerogatives of the Tunisian State, the following urgent request for guarantees, as an indispensable formal prerequisite for the solution of the case now pending: – if the information given by Mr Saadi concerning the existence of a judgment of 11 May 2005 in which he was found guilty by the Tunis military court corresponds to the truth, please send a full copy of the judgment in question (before 11 July 2007, the date of the hearing before the Court) and confirm that he has the right to appeal, and to be judged by an independent and impartial tribunal, in accordance with a procedure which, taken as a whole, complies with the principles of a fair and public trial; – please give assurances that the fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded; – please give assurances that if he were to be committed to prison he would be able to receive visits from his lawyers and members of his family. In addition, the Italian embassy would be grateful if the Tunisian authorities would keep it informed of the conditions of Mr Saadi’s detention if he were to be committed to prison.", "The way this case is determined will have significant implications for future security policy. The information mentioned above, which the European Court of Human Rights has requested from the Italian government, are indispensable if the deportation is to go ahead. To a certain extent, this case forms a precedent (in relation to numerous other pending cases) and – we are convinced – a positive response by the Tunisian authorities will make it easier to carry out further expulsions in future. While perfectly aware of the delicate nature of the subject, the Italian embassy counts on the understanding of the Tunisian authorities, hoping that their reply will be in the spirit of effective action against terrorism, as part of the friendly relations between our two countries.” 53. The Italian government observed that such assurances had never before been requested from the Tunisian authorities.", "54. On 4 July 2007 the Tunisian Ministry of Foreign Affairs sent a note verbale to the Italian embassy in Tunis. Its content was as follows: “The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to the ambassador’s note verbale no. 2533 of 2 July 2007 concerning Nassim Saadi, currently imprisoned in Italy, has the honour to inform the ambassador that the Tunisian government confirms that it is prepared to accept the transfer to Tunisia of Tunisians imprisoned abroad once their identity has been confirmed, in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes. The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards.” 55.", "A second note verbale, dated 10 July 2007, was worded as follows: “The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to his note verbale no. 2588 of 5 July 2007, has the honour to confirm to him the content of the Ministry’s note verbale no. 511 of 4 July 2007. The Minister for Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.", "The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards.” D. The applicant’s family situation 56. According to the applicant, in Italy he lives with an Italian national, Mrs V., whom he married in a Muslim marriage ceremony. They have an eight-year-old child (born on 22 July 1999), an Italian national, who attends school in Italy. Mrs V. is unemployed and is not at present in receipt of any family allowance. She suffers from a type of ischaemia.", "57. According to a memorandum of 10 July 2007 from the Ministry of the Interior, on 10 February 2007 the applicant married, in a Muslim marriage ceremony, a second wife, Mrs G. While officially resident in via Cefalonia, Milan, at the address occupied by Mrs V., the applicant is said to be separated de facto from both his wives. Since the end of 2006 he has been habitually resident in via Ulisse Dini, Milan, in a flat which he apparently shares with other Tunisians. II. RELEVANT DOMESTIC LAW A.", "Remedies against a deportation order in Italy 58. A deportation order is subject to appeal to the RAC, the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual’s fundamental rights (see, for example, Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I). An appeal to the Consiglio di Stato lies against decisions of the RAC. 59.", "In proceedings before the RAC, a stay of execution of the administrative decision complained of is not automatic, but may be granted if requested (see Sardinas Albo, cited above). However, where – as in the applicant’s case – deportation has been ordered under the terms of Legislative Decree no. 144 of 2005, appeals to the RAC or the Consiglio di Stato cannot stay enforcement of the deportation order (Article 4 §§ 4 and 4 bis of the Legislative Decree). B. Reopening of a trial conducted in the defendant’s absence in Tunisia 60.", "In the French translation produced by the Government, the relevant provisions of the Tunisian Code of Criminal Procedure read as follows: Article 175 “Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment. An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant’s copy. If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days.", "An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded. The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal. The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.” Article 176 “Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.” Article 180 (as amended by Law no. 2004-43 of 17 April 2000) “On appeal, execution of a judgment shall be stayed.", "Where the sentence is capital punishment, the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final.” Article 213 “An appeal shall no longer be admissible, save where the appellant has been prevented from appealing by circumstances beyond his or her control, unless lodged within ten days of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of Article 175, or after expiry of the time allowed where judgment has been given by default, or after notification of the judgment likewise by default. For State counsel and assistant State counsel at courts of appeal the time allowed for appeal shall be sixty days from the date of delivery of the judgment. In addition, on pain of inadmissibility, they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties.” III. INTERNATIONAL TEXTS AND DOCUMENTS A. The cooperation agreement on crime prevention signed by Italy and Tunisia and the association agreement between Tunisia, the European Union and its member States 61.", "On 13 December 2003 the Italian and Tunisian governments signed in Tunis an agreement on crime prevention in which the Contracting Parties undertook to exchange information (particularly with regard to the activities of terrorist groups, migratory flows and the production and use of false documents) and to work towards harmonisation of their domestic legislation. Articles 10 and 16 of the agreement read as follows: Article 10 “The Contracting Parties, in accordance with their respective national legislation, agree that cooperation to prevent crime, as contemplated in the present agreement, will extend to searching for persons who have sought to evade justice and are responsible for criminal offences, and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition.” Article 16 “The present agreement is without prejudice to rights and obligations arising from other international, multilateral or bilateral agreements entered into by the Contracting Parties.” 62. Tunisia also signed in Brussels, on 17 July 1995, an association agreement with the European Union and its member States. The agreement mainly concerns cooperation in the commercial and economic sectors. Article 2 provides that relations between the Contracting Parties, like the provisions of the agreement itself, must be based on respect for human rights and democratic principles, which form an “essential element” of the agreement.", "B. Articles 1, 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees 63. Italy is a party to the 1951 Convention on the Status of Refugees. Articles 1, 32 and 33 of this Convention read 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 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. Guidelines of the Committee of Ministers of the Council of Europe 64. On 11 July 2002, at the 804th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. Point IV of the guidelines, entitled “Absolute prohibition of torture”, reads as follows: “The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.” According to point XII § 2 of this document, “It is the duty of a State that has received a request for asylum to ensure that the possible return (‘refoulement’) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.” D. Amnesty International report on Tunisia 65. In a report concerning the situation in Tunisia in 2006, Amnesty International noted that following a large number of unfair trials at least twelve persons facing terrorism charges had been sentenced to lengthy prison sentences.", "Cases of torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials remained in prison after more than ten years and their state of health was said to have deteriorated. A group of 135 prisoners had been released as a result of an amnesty; they had been imprisoned for more than fourteen years after being convicted in unfair trials of belonging to the banned Islamist organisation Ennahda. Some of these prisoners were in poor health as a result of harsh prison conditions and torture they had undergone before standing trial. 66.", "In December 2006 there had been exchanges of fire to the south of Tunis between the police and alleged members of the Salafist Group for Preaching and Combat. Dozens of people had been killed and police officers had been injured. 67. In June 2006 the European Parliament had called for a meeting of the European Union and Tunisia to discuss the human rights situation in the country. In October 2006 the European Union had criticised the Tunisian government for cancelling an international conference on employment and the right to work.", "68. As regards the “war on terror”, Amnesty International noted that no answer had been given by the Tunisian authorities to a request to visit the country made by the United Nations Special Rapporteur on the promotion and protection of human rights. Persons suspected of terrorist activities had been arrested and tried under what was described as the “controversial” 2003 anti-terrorism law. This anti-terrorism law and the Code of Military Justice had been used against Tunisians repatriated against their will from Bosnia and Herzegovina, Bulgaria and Italy, who were accused of belonging to terrorist organisations operating abroad. In such cases, sometimes decided by the military courts, lawyers’ contact with their clients had been subjected to constantly increasing restrictions.", "The report mentioned cases of prisoners being held incommunicado or being tortured while in police custody; those referred to included Mr Hicham Saadi, Mr Badreddine Ferchichi (who had been deported from Bosnia and Herzegovina) and six members of the “Zarzis group”. 69. Amnesty International went on to criticise severe restrictions of the right to freedom of expression and a risk of harassment and violence against human rights defenders and their families, women wearing Islamic headscarves, and opponents and critics of the government. 70. On the question of the independence of the judiciary, Amnesty International noted that lawyers had publicly protested against a bill then before Parliament creating the “Higher Institute for Lawyers”, to be responsible for training future lawyers (which had previously been done by the Lawyers’ Association and the Association of Tunisian Judges).", "In October 2006 the Head of the European Commission delegation in Tunis had publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary. Judges required the permission of the Secretary of State for Justice to leave the country. 71. On 19 June 2007 Amnesty International issued a statement concerning the applicant which reads as follows: “Amnesty International is concerned that Nassim Saadi would be at risk of torture or other grave human rights violations, should he be removed to Tunisia by the Italian authorities. This concern is based upon our continuous monitoring of human rights violations in Tunisia, including violations committed against people forcibly returned from abroad within the context of the ‘war on terror’.", "Nassim Saadi was sentenced in absentia by the Permanent Military Court in Tunis to twenty years’ imprisonment on charges of belonging to a terrorist organisation operating abroad at a time of peace and incitement to terrorism. Although he will be afforded a retrial before the same military court, military courts in Tunisia violate a number of guarantees for a fair trial. The military court is composed of a presiding judge and four counsellors. Only the president is a civilian judge. There are restrictions on the right to a public hearing.", "The location of the court in a military compound effectively limits access to the public. Individuals convicted before a military court can seek review only before the Military Court of Cassation. Civilian defendants have frequently reported that they had not been informed of their right to legal counsel or, particularly in the absence of a lawyer, have not realised that they were being questioned by an examining judge as he was in military uniform. Defence lawyers have restrictions placed on access to their clients’ files and are obstructed by not being given information about the proceedings such as the dates of hearings. Unlike the ordinary criminal courts, military courts do not allow lawyers access to a register of pending cases.", "(For more information see Amnesty International report, Tunisia: the cycle of Injustice, AI Index MDE 30/001/2003.) The Tunisian authorities also continue to use the controversial 2003 anti-terrorism law to arrest, detain and try alleged terrorist suspects. Those convicted have been sentenced to long prison terms. The anti-terrorism law and provisions of the Military Justice Code have also been used against Tunisian nationals who were returned to Tunisia against their will by authorities in other countries, including Bosnia and Herzegovina, Bulgaria and Italy. Those returned from abroad were arrested by the Tunisian authorities upon arrival and many of them were charged with links to ‘terrorist organisations’ operating outside the country.", "Some were referred to the military-justice system. People who have been recently returned to Tunisia from abroad have been held in incommunicado detention, during which time they have been subjected to torture and other ill-treatment. They have also been sentenced to long prison sentences following unfair trials. In this connection, we provide the following case information for illustration: – Houssine Tarkhani was forcibly returned from France to Tunisia on 3 June 2007 and detained on arrival. He was kept in secret detention in the State Security Department of the Ministry of Interior in Tunis for ten days, during which he was reportedly tortured or otherwise ill-treated.", "He is currently detained in Mornaguia prison awaiting further investigation. Houssine Tarkhani left Tunisia in 1999, and subsequently lived in Germany and, between 2000 and 2006, in Italy. He was arrested at the French-German border on 5 May 2007 as an irregular migrant, and held in a detention centre in the French city of Metz, pending the execution of an expulsion order. On 6 May he was brought before a judge, who authorised his detention for a further fifteen days, and informed him that he was being investigated by the French police on suspicion of ‘providing logistical support’ to a network which assists individuals to travel to Iraq to take part in the armed conflict with the US-led coalition forces there – an allegation which he denies. No charges were ever brought against him in France.", "On the same day, he made a claim for asylum and on 7 May 2007 was taken to the detention centre at Mesnil-Amelot to be detained while his asylum claim was processed. Houssine Tarkhani’s application for asylum had been assessed under an accelerated procedure (‘procèdure prioritaire’), and was rejected on 25 May. Although he appealed before the Commission des Recours des Réfugiés (CRR), Refugees Appeals Board, decisions taken under the accelerated procedure are not delayed while appeals to the CRR are considered, and people who have appealed may be forcibly returned before their appeal has been ruled on. Houssine Tarkhani also made appeals against the decision to the administrative court, but these have failed. – In May 2004, Tunisian national Tarek Belkhirat was returned against his will to Tunisia from France after his request for asylum was rejected.", "He was arrested upon his return to Tunisia and charged under the 2003 anti-terrorism law. In February 2005, the Council of State (Conseil d’Etat), the highest administrative court in France, quashed the order to expel Tarek Belkhirat to Tunisia. In March 2005, he was sentenced in an unfair trial in Tunisia to ten years’ imprisonment for membership of the Tunisian Islamist Front, charges for which he had already served a thirty-six month prison sentence in France. The sentence was reduced to five years on appeal in October 2005. He remains in prison in Tunisia.", "– Tunisian national Adil Rahali was deported to Tunisia from Ireland in April 2004 after his application for asylum was refused. He was arrested on arrival in Tunisia and taken to the State Security Department of the Ministry of the Interior, where he was held in secret detention for several days and reportedly beaten, suspended from the ceiling and threatened with death. Adil Rahali, who had worked in Europe for more than a decade, was charged under the 2003 anti-terrorism law with belonging to a terrorist organisation operating abroad. No investigation is known to have been conducted into Adil Rahali’s alleged torture despite the fact that his lawyer filed a complaint. In March 2005, Adil Rahali was convicted on the basis of ‘confessions’ extracted under torture and sentenced under anti-terrorism legislation to ten years’ imprisonment.", "This sentence was reduced to five years on appeal in September 2005. He remains in prison in Tunisia. – In April 2004, seven young men were convicted, following an unfair trial, of membership of a terrorist organisation, possessing or manufacturing explosives, theft, using banned websites and holding unauthorised meetings. Two others were convicted in absentia. They were among dozens of people arrested in Zarzis, southern Tunisia, in February 2003, most of whom had been released the same month.", "The trial failed to respect international fair-trial standards. According to defence lawyers, most arrest dates in police reports were falsified, and in one case the place of arrest was falsified. There were no investigations into allegations that the defendants were beaten, suspended from the ceiling and threatened with rape. The convictions rested almost entirely on confessions extracted under duress. The defendants denied all charges brought against them in court.", "In July 2004 the Tunis Appeal Court reduced the sentences of six of them from nineteen years and three months to thirteen years’ imprisonment. Their appeal was rejected by the Court of Cassation in December 2004. Another defendant, who was a minor at the time of the arrest, had his sentence reduced to twenty-four months in prison. They were all released in March 2006 following a presidential pardon. The human rights violations that were perpetrated in these cases are typical of the sort of violations that remain current in Tunisia and affect people arrested inside the country as well as those returned from abroad in connection with alleged security or political offences.", "We consider, therefore, that Nassim Saadi would be at serious risk of torture and unfair trial if he were to be transferred to the custody of the Tunisian authorities.” 72. A similar statement was issued by Amnesty International on 23 July 2007. E. Report on Tunisia by Human Rights Watch 73. In its 2007 report on Tunisia, Human Rights Watch asserted that the Tunisian government used the threat of terrorism and religious extremism as a pretext for repression of their opponents. There were constant, credible allegations of the use of torture and ill-treatment against suspects in order to obtain confessions.", "It was also alleged that convicted persons were deliberately subjected to ill-treatment. 74. Although many members of the proscribed Islamist party Ennahda had been released from prison after an amnesty, there were more than 350 political prisoners. There had been mass arrests of young men, who had then been prosecuted under the 2003 anti-terrorism law. Released political prisoners were monitored very closely by the authorities, who refused to renew their passports and denied them access to most jobs.", "75. According to Human Rights Watch, the judicial system lacked independence. Investigating judges questioned suspects without their lawyers being present, and the prosecution and judiciary turned a blind eye to allegations of torture, even when made through a lawyer. Defendants were frequently convicted on the basis of confessions made under duress or of statements by witnesses whom they had not been able to examine or have examined. 76.", "Although the International Committee of the Red Cross was continuing its programme of visits to Tunisian prisons, the authorities were refusing independent human rights defence organisations access to places of detention. The undertaking given in April 2005 to allow visits by Human Rights Watch had remained a dead letter. 77. The 2003 anti-terrorism law gave a very broad definition of “terrorism”, which could be used to prosecute persons merely for exercising their right to political dissent. Since 2005 more than 200 persons had been charged with planning to join jihadist movements abroad or organising terrorist activities.", "The arrests had been carried out by plain-clothes police and the families of those charged had been left without news of their relatives for days or sometimes weeks. During their trials these defendants had overwhelmingly claimed the police had extracted their statements under torture or threat of torture. These defendants had been sentenced to lengthy terms of imprisonment, but it had not been established that any of them had committed a specific act of violence or that they possessed weapons or explosives. 78. In February 2006, six persons accused of belonging to the “Zarzis” terrorist group had been granted a presidential amnesty after serving three years of their prison sentences They had been convicted on the basis of confessions which they alleged they had been forced into making, and of the fact that they had copied from the Internet instructions for making bombs.", "In 2005 Mr Ali Ramzi Bettibi had been sentenced to four years’ imprisonment for cutting and pasting on an online forum a statement by an obscure group threatening bomb attacks if the President of Tunisia agreed to host a visit by the Prime Minister of Israel. 79. Lastly, Human Rights Watch reported that on 15 June 2006 the European Parliament had adopted a resolution deploring the repression of human rights activists in Tunisia. F. Activities of the International Committee of the Red Cross 80. The International Committee of the Red Cross signed an agreement with the Tunisian authorities on 26 April 2005 giving them permission to visit prisons and assess conditions there.", "The agreement came one year after the authorities’ decision to permit prison visits by only the International Committee of the Red Cross, an organisation – described as “strictly humanitarian” – which was required to maintain confidentiality about its findings. The agreement between the Tunisian government and the International Committee of the Red Cross concerned all prison establishments in Tunisia, “including remand prisons and police cells”. 81. On 29 December 2005 Mr Bernard Pfefferlé, the regional delegate of the International Committee of the Red Cross for Tunisia/North Africa, said that the Committee had been able to visit “without hindrance” about a dozen prisons and meet prisoners in Tunisia. Mr Pfefferlé said that, since the beginning of the inspection in June 2005, a team from the International Committee of the Red Cross had travelled to nine prisons, two of them twice, and had met half of the prisoners scheduled to be visited.", "Refusing to give further details, “on account of the nature of [their] agreements”, he nevertheless commented that the agreements in question authorised the International Committee of the Red Cross to visit all prisons and meet prisoners “quite freely and according to [its own] free choice”. G. Report of the US Department of State on human rights in Tunisia 82. In its report on human rights practices published on 8 March 2006, the US Department of State criticised violations of fundamental rights by the Tunisian government. 83. Although there had been no politically motivated killings attributable to the Tunisian authorities, the report commented critically on two cases: Mr Moncef Ben Ahmed Ouahichi had died while in police custody and Mr Bedreddine Rekeii after being released from police custody.", "84. Referring to the information gathered by Amnesty International, the US Department of State described the various forms of torture and ill-treatment inflicted by the Tunisian authorities in order to secure confessions. These included: electric shocks; forcing the victim’s head under water; beatings with fists, sticks and police batons; hanging from the cell bars until loss of consciousness; and cigarette burns. In addition, police officers sexually assaulted the wives of Islamist prisoners as a means of obtaining information or imposing a punishment. 85.", "However, these acts of torture were very difficult to prove, because the authorities refused to allow the victims access to medical treatment until the traces of ill-treatment had faded. Moreover, the police and the judicial authorities regularly refused to follow up allegations of ill-treatment, and confessions extracted under torture were regularly admitted as evidence by the courts. 86. Political prisoners and religious fundamentalists were the main targets of torture, which was usually inflicted while the victims were in police custody, particularly inside the Ministry of the Interior. The report referred to a number of cases of torture complained of in 2005 by non-governmental organisations, including the Conseil national pour les libertés en Tunisie and the Association pour la lutte contre la torture en Tunisie.", "In spite of complaints by the victims, no investigation into these abuses had been conducted by the Tunisian authorities and no agent of the State had been prosecuted. 87. The conditions of incarceration in Tunisian prisons fell well below international standards. Prisoners were held in cramped conditions and had to share beds and toilets. The risk of catching contagious diseases was very high on account of the overcrowding and the unhygienic conditions.", "Prisoners did not have access to appropriate medical treatment. 88. Political prisoners were often transferred from one establishment to another, which made visits by their families difficult and discouraged any investigation of their conditions of detention. 89. In April 2005, after lengthy negotiations, the Tunisian government had signed an agreement permitting the International Committee of the Red Cross to visit prisons.", "These visits had begun in June. In December the Red Cross declared that the prison authorities had respected the agreement and had not placed obstacles in the way of the visits. 90. On the other hand, the same possibility was not extended to Human Rights Watch, despite a verbal undertaking given in April 2005 by the Tunisian government. The government had also undertaken to prohibit prolonged periods of solitary confinement.", "91. Although explicitly forbidden by Tunisian law, arbitrary arrest and imprisonment occurred. By law, the maximum period allowed for detention in police custody was six days, during which time the prisoners’ families had to be informed. However, these rules were frequently ignored. Persons detained by the police were very often held incommunicado and the authorities extended the duration of police custody by recording a false date of arrest.", "92. The Tunisian government denied that there were any political prisoners, so their exact number was impossible to determine. However, the Association internationale de soutien aux prisonniers politiques had drawn up a list of 542 political prisoners, nearly all of whom were said to be religious fundamentalists belonging to proscribed opposition movements who had been arrested for belonging to illegal organisations which endangered public order. 93. The report mentioned a wide range of infringements of the right to respect for the private and family life of political prisoners and their families, including censorship of correspondence and telephone calls and the confiscation of identity documents.", "H. Other sources 94. Before the Court, the applicant produced a document from the Association internationale de soutien aux prisonniers politiques concerning the case of a young man named Hichem Ben Said Ben Frej who was alleged to have leapt from the window of a police station on 10 October 2006 shortly before he was due to be interrogated. Mr Ben Frej’s lawyer asserted that his client had been savagely tortured and held in the cells of the Ministry of the Interior in Tunis for twenty-four days. Similar allegations are to be found in statements by local organisations for the defence of prisoners’ and women’s rights and in numerous press cuttings. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 95. The applicant submitted that enforcement of his deportation would expose him to the risk of 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.” 96. The Government rejected that argument. A. Admissibility 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 98.", "The applicant submitted that it was “a matter of common knowledge” that persons suspected of terrorist activities, in particular those connected with Islamist fundamentalism, were frequently tortured in Tunisia. He had lodged a request for political asylum which had been refused by the Milan police authority without his being interviewed by the Italian refugee-status board. His attempts to obtain a residence permit had failed because the Tunisian consulate had refused to renew his passport, a document which the Italian authorities had asked him to produce. In the aggregate these circumstances amounted to “persecution”. 99.", "In addition, the investigations conducted by Amnesty International and by the US Department of State showed that torture was practised in Tunisia and that some persons deported there had quite simply disappeared. The numerous press articles and witness accounts he had produced condemned the treatment of political prisoners and their families. 100. The applicant’s family had received a number of visits from the police and was constantly subject to threats and provocations. His sister had twice tried to kill herself because of this.", "101. In view of the serious risks to which he would be exposed if he were to be deported, the applicant considered that a mere reminder of the treaties signed by Tunisia could not be regarded as sufficient. (b) The Government 102. The Government considered it necessary in the first place to provide an account of the background to the case. After the attacks of 11 September 2001 on the Twin Towers in New York, the Italian police, after it had been tipped off by intelligence services, uncovered an international network of militant Islamists, mainly composed of Tunisians, and placed it under surveillance.", "In May 2002 one of the leaders of this network, Mr Faraj Faraj Hassan, was arrested in London. The applicant had in the meantime left Milan for Iran, where he had spent time in an al-Qaeda training camp. He then returned to Italy, from where he frequently travelled to the Côte d’Azur. There, with the help of another Tunisian living in San Remo, Mr Imed Zarkaoui, he met his brother, Mr Fadhal Saadi. 103.", "Mr Zarkaoui had been given the job of finding fulminate of mercury to make detonators, while in Italy another accomplice was seeking information about night-filming cameras. Contact was established with Malaysia, where the group which was to carry out the attacks were standing by, and weapons were distributed to some militants. The Islamist cell to which the applicant belonged had embarked on a large-scale enterprise involving the production of false identity papers and their distribution to its members. The Government rejected the applicant’s argument that the offence – forgery – of which he had been convicted in Italy was not linked to the activity of terrorist groups; in that connection they pointed out that although the applicant and one of his co-defendants held legal residence permits they had provided themselves with false papers. 104.", "In that context, in October 2002, a number of European police forces launched “Operation Bazar”, as a result of which the applicant, Mr Zarkaoui and three other persons were arrested in Italy. Mr Fadhal Saadi managed to evade an attempt by the French police to arrest him. He was later to die in a suicide bombing in Iraq. When the applicant’s family informed him of this, he was delighted to learn that his brother had died a “martyr” in the war against “the infidel”. In the criminal proceedings against the applicant in Italy, the prosecution was convinced of three things: that the cell he belonged to was associated with al-Qaeda: that it was preparing an attack against an unidentified target; and that it was receiving instructions from abroad.", "105. The Government next observed that a danger of death or the risk of being exposed to torture or to inhuman and degrading treatment must be corroborated by appropriate evidence. However, in the present case the applicant had neither produced precise information in that regard nor supplied detailed explanations, confining himself to describing an allegedly general situation in Tunisia. The “international sources” cited by the applicant were indeterminate and irrelevant. The same was true of the press articles he had produced, which came from unofficial circles with a particular ideological and political slant.", "As this information had not been checked, nor had an explanation been requested from the Tunisian government, it had no probative value. The provocations that the applicant’s family had allegedly suffered at the hands of the Tunisian police had nothing to do with what the applicant sought to prove before the Court. 106. The Amnesty International report cited three isolated cases, connected to the prevention of terrorism, which did not disclose “anything to be concerned about” (certain persons had been convicted of terrorism or were awaiting trial). Regarding the allegations of ill-treatment, the report used the conditional tense or expressions such as “it seems”.", "There was therefore no certainty as to what had happened. The superficial nature of the report was “obvious” in the passages concerning Italy, which described as a human rights violation the deportation to Syria of Muhammad Said Al‑Shari, whose application to the Court had been rejected as manifestly ill-founded (see Al-Shari and Others v. Italy (dec.), no. 57/03, 5 July 2005). 107. The report by the US Department of State cited (a) the case of Moncef Louhici or Ouahichi, in which the investigation into a complaint by the family of a person allegedly killed by the police was still in progress; (b) the case of Bedreddine Rekeii or Reguii, which concerned crimes without a political motivation, and about which the Tunisian authorities had provided complete and reassuring details; (c) the case of the “Bizerte” group, in which five of the eleven defendants had been acquitted on appeal and the sentences of the other six had been considerably reduced; and (d) imprecisely identified cases to which vague reference was made or cases involving offences without political motivation or concerning freedom of expression or association.", "108. The Government argued that these documents did not portray Tunisia as a kind of “hell”, the term used by the applicant. The situation in the country was, by and large, not very different from that in certain States which had signed the Convention. 109. The misfortunes of Mr Hichem Ben Said Ben Frej, cited by the applicant (see paragraph 94 above), were not relevant in the present case, since he had committed suicide.", "110. The Government further observed that in numerous cases concerning expulsion to countries (Algeria in particular) where subjection to ill-treatment as a regular practice seemed much more alarming than in Tunisia, the Court had rejected the applicants’ allegations. 111. The Government also noted that Tunisia had ratified numerous international instruments for the protection of human rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all adopted by the United Nations. Under Article 32 of the Tunisian Constitution, international treaties took precedence over statute law.", "In addition, Italy and Tunisia had signed bilateral agreements on the question of emigration and combating transnational crime, including terrorism (see paragraph 61 above). That presupposed a common basis of respect for fundamental rights. The effectiveness of the agreements concerned would be jeopardised if the Court were to assert as a principle that Tunisians could not be deported. 112. Tunisia had also signed an association agreement with the European Union.", "A precondition for implementation of that agreement was respect for fundamental freedoms and democratic principles (see paragraph 62 above). The European Union was an international organisation which, according to the Court’s case-law, was presumed to provide a level of protection of fundamental rights “equivalent” to that provided by the Convention. Moreover, the Tunisian authorities permitted the International Committee of the Red Cross and “other international bodies” to visit prisons (see paragraphs 80-81 above). In the Government’s submission, it could be presumed that Tunisia would not default on its obligations under international treaties. 113.", "In Tunisia the terrorist danger was a grim reality, as shown by the explosion on the island of Djerba on 11 April 2002, for which al-Qaeda had claimed responsibility. To meet that danger the Tunisian authorities had, like some European States, enacted a law for the prevention of terrorism. 114. In these circumstances, the “benefit of the doubt” should be given to the State which intended to deport the applicant and whose national interests were threatened by his presence. In that connection, account had to be taken of the scale of the terrorist threat in the world of today and of the objective difficulties of combating it effectively, regard being had not only to the risks in the event of deportation but also to those which would arise in the absence of deportation.", "In any event, the Italian legal system provided safeguards for the individual – including the possibility of obtaining refugee status – which made expulsion contrary to the requirements of the Convention “practically impossible”. 115. At the hearing before the Court the Government had agreed in substance with the arguments of the third-party intervener (see paragraphs 117-23 below), observing that, before the order for the applicant’s deportation was made, the applicant had neither mentioned the risk of ill-treatment in Tunisia, although he must have been aware of it, nor requested political asylum. His allegations had accordingly come too late to be credible. 116.", "Lastly, the Government observed that, even though there was no extradition request or a situation raising concern regarding respect for human rights (such as, for example, the one described in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V), Italy had sought diplomatic assurances from Tunisia (see paragraphs 51-52 above). In response, Tunisia had given an undertaking to apply in the present case the relevant Tunisian law (see paragraphs 54-55 above), which provided for severe punishment of acts of torture or ill-treatment and extensive visiting rights for a prisoner’s lawyer and family. 2. The third-party intervener 117. The United Kingdom Government observed that in Chahal (cited above, § 81) the Court had stated the principle that, in view of the absolute nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not be weighed against the reasons (including the protection of national security) put forward by the respondent State to justify expulsion.", "Yet because of its rigidity that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures. The Government observed in that connection that it was unlikely that any State other than the one of which the applicant was a national would be prepared to receive into its territory a person suspected of terrorist activities. In addition, the possibility of having recourse to criminal sanctions against the suspect did not provide sufficient protection for the community. 118. The individual concerned might not commit any offence (or else, before a terrorist attack, only minor ones) and it could prove difficult to establish his involvement in terrorism beyond a reasonable doubt, since it was frequently impossible to use confidential sources or information supplied by intelligence services.", "Other measures, such as detention pending expulsion, placing the suspect under surveillance or restricting his freedom of movement, provided only partial protection. 119. Terrorism seriously endangered the right to life, which was the necessary precondition for enjoyment of all other fundamental rights. According to a well-established principle of international law, States could use immigration legislation to protect themselves from external threats to their national security. The Convention did not guarantee the right to political asylum.", "This was governed by the 1951 Convention relating to the Status of Refugees, which explicitly provided that there was no entitlement to asylum where there was a risk for national security or where the asylum seeker had been responsible for acts contrary to the principles of the United Nations. Moreover, Article 5 § 1 (f) of the Convention authorised the arrest of a person “against whom action is being taken with a view to deportation”, and thus recognised the right of States to deport aliens. 120. It was true that the protection against torture and inhuman or degrading treatment or punishment provided by Article 3 of the Convention was absolute. However, in the event of expulsion, the treatment in question would be inflicted not by the signatory State but by the authorities of another State.", "The signatory State was then bound by a positive obligation of protection against torture implicitly derived from Article 3. Yet in the field of implied positive obligations, the Court had accepted that the applicant’s rights must be weighed against the interests of the community as a whole. 121. In expulsion cases the degree of risk in the receiving country depended on a speculative assessment. The level required to accept the existence of the risk was relatively low and difficult to apply consistently.", "Moreover, Article 3 of the Convention prohibited not only extremely serious forms of treatment, such as torture, but also conduct covered by the relatively general concept of “degrading treatment”. And the nature of the threat presented by an individual to the signatory State also varied significantly. 122. In the light of the foregoing considerations, the United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in Chahal (which did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention) had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment.", "That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations must influence the standard of proof required from the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned must prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. That interpretation was compatible with the wording of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which had been based on the case-law of the Court itself, and took account of the fact that in expulsion cases it was necessary to assess a possible future risk.", "123. Lastly, the United Kingdom Government emphasised that Contracting States could obtain diplomatic assurances that an applicant would not be subjected to treatment contrary to the Convention. Although, in the above-mentioned Chahal case, the Court had considered it necessary to examine whether such assurances provided sufficient protection, it was probable, as had been shown by the opinions of the majority and the minority of the Court in that case, that identical assurances could be interpreted differently. 3. The Court’s assessment (a) General principles (i) Responsibility of Contracting States in the event of expulsion 124.", "It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI). 125.", "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 (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997‑III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no.", "1948/04, § 135, 11 January 2007). 126. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos.", "46827/99 and 46951/99, § 67, ECHR 2005-I). 127. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (see Ireland v. the United Kingdom, 18 January 1978, § 163, Series A no.", "25; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005-III). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim’s conduct (see Chahal, cited above, § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Indelicato v. Italy, no.", "31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115-16, ECHR 2006-IX). (ii) Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention 128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu (see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no.", "45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court’s examination of the existence of a real risk must necessarily be a rigorous one (see Chahal, cited above, § 96). 129. 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. 130. 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). 131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources, including the US Department of State (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, ECHR 2005-VI; and Al-Moayad v. Germany (dec.), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68).", "132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49). 133. With regard to the material date, 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 expulsion. However, 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 Chahal, cited above, §§ 85-86, and Venkadajalasarma v. the Netherlands, no.", "58510/00, § 63, 17 February 2004). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive. (iii) The concepts of “torture” and “inhuman or degrading treatment” 134. According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.", "The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). 135.", "In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). 136. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aydın v. Turkey, 25 September 1997, § 82, Reports 1997-VI, and Selmouni, cited above, § 96).", "(b) Application of the above principles to the present case 137. The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence (see Chahal, cited above, § 79, and Shamayev and Others, cited above, § 335). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3. 138.", "Accordingly, the Court cannot accept the argument of the United Kingdom Government, supported by the Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (see paragraphs 120 and 122 above). Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 127 above). It must therefore reaffirm the principle stated in Chahal (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80, and paragraph 63 above).", "Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (see paragraph 64 above). 139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of “risk” and “dangerousness” in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not.", "The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill-treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test. 140. With regard to the second branch of the United Kingdom Government’s arguments, to the effect that where an applicant presents a threat to national security stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual.", "The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present one that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 (see paragraphs 125 and 132 above and the case-law cited in those paragraphs). 141. The Court further observes that similar arguments to those put forward by the third-party intervener in the present case have already been rejected in the Chahal judgment cited above. Even if, as the Italian and United Kingdom Governments asserted, the terrorist threat has increased since that time, that circumstance would not call into question the conclusions of the Chahal judgment concerning the consequences of the absolute nature of Article 3.", "142. Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment (see Jabari, cited above, § 39) in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. 143.", "In the present case the Court has had regard, firstly, to the reports of Amnesty International and Human Rights Watch on Tunisia (see paragraphs 65-79 above), which describe a disturbing situation. The conclusions of those reports are corroborated by the report of the US Department of State (see paragraphs 82-93 above). In particular, these reports mention numerous and regular cases of torture and ill-treatment meted out to persons accused under the 2003 Prevention of Terrorism Act. The practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3. It is reported that allegations of torture and ill-treatment are not investigated by the competent Tunisian authorities, that they refuse to follow up complaints and that they regularly use confessions obtained under duress to secure convictions (see paragraphs 68, 71, 73-75, 84 and 86 above).", "Bearing in mind the authority and reputation of the authors of these reports, the seriousness of the investigations by means of which they were compiled, the fact that on the points in question their conclusions are consistent with each other and that those conclusions are corroborated in substance by numerous other sources (see paragraph 94 above), the Court does not doubt their reliability. Moreover, the Government have not adduced any evidence or reports capable of rebutting the assertions made in the sources cited by the applicant. 144. The applicant was prosecuted in Italy for participation in international terrorism and the deportation order against him was issued by virtue of Legislative Decree no. 144 of 27 July 2005 entitled “urgent measures to combat international terrorism” (see paragraph 32 above).", "He was also sentenced in Tunisia, in his absence, to twenty years’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. The existence of that sentence was confirmed by Amnesty International’s statement of 19 June 2007 (see paragraph 71 above). 145. The Court further notes that the parties do not agree on the question whether the applicant’s trial in Tunisia could be reopened. The applicant asserted that it was not possible for him to appeal against his conviction with suspensive effect, and that, even if he could, the Tunisian authorities could imprison him as a precautionary measure (see paragraph 154 below).", "146. In these circumstances, the Court considers that in the present case substantial grounds have been shown for believing that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention if he were to be deported to Tunisia. That risk cannot be excluded on the basis of other material available to the Court. In particular, although it is true that the International Committee of the Red Cross has been able to visit Tunisian prisons, that humanitarian organisation is required to maintain confidentiality about its fieldwork (see paragraph 80 above) and, in spite of an undertaking given in April 2005, similar visiting rights have been refused to the independent human rights protection organisation Human Rights Watch (see paragraphs 76 and 90 above). Moreover, some of the acts of torture reported allegedly took place while the victims were in police custody or pre-trial detention on the premises of the Ministry of the Interior (see paragraphs 86 and 94 above).", "Consequently, the visits by the International Committee of the Red Cross cannot exclude the risk of subjection to treatment contrary to Article 3 in the present case. 147. The Court further notes that on 29 May 2007, while the present application was pending before it, the Italian government asked the Tunisian government, through the Italian embassy in Tunis, for diplomatic assurances that the applicant would not be subjected to treatment contrary to Article 3 of the Convention (see paragraphs 51-52 above). However, the Tunisian authorities did not provide such assurances. At first they merely stated that they were prepared to accept the transfer to Tunisia of Tunisians detained abroad (see paragraph 54 above).", "It was only in a second note verbale, dated 10 July 2007 (that is, the day before the Grand Chamber hearing), that the Tunisian Ministry of Foreign Affairs observed that Tunisian laws guaranteed prisoners’ rights and that Tunisia had acceded to “the relevant international treaties and conventions” (see paragraph 55 above). In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention. 148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.", "149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of the Convention if it were enforced. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 150. The applicant alleged that the criminal proceedings against him in Tunisia had not been fair and that his expulsion would expose him to the risk of a flagrant denial of justice.", "He relied on Article 6 of the Convention, the relevant parts of which provide: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 151. The Government rejected that argument. A. Admissibility 152.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 153. The applicant submitted that there was a serious risk of a denial of justice in Tunisia, where the minimal safeguards provided by international law were disregarded. All Tunisians accused in Italy of terrorist activities had had unfair trials after being repatriated. The applicant cited as typical in that respect the case of Mr Loubiri Habib, who had been acquitted of terrorism charges by the Italian courts but imprisoned in Tunisia and deprived of the possibility of seeing his family. Mr Loubiri had succeeded in obtaining “revision” of the Tunisian criminal proceedings which had resulted in his conviction, but the revision proceedings in the Military High Court in Tunis had resulted in a substantial increase in his sentence, from ten to thirty years’ imprisonment.", "154. The applicant further observed that the operative part of the judgment pronouncing his conviction in absentia had been served on his father, Mr Mohamed Cherif, on 2 July 2005. As a result, an appeal was no longer possible. In any event, even supposing that an appeal was possible and that such an appeal could stay execution of the sentence, that would not prevent the Tunisian authorities from imprisoning him as a precautionary measure. Moreover, in view of the serious infringements of political prisoners’ civil rights in Tunisia, even the theoretical possibility of an appeal out of time could not exclude the risk of a flagrant denial of justice.", "In addition, it could not be known with certainty whether the court having jurisdiction to hear such an appeal would be a civilian or a military court of appeal. 155. Lastly, the applicant noted that the trial had been conducted in Tunisia in a military court and that the defendant in such proceedings had no possibility of adducing evidence, appointing a lawyer or addressing the court. Moreover, in the present case, neither his family nor his lawyers had been able to obtain a copy of the military court’s judgment (see paragraph 30 above). (b) The Government 156.", "The Government asserted that because the file did not contain the original or a certified copy of the judgment against the applicant given in Tunisia it was impossible to check whether the information he had supplied was correct. They further submitted that an expulsion could engage the responsibility of the Contracting State under Article 6 only in exceptional circumstances, in particular where it was apparent that any conviction in the receiving country would amount to a “flagrant” denial of justice, which was not the position in the present case. On the other hand, a Contracting State was not required to establish whether proceedings conducted outside its territory satisfied each of the conditions laid down in Article 6. To rule otherwise would run counter to the current trend, encouraged by the Court itself, of strengthening international mutual assistance in the judicial field. 157.", "Under the relevant provisions of Tunisian law, a person convicted in his absence was entitled to have the proceedings reopened. The right to a reopening of the proceedings could be exercised in good time and in accordance with the requirements of Article 6. In particular, a person convicted in his absence who was living abroad could appeal within thirty days of the judgment in absentia being served. Where such service had not been effected, an appeal was always admissible and would stay execution of the sentence. Furthermore, the possibility of appealing against a conviction in absentia in Tunisia was confirmed by the declarations of the Director of International Cooperation at the Tunisian Ministry of Justice, which were reassuring on the point (see paragraph 40 above).", "In addition, the applicant had not adduced any evidence that in the light of the relevant rules of Tunisian law there had been shown to be substantial grounds for believing that his trial had been conducted in conditions contrary to the principles of fair trial. 158. Admittedly, in the States party to the Convention, trial before a military court might raise an issue under Article 6. However, in the case of an expulsion, an applicant had to prove that the denial of justice he feared would be “flagrant”. Such proof had not been produced in the present case.", "In addition, in December 2003 Tunisia had amended its domestic provisions relating to terrorist crimes committed by civilians, with the result that military judges had been replaced by civilian judges and an investigating judge took part in the investigation. 159. Lastly, the Government argued that the case of Mr Loubiri, cited by the applicant, was not relevant as an increase of the sentence on appeal was something that could occur even in those countries which were most scrupulously compliant with the Convention. 2. The Court’s assessment 160.", "The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 149 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 161. The applicant alleged that his expulsion to Tunisia would deprive his partner and his son of his presence and assistance.", "He relied on 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.” 162. The Government rejected that argument.", "A. Admissibility 163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 164. The applicant observed that he had a family life in Italy which would be disrupted by enforcement of his expulsion: he had been living with Mrs V. since 1998 and their child had been born the following year. At that time he had already requested a residence permit, which was not issued until 2001. When that permit expired he had tried unsuccessfully to regularise his situation in order to find work.", "The applicant’s child attended school in Italy, which would not be possible in Tunisia, where the applicant himself was at risk of imprisonment or even death. Mrs V. had been out of work for about a year as she suffered from a serious form of ischaemia, which frequently made it necessary for her to be taken into hospital and also prevented her from travelling to Tunisia. The applicant was therefore the family’s sole means of financial support. 165. Any allegation concerning the applicant’s dangerousness to society had been refuted by his acquittal at first instance on the charge of international terrorism.", "As matters stood, this was the only judicial decision given in the proceedings against him, since the appeal proceedings were still pending. No new evidence had been adduced by the Government. 166. Moreover, the authorities had many other means to keep an eye on the applicant, expulsion being a measure to be adopted only in extreme cases. In that connection, the applicant pointed out that, since 3 November 2006, he had to report three times a week to a police station in Milan and that he had been forbidden to leave Italian territory (see paragraph 43 above).", "He had always complied with these obligations and had thus been able to obtain the return of his driving licence, which had been withdrawn from him – illegally in his submission – by the vehicle licensing authority (motorizzazione civile). (b) The Government 167. The Government submitted that account had to be taken of the following facts: (a) the applicant’s family unit had been created at a time when his presence in Italy was unlawful, as he had had a son by an Italian woman in 1999, whereas the residence permit granted to him for family reasons had not been issued until 29 December 2001; (b) the child had not attended school for very long in Italy and had had no significant exposure to Italian culture (he was currently in the second year of primary school), so that he would be able to continue to attend school in Tunisia; (c) the applicant had never lived with Mrs V. and his son: they had lived in Arluno, until 7 October 2002, when they moved to Milan; the applicant had never lived in Arluno, had often travelled abroad, had been arrested on 9 October 2002 and had married another woman in a Muslim ceremony (see paragraph 57 above); and (d) the unit of family life could be preserved outside Italian territory, given that neither the applicant nor Mrs V. were in work in Italy. 168. The interference in the applicant’s family life had a legal basis in domestic law, namely Law no.", "155 of 2005. In addition, account had to be taken of the negative influence which, because of his personality and the scale of the terrorist danger, the applicant represented for national security, and of the particular importance which should be attached to the prevention of serious crime and disorder. Any interference with the applicant’s right to respect for his family life therefore pursued a legitimate aim and was necessary in a democratic society. 169. In addition, no disproportionate or excessive burden had been imposed on the applicant’s family unit.", "In the context of crime-prevention policy, the legislature had to enjoy broad latitude to rule both on the existence of a problem of public interest and on the choice of arrangements for the application of an individual measure. Organised crime of a terrorist nature had reached, in Italy and in Europe, very alarming proportions, to the extent that the rule of law was under threat. Administrative measures (such as deportation) were indispensable for effective action against the phenomenon. Deportation presupposed the existence of “sufficient evidence” that the person under suspicion was supporting or assisting a terrorist organisation. The Minister of the Interior could not rely on mere suspicions but had to establish the facts and assess them objectively.", "All the material in the file suggested that that assessment, in the present case, had been correct and not arbitrary. The evidence used in the administrative deportation proceedings was the evidence taken in the course of public and adversarial proceedings in the Milan Assize Court. During those criminal proceedings the applicant had had the opportunity, through his lawyer, of raising objections and submitting the evidence he considered necessary to safeguard his interests. 2. The Court’s assessment 170.", "The Court observes its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 149 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 171.", "The applicant submitted that his expulsion would be neither “necessary in the interests of public order” nor “grounded on reasons of national security”. He alleged a violation of Article 1 of Protocol No. 7, which provides: “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.” 172. The Government rejected that argument. A. Admissibility 173. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Arguments of the parties (a) The applicant 174. The applicant submitted that he was lawfully resident in Italian territory.", "He argued that the condition of “lawful residence” should be assessed by reference to the situation at the time of the deportation decision. When arrested he had a valid residence permit, which expired only because he was in prison. He had subsequently attempted to regularise his situation, but had been prevented from doing so on account of his internment in the temporary holding centre. 175. The applicant’s situation could now be regularised, since the terrorism charges had not led to his conviction, he was cohabiting with his Italian partner and son, and was able to work.", "However, any administrative step he might take was blocked by the fact that he had no document which could prove his nationality and could never obtain one from the Tunisian authorities (see paragraph 45 above). 176. The applicant submitted that he was being prevented from exercising the rights listed in paragraph 1 (a), (b) and (c) of Article 1 of Protocol No. 7, whereas his expulsion could not be regarded as “necessary in the interests of public order” or “grounded on reasons of national security”. In that connection, he observed that the considerations of the Minister of the Interior were contradicted by the Milan Assize Court, which had acquitted him of international terrorism.", "In any event, the Government had not adduced any evidence of the existence of dangers to national security or public order, so that the decision to take him to a temporary holding centre with a view to his expulsion had been “unlawful”. (b) The Government 177. The Government observed that, according to the explanatory report accompanying Article 1 of Protocol No. 7, the word “lawfully” referred to the domestic legislation of the State concerned. It was therefore domestic legislation which should determine the conditions a person had to satisfy in order for his or her presence within the national territory to be considered “lawful”.", "In particular, an alien whose admission and stay had been made subject to certain conditions, for example a fixed period, and who no longer complied with those conditions could not be regarded as being still “lawfully” present in the State’s territory. Yet after 11 October 2002, a date which preceded the deportation order, the applicant no longer had a valid residence permit authorising his presence in Italy. He was therefore not “an alien lawfully resident in the territory” within the meaning of Article 1 of Protocol No. 7, which was accordingly not applicable. 178.", "The Government further observed that the deportation order had been issued in accordance with the rules established by the relevant legislation, which required a simple administrative decision. The law in question was accessible, its effects were foreseeable and it offered a degree of protection against arbitrary interference by the public authorities. The applicant had also had the benefit of “minimum procedural safeguards”. He had been represented before the justice of the peace and the Regional Administrative Court by his lawyer, who had been able to submit reasons why he should not be deported. A deportation order had also been issued against the applicant when he was sentenced to four years and six months’ imprisonment, and hence after adversarial judicial proceedings attended by all the safeguards required by the Convention.", "179. In any event, the Government submitted that the applicant’s deportation was necessary in the interests of national security and the prevention of disorder. They argued that these requirements were justified in the light of the information produced in open court during the criminal proceedings against the applicant and pointed out that the standard of proof required for the adoption of an administrative measure (a deportation order issued by the Minister of the Interior by virtue of Legislative Decree no. 144 of 2005) was lower than that required to ground a criminal conviction. In the absence of manifestly arbitrary conclusions, the Court should endorse the national authorities’ reconstruction of the facts.", "2. The Court’s assessment 180. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 149 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 1 of Protocol No. 7.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 181. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 182. The applicant requested in the first place 20,000 euros (EUR) for loss of income. He observed that the deportation order had caused him to fall into an irregular situation, that he had been detained unlawfully in the Milan temporary holding centre for three months and that this had prevented him from carrying on his occupation.", "183. In respect of non-pecuniary damage, the applicant claimed EUR 50,000 and suspension and/or annulment of the deportation order. 184. The Government observed that the deportation had not been enforced, so that the applicant, an alien who had contravened the laws of the Italian State and been lawfully detained after 9 October 2002, was not entitled to claim any pecuniary damage or loss of income. 185.", "On the question of non-pecuniary damage, the Government submitted that there was no causal link between the conduct of the Italian authorities and the sufferings and inconvenience alleged by the applicant. In any event, the applicant had not indicated what criteria had been used for the calculation of the sum claimed. 186. The Court reiterates that it is able to make awards by way of the just satisfaction provided for in Article 41 where the loss or damage on which a claim is based has been caused by the violation found, but that the State is not required to make good damage not attributable to it (see Perote Pellon v. Spain, no. 45238/99, § 57, 25 July 2002).", "187. In the present case, the Court has found that enforcement of the applicant’s deportation to Tunisia would breach Article 3 of the Convention. On the other hand, it has not found any violations of the Convention on account of the deprivation of the applicant’s liberty or the fact that his presence in Italy was unlawful. Consequently, it can see no causal link between the violation found in the present judgment and the pecuniary damage alleged by the applicant. 188.", "With regard to the non-pecuniary damage sustained by the applicant, the Court considers that the finding that his deportation, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction. B. Costs and expenses 189. The applicant did not request reimbursement of the costs and expenses incurred during the domestic proceedings. He did, however, request reimbursement of his costs relating to the proceedings before the Court, which, according to a bill from his lawyer, amounted to EUR 18,179.57.", "190. The Government considered that amount excessive. 191. According to the Court’s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II). 192.", "The Court considers the amount claimed for the costs and expenses relating to the proceedings before it excessive and decides to award EUR 8,000 under that head. C. Default interest 193. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that, if the decision to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention; 3. Holds that it is not necessary to examine whether enforcement of the decision to deport the applicant to Tunisia would also be in breach of Articles 6 and 8 of the Convention and Article 1 of Protocol No. 7; 4. Holds that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 8,000 (eight thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 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: (a) concurring opinion of Judge Zupančič; (b) concurring opinion of Judge Myjer, joined by Judge Zagrebelsky. J.-P.C.V.B. CONCURRING OPINION OF JUDGE ZUPANČIČ 1.", "To the majority opinion with which I agree, I would like to add the following remarks in order to pinpoint two additional issues. I have explained the first question to some extent in my concurring opinion in Scozzari and Giunta[1] several years ago. One problem in family-law cases, in pre-trial detention cases and in emergency-assessment cases, as in Saadi v. Italy here, is that the judicial assessment does not have to do with a past historical event. Because I have dealt with this question in Scozzari and Giunta it is not necessary to reiterate the whole problem, except that I might add that the legal paradigm is retrospective. Legal process as a conflict-resolution context, together with all its evidentiary apparatus, is always retrospective.", "It is the insurance companies that are used to making “speculative” probabilistic assessments of the likelihood of future events. In American legal literature one may find many serious mathematical contributions concerning the descent from abstract probability to the concrete assessment of risk. When one is dealing with large numbers, as insurance companies, for example, often do, one may use a fairly simple formula known as “Bayes’ theorem”. However, when one is dealing with rare events, the use of Bayes’ formula becomes impossible, given that in rare events there is no statistical reality one could refer to. In paragraph 142 of the judgment the majority rightly say that, although the assessment of risk remains to some degree speculative, the Court has always been very cautious in examining the material placed before it in the light of the requisite standard of proof (paragraphs 128-32) before indicating an interim measure under Rule 39 or finding that enforcement of removal from the territory would be contrary to Article 3 of the Convention.", "Of course, the reference in this context has always been to Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V). In § 74, the standard rule was established as follows: “where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to [torture or to inhuman or degrading treatment or punishment] in the receiving country ..., Article 3 implies the obligation not to expel the person in question to that country.” This standard has been used by the United Nations Committee against Torture when applying Article 33 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Tratment or Punishment. While superficially logical, the Chahal test has an inherent problem which I describe in the beginning of this opinion. No matter how precise the wording of the Chahal test, it applies to the probability of future events rather than something which has already happened. It is therefore at least inconsistent to say that a certain standard of proof as referred to in the judgment in paragraph 142 could be applied.", "The simple reason for that is, of course, that one cannot prove a future event to any degree of probability because the law of evidence is a logical rather than a prophetic exercise. It is therefore an understatement to say that the application of the Chahal test is “to some degree speculative”. The cognitive approach to future events may be only a rational probabilistic assessment in the spectrum of experiment which moves from abstract probability to concrete probability. The correctness of that probabilistic assessment – one might use the word prognosis – critically depends on the nature of information (not evidence!) adduced in a particular situation.", "Whether law deals with past events and their proof on the one hand or with the probabilities of future events on the other hand, the information supplied for the purpose is never 100% complete. When dealing with historical events, the problem is that they are un-repeatable by nature and are in some sense irretrievably lost in the past. This, in contrast with repeatable events, makes for the difference between the scientific approach and proof on the one hand, and a legal assessment of what has happened in the past on the other hand. Consequently, there is a parallelism between the evidentiary problem in assessing the actual occurrence of past events on the one hand, and the probabilistic assessment of future events as in the present case on the other hand. However, while in both cases we are dealing with situations that are cognitively never completely accessible, the “evidentiary” problem concerning future events is far more radical.", "From time immemorial the legal process has dealt with these problems and has invented a way of resolving situations despite this cognitive insufficiency. I refer to the use of presumptions in Roman law where the magistrate (praetor) was required to make a decision about the past event although the evidence adduced was insufficient. The formula concerning presumptions, therefore, referred to situations of doubt and it required the decision-maker to assume a particular position when in doubt, as indicated by the legally mandated presumption. In other words, this enabled the system to reach a res judicata level even without being able to ascertain the whole truth. The mirror image of presumption is what at common law we call “the burden of proof” and “risk of non-persuasion”.", "The person bearing the burden and risk in the legal process is therefore put in a situation in which he must adduce sufficient evidence – or else lose the case. This logic works very well with past events, but it does not work very well either in family-law cases (Scozzari and Giunta) or in pre-trial detention cases or for that matter in Rule 39 cases. The latter are clearly emergency situations in which a person is, for example, arrested at an airport in order to be expelled (“refoulement”). To say in such a situation that this person must bear both the burden of proof and the risk of non-persuasion – while being held at the airport detention centre! – is clearly absurd.", "To make such a person bear the burden and the risk without redistributing both the burden and the risk and placing a large portion of it on the expelling State, borders on the inquisitorial. This kind of superficial formalism goes against the very grain of the European Convention on Human Rights. Moreover, the purpose of injunctions as per Rule 39 of the Rules of Court is not to adjudicate a particular case. In every legal system, emergency measures of this kind apply in order to freeze the situation so that the court dealing with the situation may have the time and the opportunity to make justice prevail. In such situations the issue is not whether the person being expelled will or will not be tortured or subjected to inhuman or degrading treatment in the country to which he is being expelled, but simply to create a delay without irremediable consequences should the person be irretrievably expelled.", "The aim therefore is not some kind of truth-finding. The aim is to create conditions in which truth-finding may yet happen. It therefore becomes obvious that the role of presumptions and of the “burden of proof” is here completely different because it does not serve an ultimate decision over the subject matter; it only serves to preserve the future scope of judicial decision-making over the subject matter. It follows inexorably that the role of the person being expelled in Rule 39 situations is to produce a shadow of a doubt, whereupon the burden of proof shifts to the country concerned. This is human rights.", "In evidentiary doctrine this is called “bursting the bubble”, as for example in the case of presumption of sanity, where a minimum of doubt suffices to eliminate this presumption and shifts the burden to the prosecution. The reasons for that shift are, of course, completely different in the context of criminal trial, but are extenuated to the nth degree in an airport emergency situation in which the person is being expelled. In the context of human rights the minimal empathy and the humanness of human rights dictate that a person threatened with expulsion should not bear an excessive burden of proof or risk of non- persuasion. The expelling State, in other words, is morally responsible for the mistaken assessment of risk, whereas the Court must in such situations favour the security of the person being expelled. 2.", "I am in complete agreement with paragraph 139 of the judgment in which the majority say that there is simply no quid pro quo between “serious threat to the community” on the one hand, and “the degree of risk of ill-treatment that the person may be subject to on return” on the other hand. The police logic advanced by the intervening Contracting State simply does not hold water. The question of the danger posed by the person to be expelled to the expelling party does not have an immediate bearing of any kind on the danger he might face if in fact expelled. Certainly, there will be cases in which a confirmed or notorious terrorist will for that reason face a harsher sentence in the country, usually a non-signatory of the Convention, to which he is being expelled. The fact, however, that these two sets overlap does not in itself prove that there should be a quid pro quo between them.", "It is intellectually dishonest on the other hand to suggest that expulsion cases require a low level of proof simply because the person is notorious for his dangerousness. From the policy point of view it is clear that the expelling State will in such situations be more eager to expel. The interest of a party, however, is no proof of its entitlement. The spirit of the Convention is precisely the opposite, that is, the Convention is conceived to block such short-circuit logic and protect the individual from the unbridled “interest” of the executive branch or sometimes even of the legislative branch of the State. It is thus extremely important to read paragraph 139 of the judgment as a categorical imperative protecting the rights of an individual.", "The only way out of this logical necessity would be to maintain that such individuals do not deserve human rights – the third-party intervener is unconsciously implying just that to a lesser degree – because they are less human. CONCURRING OPINION OF JUDGE MYJER, JOINED BY JUDGE ZAGREBELSKY I voted with the other judges that, if the decision to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention. I also fully agree with the reasoning which is contained in paragraphs 124 to 148 of the judgment. Still, I would like to add the following remarks. As far as the procedure is concerned: The question of principle in Saadi v. Italy, as raised by the intervening government (is there reason to alter and modify the approach followed by the Court in Chahal in cases concerning the threat created by international terrorism?", "), was earlier raised in some other cases which are at present still pending before a Chamber of the Third Section (Ramzy v. the Netherlands, no. 25424/05, and A. v. the Netherlands, no. 4900/06). In these cases against the Netherlands, leave to intervene as a third party was granted to the governments of Lithuania, Portugal, Slovakia and the United Kingdom and to some non-governmental organisations. These governments submitted a joint third-party intervention; separate third-party submissions and a joint third-party submission were filed by some non-governmental organisations.", "It then happened that the case of Saadi v. Italy (earlier referred to as N.S. v. Italy) was ready for decision while the cases against the Netherlands were not. In the Saadi case the Chamber of the Third Section relinquished jurisdiction on 27 March 2007 in favour of the Grand Chamber. In Case-law report 95 of March 2007 (the provisional version, which appeared in April 2007), mention was made on p. 38 of the N.S. v. Italy case (relinquishment in favour of the Grand Chamber), indicating that this was a case concerning the expulsion of the applicant to Tunisia on grounds of his alleged participation in international terrorism.", "The same appeared in the final version of Information Note No. 95 on the case-law of the Court, March 2007, which appeared some time later. The government of the United Kingdom requested leave to intervene as a third party in good time. As far as the question itself is concerned: Paragraph 137 of the judgment gives the answer in a nutshell: “The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence ... It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community.", "That must not, however, call into question the absolute nature of Article 3.” I would not be surprised if some readers of the judgment – at first sight – find it difficult to understand that the Court by emphasising the absolute nature of Article 3 seems to afford more protection to the non-national applicant who has been found guilty of terrorist-related crimes than to the protection of the community as a whole from terrorist violence. Their reasoning may be assumed to run as follows: it is one thing not to expel non-nationals – including people who have sought political asylum – where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country (see for instance the judgment of 11 January 2007 in Salah Sheekh v. the Netherlands, no. 1948/04) or even not to expel non-nationals who fall in the category of Article 1F of the Convention on the Status of Refugees of 28 July 1951 (decision of 15 September 2005 in Bonger v. the Netherlands, no. 10154/04) as long as these people pose no potential danger to the lives of the citizens of the State, but it makes a difference to be told that a non-national who has posed (and maybe still poses) a possible terrorist threat to the citizens cannot be expelled. Indeed, the Convention (and the Protocols thereto) contain legal human rights standards which must be secured to everyone within the jurisdiction of the High Contracting Parties (Article 1).", "Everyone means everyone: not just terrorists and the like. The States also have a positive obligation to protect the life of their citizens. They should 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 (Osman v. the United Kingdom, 28 October 1998, §§ 115-16, Reports of Judgments and Decisions 1998-VIII). They have, as was laid down in the preamble of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (adopted on 11 July 2002), “the imperative duty” to protect their populations against possible terrorist acts. I even daresay that the Convention obliges the High Contracting States to ensure as far as possible that citizens can live without fear that their life or goods will be at risk.", "In that respect I recall that “Freedom from Fear” ranks among the Four Freedoms mentioned in Roosevelt’s famous speech. However, States are not allowed to combat international terrorism at all costs. They must not resort to methods which undermine the very values they seek to protect. And this applies the more to those “absolute” rights from which no derogation may be made even in times of emergency (Article 15). During a high-level seminar on Protecting human rights while fighting terrorism (Strasbourg, 13-14 June 2005), the former French Minister of Justice Robert Badinter rightly spoke of a dual threat which terrorism poses for human rights: a direct threat posed by acts of terrorism; and an indirect threat because anti-terror measures themselves risk violating human rights.", "Upholding human rights in the fight against terrorism is first and foremost a matter of upholding our values, even with regard to those who may seek to destroy them. There is nothing more counterproductive than to fight fire with fire, to give terrorists the perfect pretext for martyrdom and for accusing democracies of using double standards. Such a course of action would only serve to create fertile breeding grounds for further radicalisation and the recruitment of future terrorists. After the events of 11 September 2001, the Committee of Ministers of the Council of Europe reaffirmed in the preamble of the above-mentioned guidelines the States’ obligation to respect, in their fight against terrorism, the international instruments for the protection of human rights and, for the member States in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights. Point XII § 2 of the guidelines makes it clear that it is the duty of a State that intends to expel a person to his or her country of origin or to another country not to expose him or her to the death penalty, to torture or to inhuman or degrading treatment or punishment.", "The Court found that in this case substantial grounds have been shown for believing that the applicant would risk being subjected to treatment, contrary to Article 3 of the Convention, if he were to be deported to Tunisia. Then there is only one (unanimous) answer possible. [1]. Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000‑VIII." ]

[ "FIFTH SECTION CASE OF BUROV v. UKRAINE (Application no. 14704/03) JUDGMENT STRASBOURG 17 March 2011 This judgment is final but it may be subject to editorial revision In the case of Burov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Boštjan M. Zupančič, President,Ganna Yudkivska,Angelika Nußberger, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 22 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14704/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Nikolayevich Burov (“the applicant”), on 8 April 2003. 2.", "The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 22 February 2010 the President of the Fifth Section decided to communicate to the Government the complaints under Articles 5 § 3 and 6 § 1 of the Convention concerning the length of the applicant’s detention on remand and criminal proceedings against him. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1962 and lives in Kharkiv, Ukraine. A. Criminal proceedings against the applicant 5.", "In June 1995 a certain G. was murdered and criminal proceedings were instituted. 6. On 9 July 1995 the applicant was arrested on suspicion of having committed the above-mentioned crime; on 11 July 1995 he was charged with the above-mentioned crime and remanded in custody. Alongside the applicant, three other persons (a certain B., K. and D., who were also suspected of the crime and who had been present when G. had been murdered) were also charged. At the later stage of the proceedings the charges against the applicant were disjoined from the rest of the charges and the outcome of the proceedings against B., K. and D. is not clear.", "7. According to the applicant, he was ill-treated during the initial period of the pre-trial investigation by the authorities with the aim of obtaining a confession. It is not clear whether the applicant complained of ill-treatment at the domestic level. Furthermore, on 10 July 1995 he was not provided with a legal-aid lawyer, notwithstanding his request. Apparently, the applicant was legally represented from 18 July 1995.", "8. During the pre-trial investigation B., K. and D. stated that the applicant had murdered G. Later, B. and K. changed their statements in the applicant’s favour, asserting that it was D. who had murdered G. 9. By November 1995 the pre-trial investigation was completed and the case was transferred to the Zhovtnevyy District Court of Kharkiv. 10. On 6 February 1996 the court remitted the case for additional investigation.", "On 9 April 1996 this decision was upheld by the Kharkiv Regional Court. 11. By December 1996 the pre-trial investigation had been completed and the case was transferred back to the Zhovtnevyy District Court of Kharkiv. 12. On 4 August 1998 the court remitted the case for additional investigation.", "On 3 November 1998 this decision was upheld by the Kharkiv Regional Court. On 19 February 1999 the presidium of the latter court rejected the prosecutor’s protest against that remittal. 13. On 24 March 1999 the applicant was released subject to an undertaking not to abscond. It was noted in the release decision that the applicant had been detained for more than three years, the statutory time‑limit for the applicant’s detention on remand had already expired and there was no need for further detention given the applicant’s permanent place of residence and other circumstances of the case.", "14. On 5 July 1999 the pre-trial investigation was completed and the case was transferred to the Leninskyy District Court of Kharkiv. 15. On 12 October 2000 the applicant was again remanded in custody. The aforesaid court held that the applicant had threatened his legal-aid lawyer and, as the latter refused to defend him, it was the applicant’s conduct which was thwarting the progress of the case.", "It also referred to the severity of the charges against the applicant and of the anticipated sentence. 16. On several occasions the hearings were postponed because of the accused, victim’s, witnesses’ and defence lawyers’ failure to appear before the trial court. 17. On 25 December 2001, although the applicant pleaded not guilty, the Leninskyy District Court of Kharkiv convicted him of murder and other crimes and sentenced him to thirteen years’ imprisonment.", "In doing so the court relied on statements by the accused, witness testimonies, forensic reports and other pieces of evidence. In particular, it established that on 20 June 1995, shortly after midnight, the applicant, B., K. and D., having quarrelled with G., had taken the latter to a desolate place and beaten him. After that the applicant had stabbed G. several times and he died. B., K. and D. had buried G. to conceal the crime. The court heard, inter alia, statements by B., K. and D. It found the statements by B. and K. exonerating the applicant untrue, as inconsistent with other pieces of indirect evidence.", "18. On 7 November 2002 the Kharkiv Regional Court of Appeal (before June 2001 the Kharkiv Regional Court) quashed this judgment because the trial court had unlawfully refused to make an audio recording of the hearings, and remitted the case for fresh consideration. It also noted that during the retrial all the applicant’s submissions should be duly examined. 19. The applicant appealed against this remittal but on 28 January 2003 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.", "20. In November 2002 the case was transferred to the Chervonozavodskyy District Court of Kharkiv. 21. During the retrial the applicant maintained his “not guilty” plea. 22.", "Again, as at the trial, the hearings were postponed on several occasions because of the participants’ failure to appear before the court. 23. According to the applicant, on several occasions he requested the trial court to summon certain witnesses who in his view would prove his innocence. In particular, on 31 March 2004 he requested the court to summon over twenty witnesses, among whom were the experts who had drew up forensic reports in the case, the prosecutors and the investigators who had dealt with the case. Later, on 13 April 2004 he also requested the court to summon again D., one of the persons who had been present when G. had been murdered.", "The court, according to him, rejected the requests. 24. In the course of the proceedings against him the applicant was legally represented by different lawyers appointed under the legal-aid scheme or privately hired. At least on three occasions (on 13 November 2000, some time after 25 September 2001 and on 9 April 2004) he refused their representation as, according to him, they had acted contrary to his defence interests and had colluded with the prosecution, and requested the trial court to replace them with either a particular or any other lawyer. The court dismissed these requests.", "In particular, on the latter occasion the court, finding that there was no need to replace the lawyer, had regard to the fact that several lawyers had defended the applicant, that the applicant had not been satisfied with any of their services, and that it had already allowed his requests to change his lawyer. 25. During the retrial the applicant and his lawyer also made several, unsuccessful applications for release (for example, on some date in February 2001, on 2 December 2002, 22 January, 18 April, 13 and 21 November, and 29 December 2003), referring, inter alia, to lack of any justification for further detention, absence of any intention by the applicant to flee during the period when he had been released (that is from March 1999 to October 2000), deteriorated condition of the applicant’s health, impossibility for the applicant to obstruct the criminal proceedings against him as all necessary pieces of evidence had been already taken. In its decisions of 23 April, 17 and 21 November, and 29 December 2003 the court, dismissing these applications, referred mostly to the severity of charges against the applicant or of the anticipated sentence; it also reasoned that no information was available that the applicant could not be further detained because of his state of health or, after having obtained forensic medical report on the applicant’s state of health, that the applicant’s ailments could be adequately treated in detention or merely that the matter had been already examined and applications dismissed. 26.", "On 9 April 2004 the applicant also unsuccessfully requested the court to give him the opportunity to familiarise himself with the case file. 27. On 27 April 2004 the court convicted the applicant of murder and other crimes and sentenced him to seven years and six months’ imprisonment. The court made the same factual findings as in the judgment of 25 December 2001 and again found untrue the statements by B. and K. exonerating the applicant, because the applicant and B. were brothers whereas K. had complained that pressure had been put on him by the applicant and B. In finding the applicant guilty it accordingly relied on earlier, incriminating, statements by B. and K. and the statements by D. made at the pre-trial stage, and on other pieces of indirect evidence.", "The court also noted, inter alia, that on two occasions the applicant had tried to destroy certain pieces of evidence against him while he was being familiarised with the case file. 28. The applicant appealed, complaining, inter alia, about the lower court’s failure to summon D. 29. On 3 May 2007 the Kharkiv Regional Court of Appeal essentially upheld the judgment. It did not expatiate on the above-mentioned complaint by the applicant.", "Additionally, the Court of Appeal rendered two special rulings (окремі ухвали) drawing the attention of the Kharkiv Regional prosecutor and the head of the Kharkiv Regional Judges’ Council to the procedural shortcomings of the respective authorities in charge of the case (in particular, that certain important pieces of evidence had been lost during the pre-trial investigation and that the judge of the Chervonozavodskyy District Court of Kharkiv had repeatedly failed to comply with procedural formalities to make the case file ready for examination by the appellate court, and had thus protracted the appeal proceedings for two years and six months). 30. The applicant appealed in cassation; he did not complain about the lower courts’ failure to summon D. Nor did he complain that he had been ill-treated and not provided with a legal-aid lawyer in 1995. On 3 December 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. B.", "Proceedings relating to the applicant’s complaints that his and his late parents’ property had been embezzled 31. According to the applicant, shortly after his arrest in 1995 his personal belongings and the property of companies founded by him were embezzled by the domestic authorities. Although he complained quickly, the investigation was initiated only in June 1996 and subsequently was terminated as no person responsible had been identified. 32. On 14 February 2001 the applicant requested the trial court to take measures to preserve the property of his late parents.", "According to him, the court rejected this request as it lacked clarity; all his subsequent, allegedly clarified, requests were disregarded by the trial court. 33. On 9 April 2004 the applicant requested the trial court to return to him certain items of his property which had been seized by the investigator as evidence in the criminal proceedings against him. According to the applicant, the court disallowed this request. C. Request for a copy of the case file 34.", "By letters of 12 May, 1 July and 15 December 2003, 24 September 2004 and 30 July 2009 the Registry requested the applicant to provide the copies of certain documents in his case. The applicant, in his turn, requested on several occasions the copies of the abovementioned and other documents but in vain. For instance, on 25 February 2008 the applicant’s lawyer requested the Chervonozavodskyy District Court of Kharkiv to make a copy of the case file. On 15 April 2008 the court rejected the request as not based on law. Eventually however the applicant provided the Registry with the necessary documents.", "II. RELEVANT DOMESTIC LAW 35. Provisions of the Code of Criminal Procedure of 28 December 1960 on preventive measures are set out in Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005‑II (extracts)). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 36. The applicant complained that the length of him detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 37. The Government pleaded that the complaint is partly inadmissible.", "In particular, they maintained that, for the purposes of Article 5 § 3 of the Convention, the applicant had been detained (i) from 9 July 1995 (when he had been arrested) to 24 March 1999 (when he had been released), (ii) from 12 October 2000 (when he had been remanded in custody again) to 25 December 2001 (the applicant’s first conviction) and (iii) from 7 November 2002 (when the first conviction had been quashed) to 27 April 2004 (when he had been convicted for the second time). Given that the application had been lodged on 8 April 2003, they argued that the first two periods were out of the six-month period. 38. The Court first observes that the Convention entered into force in respect of Ukraine on 11 September 1997. 39.", "It further reiterates that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000‑IV). 40. The Court also reiterates that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Kudła v. Poland [GC], no. 30210/96, §§ 104 and 105, ECHR 2000‑XI).", "41. Turning to the present case the Court agrees with the Government that the periods outlined by them are the relevant periods for the purposes of the abovementioned case-law. 42. It further notes that the first-mentioned period of the applicant’s detention partly falls out of the Court’s jurisdiction ratione temporis. Furthermore, having regard the applicant’s release and the date of introduction of the application, the Court considers that, as propounded by the Government, the complaint relating to this period has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Pekov v. Bulgaria, no.", "50358/99, § 58, 30 March 2006 and Tüm v. Turkey, no. 11855/04, § 31, 17 June 2008). 43. As to the remaining periods, the Court reiterates that consecutive detention periods of the applicant should be regarded as a whole, and the six-month period should only start to run from the end of the last period of pre-trial custody (see Solmaz v. Turkey, no. 27561/02, § 36, ECHR 2007‑II (extracts)), that is from 27 April 2004.", "For this reason, it dismisses the Government’s objection in so far as it relates to the second period of the applicant’s detention on remand. 44. Making an overall evaluation of the accumulated second and third periods under Article 5 § 3 of the Convention, the Court therefore concludes that the period to be taken into consideration in the instant case lasted two years and eight months. 45. The Court notes that the complaint relating to the last two periods of detention on remand 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 46. In view of the above objection (see paragraph 37 in fine), the Government limited their submissions on the merits to the third period of detention only. They contended that the length of the applicant’s detention on remand during that period had been reasonable given the number of accused persons and measures that had had to be taken by the authorities for thorough examination of the case.", "They concluded that the proceedings had been conducted with due diligence and the authorities had had sufficient grounds for the applicant’s continued detention. 47. The Court points out that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgements (see, among many other authorities, Kudła v. Poland, cited above, § 110 and Nevmerzhitsky v. Ukraine, cited above, § 130 et seq.). 48. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable; (3) lack of any other grounds justifying the applicant’s release (for example, deteriorated applicant’s health, lack of adequate medical treatment in detention).", "They did not, however, specify any concrete grounds justifying their opinion (see paragraph 25 above). 49. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. However, with the passage of time, those grounds became less and less relevant. Likewise, the severity of the anticipated sentence cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no.", "33977/96, §§ 80-81, 26 July 2001). 50. In the same vein the trial court’s reasons to reject the applications for applicant’s release on medical grounds (see paragraph 25 in fine) do not justify the applicant’s continued detention either as the presumption under Article 5 is in favour of release (see Bykov v. Russia [GC], no. 4378/02, § 61, ECHR 2009‑...). 51.", "Lastly, the Court notes that no alternative measures were effectively considered by the domestic authorities to ensure the applicant’s appearance at trial (see Nevmerzhitsky v. Ukraine, cited above, § 137 with further references). 52. Having regard to the foregoing, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant’s detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT) 53. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, 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 ...” 54. Although the proceedings at issue started on 9 July 1995, the period to be taken into consideration began only on 11 September 1997 (see paragraph 38 above). 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 period in question ended on 3 December 2007. It thus lasted ten years and almost three months for three levels of jurisdiction. A. Admissibility 55. 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 56. The Government submitted that the length of the proceedings in the applicant’s case was reasonable. In particular, they stated that the applicant’s case was complicated on points of fact, given the number of participants (4 accused, 20 witnesses and a victim).", "This case, in their view, was also complicated on points of law as it concerned a murder and other crimes committed by the group of persons. They also noted that the applicant and his defence lawyers had made ample use of their procedural rights (they had lodged various requests, adduced additional submissions and evidence, familiarised themselves with the case-file, appealed against decisions, challenged the investigators and judges, and so on). Because of the accused, victim’s, witnesses’ and defence lawyers’ failure to appear before the trial court on numerous occasions, the proceedings had been vastly protracted. The domestic authorities, on the other hand, had acted with due diligence and did their best to dispose of the case without undue delay. 57.", "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) 58. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many others, Pélissier and Sassi, cited above, and Merit v. Ukraine, no. 66561/01, § 76, 30 March 2004). 59.", "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. REMAINDER OF THE APPLICATION 60.", "The applicant complained in passing that he had been ill-treated in 1995 by the domestic authorities. Relying on Article 5 of the Convention, the applicant further challenged the lawfulness of the decisions to remand him in custody taken in 1995 and 2000 and the lawfulness of his detention on remand in 1995-1999. The applicant further complained under Article 6 §§ 1, 2 and 3 (b, c, d) and Article 7 of the Convention that his convictions on 25 December 2001 and 27 April 2004 had been unlawful and the proceedings against him had been flawed. The applicant also complained under Article 1 of Protocol No. 1 that his and his late parents’ property had been embezzled from him and that the domestic authorities had failed to return to him certain items of his property seized as evidence in the criminal proceedings against him.", "Lastly, the applicant complained under Article 34 of the Convention that on 15 April 2008 the Chervonozavodskyy District Court of Kharkiv had unlawfully rejected his lawyer’s request for a copy of the case file. 61. Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 62. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. 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. In respect of pecuniary damage the applicant claimed 3,750,000 United States dollars (USD) (for instance, loss of his personal belongings and property of the companies founded by him, loss of income and so on) and USD 5,650,000 for all violations he alleged to have been committed by the authorities in his case.", "Apart from that he also claimed USD 1,840,000 in respect of non-pecuniary damage. 65. The Government contested these claims. 66. 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, ruling on an equitable basis, it awards the applicant 5,400 euros (EUR) in respect of non-pecuniary damage. B. Costs and expenses 67. The applicant also claimed 611 Ukrainian hryvnias (about EUR 56) for the postal expenses incurred before the Court. 68.", "The Government left the matter to the Court’s discretion. 69. Regard being had to the documents in its possession and to its case‑law, the Court considers that the sum claimed should be awarded in full. C. Default interest 70. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 5 § 3 of the Convention concerning the length of the applicant’s detention on remand from 12 October 2000 to 25 December 2001 and from 7 November 2002 to 27 April 2004 and under Article 6 § 1 of the Convention concerning the length of the criminal proceedings against him admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months EUR 5,400 (five thousand four hundred euros) in respect of non‑pecuniary damage and EUR 56 (fifty six 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 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; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsBoštjan M. ZupančičDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF JOVANOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 31731/03) JUDGMENT STRASBOURG 7 January 2010 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 Jovanoski v. the former Yugoslav Republic of Macedonia, 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 1 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31731/03) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Krste Jovanoski (“the applicant”), on 22 September 2003. 2. The applicant was represented by Mr M. Popeski, a lawyer practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, R. Lazareska Gerovska. 3.", "On 15 November 2006 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1932 and lives in Gorno Lakocerej.", "5. On an unspecified date in 1991, the applicant, as a successful litigant, instituted enforcement proceedings against the Croatian company “Fruktus”, (“the debtor”), for payment of a debt. 6. On 6 June 1991 the then Ohrid Municipal Court (“the first-instance court”) upheld the applicant's request ordering the debtor to transfer the amount due on his account (“the 1991 order”). 7.", "On 20 June 1991 the Zagreb Payment Exchange Bureau (Служба за општествено книговодство Загреб) (“the Bureau”) transferred part of the debt on the applicant's account. 8. On 4 February 1992 the applicant requested the court to enforce the remainder. On 19 February 1992 the first-instance court granted this request. 9.", "On 9 November 1992 it rejected as out of time the debtor's objection on the 1991 order. On 19 March 1993 the Bitola District Court dismissed an appeal of the debtor against this latter decision rejecting its argument that normal communication had been disrupted because of the war conflict in Croatia at the material time. 10. On 20 September 1993 the first-instance court unsuccessfully requested the applicant to propose an alternative means of enforcement. On 8 November 1994 it stayed the proceedings finding that the enforcement of the remainder, by the means proposed by the applicant, had become impossible due to the dissolution of the then Federal Bureau of Yugoslavia and the creation of the Bureau, as an autonomous institution of the independent Croatia.", "11. On 11 July 1995 the Bitola District Court upheld the applicant's appeal and remitted the case for a fresh consideration. It held that the dissolution of the then Federal Bureau of Yugoslavia could not be regarded as a valid ground for suspending the enforcement. It ordered the lower court to contact the Ministry of Justice so as to establish whether an inter-state agreement existed between the respondent State and Croatia concerning the payment exchange operations. No further decision has been taken.", "12. On 31 August 2001 the case-file was destroyed. According to the Government, all case-files involving a foreign debtor were destroyed on the basis of an internal act of competent courts. There is no evidence that that was brought to the applicant's attention. The queries which he made at an unspecified date in 2003 revealed that the case had been archived.", "II. RELEVANT DOMESTIC LAW 13. The Agreement between the former Yugoslav Republic of Macedonia and Croatia on Mutual Legal Assistance in Civil and Criminal Matters (Договор помеѓу Република Македонија и Република Хрватска за правна помош во граѓанските и кривичните предмети) (“the agreement”), was concluded on 2 September 1994 and became applicable as of 26 May 1995. 14. Section 20 of the agreement stipulates, inter alia, that the contracting parties are bound to recognise and enforce final decisions rendered by courts of the other party.", "15. Under section 22 of the agreement, an interested person can submit a request for recognition and enforcement of a final judgment before the courts of the contracting party, which are called upon to decide the request for recognition and enforcement, or before the court, which rendered the final judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that he had been denied the right of access to a court due to the non-enforcement of his claim.", "He complained under Article 6 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 17. The Government objected that the applicant had not complied with the six-month time-limit which had started to run as of 31 August 2001 when the case-file had been destroyed. They further argued that the application was an abuse of the right of application and that the applicant's representative furnished a power of attorney only in 2006. The Government also argued that the applicant had not exhausted all available remedies given his failure to seek enforcement before Croatian courts. 18.", "The applicant contested the Government's objections. 19. The Court reiterates that the six-month period will run from the date on which a decision is actually served (see Worm v. Austria (dec.), no. 22714/93, 7 November 1995). In this connection, it observes that the Government did not provide any evidence that the applicant had been served with a decision in respect of the destruction of the case-file.", "The Government's arguments that the application was an abuse of the right of application are also unsubstantiated. 20. As to the Government's objection for non-exhaustion, the Court considers that the applicant's failure to seek enforcement of the remainder before the Croatian courts could not absolve the responsibility of the respondent State for the proceedings pending before its courts. Furthermore, this objection was raised also in respect of the applicant's claim for pecuniary damage and it should be examined accordingly (see paragraph 34 below). It follows that the Government's objections must be rejected.", "21. The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties' submissions 22. The Government submitted that the period which elapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration. They stated that his claim had been partly enforced (see paragraph 7 above). They further maintained that there had been complex factors such as the dissolution of former Yugoslavia and the war in Croatia.", "The Government pointed out that the applicant had not demonstrated any interest in the enforcement proceedings and had failed to seek their expedition. 23. The applicant contested the Government's arguments. 2. The Court's consideration 24.", "The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, § 33, 3 July 2008). Moreover, it considers that the State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Pecevi v. the former Yugoslav Republic of Macedonia, no. 21839/03, § 29, 6 November 2008). However, the Court notes that State responsibility for enforcement of a judgment against a private party extends no further than the involvement of State bodies in the enforcement procedures.", "Once the enforcement procedures were closed by a court in accordance with the national legislation, the responsibility of the State ended (see Martinovska v. the former Yugoslav Republic of Macedonia, (dec.), no. 22731/02, 25 September 2006). 25.The Court notes that the enforcement proceedings started in 1991 when the applicant had sought enforcement of his claim. His claim was partly enforced on 20 June 1991. On 4 February 1992 the applicant requested that the court enforce the remainder.", "The Court will therefore examine the applicant's complaint in respect of the proceedings as of this latter date. It further observes that they formally ended on 31 August 2001 when the case-file had been destroyed. No further action has been taken by both the courts and the applicant. 26.The impugned situation lasted therefore nearly eleven years, of which approximately six years fall within the Court's jurisdiction ratione temporis (since the ratification of the Convention by the respondent State on 10 April 1997). 27.", "The Court recalls that, in order to determine the reasonableness of the delay in question, regard must also be had to the state of the case on the date of ratification (see Jankulovski, cited above, § 36) and notes that on 10 April 1997 the enforcement proceedings had already been pending for around five years. 28.The applicant requested enforcement of a final decision given in his favour (see paragraph 5 above). After his claim was partly enforced on 20 June 1991 (see paragraph 7 above), the enforcement proceedings laid dormant since 11 July 1995 when the Bitola District Court remitted the case for a fresh consideration (see paragraph 11 above). The first-instance court remained inactive although it was called upon to render a decision. The next and last activity was taken on 31 August 2001 when the case-file was destroyed.", "There is no evidence that the latter was ordered on the applicant's request. 29. The Court observes that the applicant's last activity in respect of the proceedings was before July 1995 (see paragraph 11 above). He thereafter showed interest about the outcome of the proceedings only in 2003 (see paragraph 12 above). 30.Notwithstanding, having regard to all circumstances the Court considers that by refraining from taking adequate and effective measures to enforce the applicant's claims the domestic courts deprived the provisions of Article 6 § 1 of the Convention of all useful effect.", "31. There has therefore been a violation of Article 6 § 1 of the Convention. II.APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33.", "The applicant claimed 1,076,284 euros (EUR) in respect of pecuniary damage. That figure corresponded to the amount awarded in the substantive proceedings together with interest. He also claimed EUR 20,000 in respect of non-pecuniary damage for emotional suffering. 34. The Government contested these claims arguing that the applicant could have sought enforcement of the remainder before the Croatian courts.", "35. As to the pecuniary damage, the Court finds persuasive the Government's argument that the applicant had failed, although entitled to under the agreement, to seek enforcement of the remainder before the Croatian courts. It therefore rejects his claim under this head. 36. On the other hand, the Court accepts that the applicant suffered emotionally due to the failure of the first-instance court to decide his request for enforcement in respect of the remainder.", "Ruling on an equitable basis, it awards him EUR 500 in respect of the non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 37. The applicant also claimed EUR 3,700 for the costs and expenses incurred before the domestic courts and the Court. He did not submit any supporting documents.", "38. The Government contested this claim as excessive and unsubstantiated. 39. The Court points out that under Rule 60 of the Rules of Court “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents failing which the Chamber may reject the claim in whole or in part” (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, § 72, 7 February 2008).", "40. The Court notes that the applicant did not provide any supporting documents. It therefore makes no award in this respect. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 7 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FOURTH SECTION CASE OF S.A. v. HUNGARY (Application no. 42606/13) JUDGMENT STRASBOURG 18 July 2017 This judgment is final but it may be subject to editorial revision. In the case of S.A. v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Georges Ravarani,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 27 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "42606/13) 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, Mr S.A. (“the applicant”), on 25 June 2013. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicant was represented by Mr D. A. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.", "3. On 21 September 2016 the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on his severance payment was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS 4. The applicant was born in 1965 and lives in Balatonrendes.", "5. The applicant served as a civil servant from 21 December 1998 until 28 February 2013. Upon the termination of his service, a certain part of his severance payment was taxed at a 98% rate in the amount of 1,861,703 Hungarian forints (HUF) (approximately 6,200 euros (EUR)). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 6. The applicant complained that the imposition of 98% tax on part of his remuneration due on termination of his employment had amounted to a deprivation of property in breach of Article 1 of Protocol No. 1 to the Convention. The Government did not dispute the applicant’s allegations. 7.", "The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 8. The Court observes that virtually identical circumstances gave rise to a violation of Article 1 of Protocol No.", "1 in the case of R.Sz. v. Hungary (no. 41838/11, §§ 54-62, 2 July 2013), and is satisfied that there is no reason to hold otherwise in the present application. It follows that there has been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 9. Relying on Article 41 of the Convention, the applicant claimed HUF 1,861,703 (approximately EUR 6,200) in respect of pecuniary and non-pecuniary damages combined. The Government argued that the applicant’s claim was excessive. 10.", "Having regard to the fact that, in the absence of the 98% tax rate, the applicant’s severance would have been in all likelihood subject to the general personal income taxation, the Court awards the applicant EUR 4,500 in respect of pecuniary and non-pecuniary damage combined. 11. The applicant claimed the reimbursement of costs and expenses incurred before the Court to be awarded in the amount of EUR 1,500. The Government argued that the applicant’s cost claim was excessive. 12.", "Having regard to all materials in the case file, the Court finds it reasonable to award the applicant EUR 500, for the costs and expenses pertaining to the proceedings before it. 13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; and (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Andrea TamiettiVincent A. De GaetanoDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MAYDANIK v. UKRAINE (Application no. 20826/02) JUDGMENT STRASBOURG 10 April 2008 FINAL 29/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Maydanik v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Karel Jungwiert, Volodymyr Butkevych, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, judges, and of Claudia Westerdiek, Section Registrar. Having deliberated in private on 18 March 2008 Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 20826/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Grigoriyevich Maydanik (“the applicant”), on 24 April 2002. 2. The applicant was represented by Mr I. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeriya Lutkovska.", "3. On 9 September 2004 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1958 and lives in Kirovograd. A. Proceedings concerning retirement benefits 5. In January 2001 the applicant, a former military serviceman brought proceedings against A-0981 military unit, where he had served before retirement, seeking recovery of redundancy pay and compensation for his uniform. On 12 February 2001 the Military Court of Cherkassy Garrison (Військовий суд Черкаського гарнізону) found for the applicant and awarded him a total of 5,386 Ukrainian hryvnias (UAH) [1].", "6. On 20 March 2001 the military unit concerned paid the applicant UAH 3,828[2]. 7. On 17 May 2001 the Bailiffs’ Service of the Leninskiy District of Kirovograd (Відділ державної виконавчої служби Ленінського районного управління юстиції м. Кіровограда, hereafter “the Leninskiy Bailiffs’ Service”) instituted enforcement proceedings in respect of UAH 1,558[3], the outstanding amount of the court award. 8.", "Although the property and accounts of A-0981 military unit were frozen by the Leninskiy Bailiffs’ Service the funds obtained were insufficient for the payment of the amount due to the applicant. 9. On 26 March 2003 the Leninskiy Bailiffs’ Service forwarded the applicant’s writ of execution together with the enforcement case-file to the Bailiffs’ Service of the Oleksandrivskiy district of Kirovograd region (Відділ державної виконавчої служби Олександрівського районного управління юстиції Кіровоградської області, hereafter “the Oleksandrivskiy Bailiffs’ Service”). 10. According to a bank trasnsfer order produced by the Government, on 30 November 2004 the Oleksandrivskiy Bailiffs’ Service sent UAH 2,073[4] via postal transfer to an unspecified recipient or recipients.", "This sum corresponds to the total amount of the remaining debts owed to the applicant and Mr Kolesnik, the applicant in case no. 20824/02. 11. On 1 December 2004 the Oleksandrivskiy Bailiffs’ Service terminated the proceedings in the applicant’s enforcement case on the grounds that the judgment of 12 February 2001 had been executed in full. The applicant stated that he had not been informed of the above postal transfer and had not received any money as a result of it.", "12. On 21 June 2007 the Oleksandrivskiy Bailiffs’ Service sent to the applicant the remaining amount of the court award by postal transfer. On the same day the applicant collected this money. B. Proceedings concerning compensation for bailiffs’ inactivity 13.", "On 4 March 2003 the applicant brought proceedings against the Leninskiy Bailiffs’ Service claiming moral damages for its alleged inactivity and compensation for the devaluation of the sum awarded to him. 14. On 28 July 2003 the Leninskiy Court granted this claim in part and awarded the applicant UAH 1,000[5] in compensation for non-pecuniary damage incurred as the result of the Leninskiy Bailiffs’ Service’s failure to perform in time its duties set forth in the Law of 21 April 1999 “on Enforcement Proceedings”. The Leninskiy Bailiffs’ Service appealed. 15.", "On 2 March 2005 the Kirovograd Regional Court of Appeal (Апеляційний суд Кіровоградської області, hereafter “the Court of Appeal”) quashed the judgment of 28 July 2003 and remitted the case for rehearing. 16. On 6 June 2005 the Leninskiy Court dismissed the applicant’s complaint due to his recurrent failure to appear in the court. On 27 September 2005 the Court of Appeal granted the applicant’s appeal against this decision, quashed it and remitted the case for fresh consideration. On 6 December 2005 the Supreme Court (Верховний Суд України) declared the Leninskiy Bailiffs’ Service’s appeal against this decision admissible and opened cassation review proceedings, which are still pending.", "II. RELEVANT DOMESTIC LAW 17. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 18. The applicant complained about the non-execution of the judgments of 12 February 2001 and 28 July 2003 given in his favour. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” A. Admissibility 1. Alleged non-enforcement of the judgment of 12 February 2001 19.", "The Government argued that the applicant lost his victim status after the execution of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001. 20. The applicant disagreed. 21. The Court notes that this objection is similar to one which the Court has already dismissed in a number of judgments (see, for example, Voytenko v. Ukraine, no.", "18966/02, §§ 32-35, 29 June 2004 and Romashov v. Ukraine, no. 67534/01, §§ 23-27, 27 July 2004). The Court considers that the present objection must be rejected for the same reasons. 22. The Court notes that the applicant’s complaints concerning the non-enforcement of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. 2. Alleged non-enforcement of the judgment of 28 July 2003 and allegedly excessive length of proceedings concerning the bailiffs’ inactivity 23. According to the applicant the proceedings concerning his complaint against the Leninskiy Bailiffs’ Service have lasted unreasonably long and that the judgment of 28 July 2003 remains unenforced. 24.", "The Court, in the light of all material before it, finds that in so far as the matters complained of are within its competence, they do not disclose any appearance of an unjustified interference or breach of these provisions and rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded. B. Merits 25. In their observations, the Government contended that there had been no violation of Articles 6 § 1 and 13 of the Convention or Article 1 of Protocol No. 1 (as in the cases of Romashov, cited above, § 37, and Voytenko, cited above § 37).", "They also maintained that the overall length of the proceedings was reasonable in the circumstances. 26. The applicant disagreed 27. The Court observes that, according to the Government, the judgment in the applicant’s favour was enforced in full on 30 November 2004, when the outstanding amount of the award was sent to the applicant via postal transfer. However, the applicant stated that he was not informed of any such transfer, nor did he receive any money thus sent.", "28. The Court notes in this respect that apart from a copy of a bank order, which does not bear any name of a recipient or recipients of the transferred amount, the Government did not produce any document to prove that the alleged transfer was actually made or that the applicant was informed of it. The Court, therefore, considers that the debt to the applicant was paid to him in full on 21 June 2007 when he received the outstanding amount via the postal transfer. 29. Therefore the final judgment of the Military Court of Cherkassy Garrison of 12 February 2001 remained unenforced for six years and three months.", "30. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see, for example Voytenko, cited above, §§ 43, 48, 55 and Vodopyanovy v. Ukraine, no. 22214/02, § 37, 17 January 2006). 31.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 32. The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos.", "34297/02 and 39574/02, § 42, 21 December 2004). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34.", "The applicant claimed 796.71 Euros (EUR) in respect of pecuniary and EUR 8,000 in respect of non-pecuniary damage. As regards the former he referred to the statutory default interest and loss of income. 35. The Government contended that the applicant’s claim for pecuniary damage was not supported with any documents and that his claim for non-pecuniary damage was unsubstantiated and exorbitant. 36.", "The Court makes no award in respect of pecuniary damage as the applicant has not substantiated any such loss. However, it considers that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 2,000. B. Costs and expenses 37.", "The applicant also claimed EUR 269.58 for the costs and expenses incurred before the domestic courts and EUR 383.1 for those incurred before the Court. 38. The Government maintained that the applicant has failed to the show that the claimed amounts were actually incurred and that these costs were necessary. 39. The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no.", "23118/93, § 62, ECHR 1999-VIII). 40. The Court considers that these requirements have not been met in the instant case. In particular, it notes that the case was not particularly complex and the applicant was dispensed from the general obligation to be legally represented. However, the applicant may have incurred some costs and expenses for his representation and the proceedings before the Court.", "41. Regard being had to the information in its possession and to the above considerations, the Court awards the applicant EUR 300 for costs and expenses. C. Default interest 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 complaint concerning non‑enforcement of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand Euros) in respect of non-pecuniary damage and EUR 300 (three hundred Euros) in respect of costs and expenses, plus any tax that might be chargeable to the applicant; (b) that the aforementioned sums shall be converted into the national currency of Ukraine at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. Approximately 1,072.54 euros (EUR).", "[2]. EUR 807.83. [3]. Approximately EUR 300 [4]. Approximately EUR 415 [5].", "Approximately EUR 166" ]

[ "THIRD SECTION CASE OF SHIROKIKH AND OTHERS v. RUSSIA (Applications nos. 30532/07 and 6 others – see appended list) JUDGMENT STRASBOURG 6 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Shirokikh 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 15 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 excessive length of their pre-trial detention.", "In application no. 30532/07 the applicant also raised a complaint under Article 6 § 1 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: 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 observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading case of Dirdizov v. Russia, no.", "41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10.", "These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. REMAINING COMPLAINT 11. In application no. 30532/07 the applicant complained under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings in his case, in accordance with the relevant well-established case-law of the Court.", "This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of Article 6 § 1 of the Convention in the light of its findings in Nakhmanovich v. Russia, no. 55669/00, 2 March 2006. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, 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. 14.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 4.", "Holds that there has been a violation as regards the complaint raised under Article 6 § 1 of the Convention in application no. 30532/07 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 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López GuerraActing 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] 30532/07 27/06/2007 Dmitriy Sergeyevich Shirokikh 13/05/1983 13/03/2003 to 27/03/2006 03/05/2007 to 03/10/2008 3 year(s) and 15 day(s) 1 year(s) and 5 month(s) and 1 day(s) Art. 6 (1) - excessive length of criminal proceedings - 12/03/2003-19/04/2009, two levels of jurisdiction; two rounds of proceedings (Judgment of 27/03/2006 reversed on cassation appeal on 03/05/2007; new judgment of 03/10/2008 upheld on cassation appeal on 19/04/2009) 6,000 36187/10 05/06/2010 Maksim Borisovich Olendarev 28/04/1975 10/04/2009 to 17/01/2011 1 year(s) and 9 month(s) and 8 day(s) 2,000 11743/16 16/02/2016 Yevgeniy Aleksandrovich Kamenev 21/04/1975 28/02/2014 pending More than 3 year(s) and 2 month(s) and 25 day(s) 3,300 28308/16 06/05/2016 Vladimir Aleksandrovich Muchkov 30/04/1987 27/09/2013 to 05/06/2014 13/11/2014 pending 8 month(s) and 10 day(s) More than 2 year(s) and 6 month(s) and 10 day(s) 3,300 50480/16 12/08/2016 Igor Yevgenyevich Pukhachev 07/06/1980 Kovaleva Yana Viktorovna Kazan 04/12/2012 to 09/06/2016 3 year(s) and 6 month(s) and 6 day(s) 3,700 50682/16 15/08/2016 Gennadiy Vladimirovich Chernov 10/07/1976 Kovaleva Yana Viktorovna Kazan 04/12/2012 to 09/06/2016 3 year(s) and 6 month(s) and 6 day(s) 3,700 50777/16 15/08/2016 Aleksey Anatolyevich Fedorov 22/10/1979 Kovaleva Yana Viktorovna Kazan 04/12/2012 to 09/06/2016 3 year(s) and 6 month(s) and 6 day(s) 3,700 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF KAYA v. TURKEY (Application no. 332/13) JUDGMENT STRASBOURG 12 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Kaya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Julia Laffranque, President,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 21 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 332/13) 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 Mehmet Ali Kaya (“the applicant”), on 1 November 2012.", "2. The Turkish Government (“the Government”) were represented by their Agent. 3. On 3 November 2016 the complaints concerning the alleged unfairness of the proceedings before the Supreme Military Administrative Court on account of the applicant’s inability to access the classified documents submitted by the Ministry of Defence, and the alleged independence and impartiality of the tribunal because of the presence of two military officers sitting on the bench who did not enjoy the same judicial guarantees as the other military judges, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and lives in Diyarbakır. 5. The applicant was an officer in the Army. On 1 August 1989, relying on classified investigation reports, the applicant’s contract was terminated and he was dismissed from his office.", "At the time, he did not have access to the classified reports and there was no remedy against this decision. Subsequently, following the adoption of a new law in 2011, the applicant once again applied to the Ministry of Defence on 7 April 2011, and asked for reinstatement. His request was rejected. 6. On 4 August 2011 the applicant initiated proceedings before the Supreme Military Administrative Court to have the annulment of the decision of the Ministry of Defence.", "During the proceedings, the defendant party submitted classified documents for the court’s consideration. On 24 April 2012 the Supreme Military Administrative Court rejected the applicant’s case. This decision was served on the applicant on 15 May 2012. II. RELEVANT DOMESTIC LAW 7.", "A description of the domestic law at the material time can be found in Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000), and Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 8.", "Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. He further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings. A. Concerning the independence and impartiality of the Supreme Military Administrative Court 1. Admissibility 9.", "The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicant failed to lodge a motion, requesting the disqualification of the military judges. 10. The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and law. Accordingly, any objection filed by the applicant regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see, mutadis mutandis, Yavuz v. Turkey (dec.), no.", "29870/96, 25 May 2000, and Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008). 11. Thus, such a request before the national authorities would not have remedied the situation complained of.", "It follows that this objection should be dismissed. The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 12. The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention. It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. 13.", "There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court. B. Concerning the access to the classified documents 14. The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence. 15.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 16. Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine this complaint (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998‑IV; Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no. 24087/07, § 33, 14 March 2017).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 17. The applicant claimed 600,000 euros (EUR) in respect of pecuniary and EUR 100,000 non-pecuniary damage. 18.", "The Government contested the claims. 19. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made under this head. As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant.", "B. Costs and expenses 20. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 21. The Government contested the claim.", "22. In accordance with the Court’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not substantiated his claim in respect of legal fees. Accordingly, the Court does not make any award under this head. C. Default interest 23.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court; 3. Holds that it is not necessary to consider the applicant’s complaint concerning his inability to have access to the classified documents submitted by the Ministry of Defence to the Supreme Military Administrative Court; 4.", "Holds that (a) the respondent State is to pay the applicant, within three months EUR 1,500 (one thousand five 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıJulia LaffranqueDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF C.N. v. THE UNITED KINGDOM (Application no. 4239/08) JUDGMENT STRASBOURG 13 November 2012 FINAL 13/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of C.N.", "v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić, judges,and Lawrence Early, 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. 4239/08) 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 Ugandan national, Ms C.N. (“the applicant”), on 24 January 2008. The Vice-President of the Section at the time acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant, who had been granted legal aid, was represented by Ms G. Morgan of Bindmans LLP, a law firm based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban of the Foreign and Commonwealth Office. 3. On 11 March 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 4. The applicant was born in 1979. 5.", "The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education. 6. According to the applicant’s account, a relative named S. and a Mr A. helped her obtain a false passport and a visa to enable her to enter the United Kingdom.", "However, the applicant claimed that on arrival in the United Kingdom S. took her passport and travel documents and did not return them to her. 7. The applicant lived for a number of months at various houses belonging to S. in London. She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful.", "8. In January 2003 S. introduced the applicant to a man called M. who ran a business providing carers and security personnel for profit. The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. The applicant asserted that on each occasion payment was made by the client to M., who transferred a share of the money to S.’s bank account in the apparent belief that he would pass it on to her. However, she claimed that she did not receive any payment for the work that she did.", "9. In early 2003 the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role physically and emotionally demanding as Mr K. suffered from Parkinson’s disease and she was required to change his clothing, feed him, clean him and lift him as necessary. As a result, she was permanently on-call during the day and night. On one Sunday every month she was given a couple of hours leave but on these occasions she would usually be collected by M. and driven to S.’s house for the afternoon.", "She accepted that after a couple of years she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone. 10. The applicant claimed that the GBP 1,600 Mr and Mrs K. paid every month for her services was sent directly to M. by cheque. A percentage of that money was passed by M. to S. on the apparent understanding that it would be paid to her. However, she received no significant payment for her labour.", "Occasionally Mr and Mrs K would give the applicant presents or second-hand clothes and from time to time S. would give her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave. It was sometimes suggested that S. was saving up her income for her education, but she denied that any money was ever given to her. 11. In August 2006 Mr and Mrs K. went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport.", "In their absence, the applicant was taken to a house belonging to S. When he left for a business trip to Uganda, she remained in the house with his partner, H. The applicant asserted that H. effectively prevented her from leaving the house and warned her not to speak with anyone. 12. On 18 August 2006 the applicant left the house. She went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive.", "She was also suffering from psychosis, including auditory hallucinations. 13. The applicant remained in hospital for one month. H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S.’s house. In particular, she warned her that when she left the hospital she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”.", "14. Following her discharge from hospital, the applicant was housed by the local authority. On 21 September 2006 she made an application for asylum. The application was refused on 16 January 2007. The Secretary of State for the Home Department considered that the applicant could access protection in Uganda to prevent further sexually motivated attacks.", "Moreover, he found that if she had been genuinely afraid of S., she would have tried to escape from him earlier. The applicant appealed. Her appeal was dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed serious concerns about the applicant’s credibility and found much of her account to be implausible. 15.", "In April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. The Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences, commenced an investigation to ascertain whether or not she had been the victim of a criminal offence. The police interviewed the applicant on 21 June 2007. During the investigation, the Human Trafficking Team sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the field of human trafficking. However, the Centre advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into the United Kingdom and observed that during her time working with Mr and Mrs K she had been well looked after.", "16. On 26 September 2007 the police informed the applicant’s former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”. 17. On 26 August 2008 the applicant’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police noted that the Head of Legal Services at the United Kingdom Human Trafficking Centre had advised that there was no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom.", "He further advised that while the applicant worked with the K family she was well looked after and given some money. There was, however, a dispute over money and it may have been that “her cousin kept more than he should have done”. 18. On 5 September 2008 the police informed the applicant’s solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”.", "19. On 5 December 2008 the applicant’s solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour. 20. On 18 December 2008 the applicant was assessed by the POPPY Project, a Government funded project providing housing and support for victims of trafficking. The POPPY Project concluded that she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO).", "In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities. 21. On 5 January 2009 the police began to conduct further investigations. On 14 January 2009 the police noted that a statement had been obtained from the agent who arranged the applicant’s work with Mr and Mrs K (presumably the man previously identified as M.). He stated that he had been introduced to the applicant by a person he believed to be her relative.", "He was supplied with a passport, a national insurance number and a criminal records check. The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him. She only complained about this arrangement in or around June 2006. The agent also stated that he feared the applicant’s relative, who was a wealthy and powerful man well-connected to the Ugandan government. 22.", "The police were unable to make contact with Mr and Mrs K. Eventually they made contact with a member of the K family. However, no statement appears to have been taken as the (unidentified) woman told the police that she was leaving the country for medical treatment. 23. On 25 February 2009 the police informed the applicant’s solicitor that the evidence did not establish an offence of trafficking. They noted that “at this stage there is no evidence that would support exploitation of any kind”.", "24. Police officers met with the applicant and her representative on 11 March 2009. The applicant’s solicitor asserted that at this meeting a police officer indicated that it was the Metropolitan Police’s provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant’s account was credible. 25.", "In an entry dated 27 March 2009 the police noted that: “It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a forged visa stamp. These false documents were paid for by her father with the assistance of her uncle... She willingly commenced work that was arranged by her uncle as a live-in carer for an elderly couple. The family at first wanted to pay her wages direct.", "But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle’s account who in turn would send the money back to Uganda. This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number. If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [United Kingdom Border Agency]. This would then lead to her arrest and eviction from the UK... ...There is no evidence to show that this female is/was a victim of slavery or forced labour.", "She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the UK. It is basically a situation that one criminal (her uncle) has taken all the proceeds of their crime...” 26. At that meeting the applicant’s solicitor pointed out that S. had taken the applicant’s identity documents from her upon her arrival in the United Kingdom and that this was grounds to prove possible forced labour. However, the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter the United Kingdom. 27.", "On 31 March 2009 the police spoke again with the applicant’s solicitor. While they accepted that not every enquiry had been carried out, such as production orders relating to relevant bank accounts, it was important to ensure that the limited resources of the Human Trafficking Team were used to best effect and they could not, therefore, carry out any further investigation into the applicant’s complaints. 28. The applicant was assessed by a clinical psychologist specialising in violence against women. The psychologist concluded in her 16 May 2009 report that the applicant was “suffering to a severe degree from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide.” In particular, she noted that the applicant presented “in ways consistent with a victim of trafficking and forced labour, in the context of a history of sexual assaults”.", "29. On 11 August 2009 the police noted that they would write to the applicant’s solicitor to confirm that “this particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor”. 30. On 12 August 2009 the police wrote to the applicant’s solicitor in the following terms: “I can confirm that after undertaking an investigation of the case including interviewing Ms N. a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms N.’s case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004.", "I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...” 31. Section 71 of the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but did not have retrospective effect. II. RELEVANT DOMESTIC LAW AND PRACTICE 32.", "Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that: “(1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger outside the United Kingdom, or (b) he believes that another person is likely to exploit the passenger outside the United Kingdom.", "(4) For the purposes of this section a person is exploited if (and only if)— (a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour), (b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)), (c) he is subjected to force, threats or deception designed to induce him— (i) to provide services of any kind, (ii) to provide another person with benefits of any kind, or (iii) to enable another person to acquire benefits of any kind, or (d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that— (i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and (ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement. (5) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.” 33. On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent.", "Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows: “71 Slavery, servitude and forced or compulsory labour (1) A person (D) commits an offence if— (a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or (b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour). (3) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both. (4) In this section— “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950; “the relevant period” means— (a) in relation to England and Wales, 12 months; (b) in relation to Northern Ireland, 6 months.” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 1.", "The ILO Forced Labour Convention 34. Articles 1 and 2 of the Convention provide as follows: “Article 1 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. 2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided.", "3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference. Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2.", "Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.” 2. The ILO indicators of forced labour 35. The ILO has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour. These indicators are: “1. Threats or actual physical harm to the worker.", "2. Restriction of movement and confinement to the work place or to a limited area. 3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt.", "4. Withholding of wages or excessive wage reductions, that violate previously made agreements. 5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status. 6.", "Threat of denunciation to the authorities, where the worker is in an irregular immigration status.” 3. The Council of Europe Convention on Action Against Trafficking 36. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009. 37. Article 4 defines “trafficking in human beings\" as follows: “(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.", "Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; 38. Article 19 provides that: “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.” 4. The Slavery Convention 1926 39. Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that: “The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.", "(2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.” 5. Recommendations 1523 (2001) and 1663 (2004) of the Parliamentary Assembly of the Council of Europe 40. Recommendation 1523 (2001) provides, as relevant, that: “1.", "In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world. 2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights. 3.", "The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction. ... ... ... 5. It notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence. 6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.", "7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented. ... ... ... 9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes. 10.", "It accordingly recommends that the Committee of Ministers ask the governments of member states to: i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes; ... ... ... vi. protect the rights of victims of domestic slavery by: a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds; b. taking steps to provide them with protection and with social, administrative and legal assistance; c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery; d. developing specific programmes for their protection; e. increasing victims’ time limits for bringing proceedings for offences of slavery; f. establishing compensation funds for the victims of slavery.” 41. Recommendation 1663 (2004) further provides, as relevant, that: “The Assembly thus recommends that the Committee of Ministers: i. in general: a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion; b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states; c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible; d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so; e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counselling services) and attribute funds to non-governmental organisations working in this area; f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition; ii. as concerns domestic servitude: a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers’ recommendation or even of a convention, should guarantee at least the following rights to domestic workers: – the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights; – the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities; – the right to health insurance; – the right to family life, including health, education and social rights for the children of domestic workers; – the right to leisure and personal time; – the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country; b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty.", "Accredited agencies could have visa applications put forward on their behalf validated automatically; c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 42. The applicant complained that at the time of her ill-treatment the Government were in breach of their positive obligations under Article 4 of the Convention to have in place criminal laws penalising forced labour and servitude. Article 4 of the Convention provides as follows: “1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.” 43. The Government contested that argument.", "A. Admissibility 44. The Government submitted that the application was manifestly ill‑founded and therefore inadmissible because there was insufficient evidence to conclude that the applicant had been subjected to the kind of treatment prohibited by Article 4 and because the protection afforded by English law against conduct prohibited by Article 4 was sufficient to discharge the positive obligation on the State. 45. The Court finds that the question of whether or not the applicant’s complaint under Article 4 is manifestly ill-founded is a matter to be determined on the merits. 46.", "It notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 47. The applicant submitted that the Government were under a positive obligation to enact domestic law provisions specifically criminalising the conduct prohibited by Article 4; they failed to enact such provisions until 2009; and, as she had made a credible allegation of ill-treatment contrary to Article 4 in 2006, any investigation into her complaints was ineffective as it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 and could not therefore result in a prosecution. 48. The applicant noted that in Siliadin v. France, no. 73316/01, § 123, ECHR 2005‑VII the Court defined servitude as a “particularly serious form of denial of freedom” which included “in addition to the obligation to perform certain services for others ... the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition”.", "She submitted that she was required to live with Mr and Mrs K., who demanded difficult care and needed her to be “on call” twenty-four hours a day. She did so under coercion by S. and M. and she received no notable remuneration. Her working hours and conditions, and the removal of her travel documents, were such as to render her unable to alter her own situation. 49. In Siliadin the Court defined forced or compulsory labour with reference to the International Labour Organisation Forced Labour Convention, which included “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.", "The Court itself noted that the term brought to mind the idea of “physical or mental constraint”. In Siliadin the Court found this element to be present where the applicant was an adolescent girl, unlawfully present in a foreign land and living in fear of arrest by the police. In the present case, in light of the definition adopted by the Court and the ILO, and taking into consideration the reports by the POPPY Project and the consultant psychiatrist, the applicant submitted that the police’s conclusion that the lack of payment for the applicant’s work was no more than an absence of “honour among thieves” betrayed a fundamental disregard of the ILO’s key indicators of forced labour and a troubling ignorance of the vulnerabilities of illegal immigrants. 50. The applicant submitted that the relevant domestic law provisions did not, at the relevant time, include the criminal offence of forced labour or servitude.", "Indeed, the police confirmed to the applicant in writing that there was no offence known to them which encapsulated her situation. As a result, notwithstanding the strong evidence of treatment falling within the scope of Article 4 of the Convention, no effective investigation could be conducted into her treatment and no person had been arrested or prosecuted in relation to it. Moreover, there was not even a domestic offence akin to those relied on by the French Government in Siliadin, namely provisions criminalising the obtaining of performance of services for no payment or for manifestly disproportionate underpayment, and the subjection of another to living or working conditions incompatible with human dignity. The best that could be advanced by the British Government were general offences such as kidnapping, fraud, or psychological assault, none of which fulfilled the positive obligation under Article 4 of the Convention. 51.", "The applicant submitted that the decision of the Court in Siliadin made it clear that what was required was legislation specifically criminalising conduct falling within the scope of Article 4. Ancillary offences which might also be committed during the course of forced labour or servitude did not provide sufficient protection under the Convention. 52. Finally, the applicant submitted that in introducing section 71 of the Coroners and Justice Bill, which created specific offences of slavery, servitude and forced or compulsory labour, the Government had accepted that there was a “lacuna in the law” which needed to be filled. (b) The Government 53.", "The Government did not accept that the applicant had been subjected to slavery, domestic servitude or forced or compulsory labour. First, an investigation into her complaints had been conducted by a specialist police unit. Having investigated the complaint, they reached three important conclusions: that the evidence was insufficient to establish that the applicant had been trafficked into the United Kingdom; that the evidence was insufficient to establish that whilst in the United Kingdom she had been held in slavery or required to perform forced or compulsory labour; and that the evidence was insufficient to establish that she had been the victim of any criminal offence. 54. Secondly, the Government submitted that the police did not terminate the investigation or decide not to bring a prosecution on the basis that there was no specific offence in English law which criminalised the conduct complained of.", "On the contrary, the crime report of 26 March 2009 made it clear that the decision to terminate the investigation was taken on a substantive assessment of the evidence, which led to the conclusion that it could not be established that the applicant had been trafficked, held in slavery or required to perform forced or compulsory labour. 55. Thirdly, the Government submitted that the conclusions of the police were reasonable and proper and were, in fact, reinforced by the Asylum and Immigration Tribunal, which found most of the applicant’s account to be implausible and had serious concerns about her credibility. 56. In any case, the Government submitted that in the applicant’s situation the protections offered by domestic law were sufficient to comply with the positive obligation to have in place criminal law provisions which penalised the conduct falling within the scope of Article 4.", "Article 4 did not require that the effective protection against the prohibited conduct should be achieved by means of the adoption of a single, specific criminal offence. At the time of the conduct alleged by the applicant there were a number of offences in English law which criminalised the essential aspects of slavery, servitude and forced or compulsory labour. These included false imprisonment, for which the maximum sentence was life imprisonment; kidnapping, for which the maximum sentence was also life imprisonment; grievous bodily harm, which carried a maximum sentence of life imprisonment; assault, battery and causing physical or psychiatric harm, the more serious offences of which carried a maximum sentence of five years’ imprisonment; blackmail, which carried a maximum sentence of fourteen years’ imprisonment; harassment, which carried a maximum sentence of five years’ imprisonment; and a number of employment-related offences, such as those relating to the national minimum wage and working time limits. 57. In addition, English criminal law now had a well-established offence of human trafficking introduced by section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.", "Section 4 made provision for offences of trafficking into, within and from the United Kingdom a person who had been exploited and, for the purposes of the offences, exploitation meant behaviour that contravened Article 4. 58. Moreover, in England there was now a specific offence relating to the prohibition in Article 4. Section 71 of the Coroners and Justice Act 2009, which came into force on 6 April 2010, made provision for an offence of holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour. The Government rejected the applicant’s assertion that this offence was introduced to fill a lacuna in the domestic law; rather, they submitted that Parliament had considered it “useful to introduce a further bespoke offence” even though the new offences were “already covered by extensive legislation and regulations”.", "In any case, the Government submitted that even if the offence under section 71 had applied at the time of the conduct alleged by the applicant, the evidence in her case would have been insufficient to bring a prosecution. 59. Finally, the Government submitted that the positive obligation under Article 4 of the Convention was discharged in the applicant’s case by the carrying out of an effective official investigation which went directly to the heart of her Article 4 complaint. The applicant was extensively and carefully questioned and further enquiries were undertaken. A witness provided a statement indicating that the applicant had agreed that her wages should be paid to S. and that she did not complain about this arrangement for over three years.", "On reviewing the evidence, the police concluded that it was not sufficient to establish that the applicant had been the victim of conduct prohibited by Article 4 of the Convention. Rather, the police concluded that she had entered the United Kingdom voluntarily, had worked voluntarily, and had agreed that her wages should be paid to a family member in order to avoid her detection by the authorities as an illegal immigrant. 60. Consequently, the Government submitted that in the circumstances there was no arguable case that the applicant’s rights under Article 4 had been violated. (c) The third party interveners α.", "The Aire Centre 61. The Aire Centre invited the Court to expand upon the notion of positive obligations which it had developed in its case-law on Article 4. It stressed that victims of human trafficking were particularly unlikely to be identified by the authorities as victims of crime and that States must therefore take a pro-active approach. An effective deterrent must mean an approach to human trafficking and any other conduct contrary to Article 4 that recognised the subtle ways in which individuals might fall under the control of another. It also required a considered response to allegations of such treatment in all cases.", "β. The Equality and Human Rights Commission 62. The Commission submitted that since the ratification of ILO Convention no. 29 in 1931 the United Kingdom had been under a positive obligation to formally penalise the exaction of forced labour and to adequately enforce such penalties. However, until 6 April 2010 there was no specific prohibition on servitude and forced labour despite strong evidence of severe exploitation and forced labour within the United Kingdom.", "Indeed, the Commission indicated that from 1 December 2004 to March 2010 there were 22 prosecutions under section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and yet 207 individuals were recognised as victims of trafficking between 1 April 2009 and 1 April 2010 alone. In fact, in a number of cases, particularly involving domestic workers, victims had to resort to judicial review because of a lack of investigation of their complaints by the police. 63. The Commission further submitted that there had been a number of cases which in substance concerned forced labour or servitude but which had not been adequately investigated or prosecuted and there was therefore a need for clarity on what amounted to forced labour as distinct from exploitation.", "Moreover, the Commission did not consider section 71 of the Coroners and Justice Act 2009 to be of assistance because it merely reproduced the text of the Convention without explaining it in light of present day conditions. There was therefore a risk that the new statute would not result either in clear deterrence or effective prosecutions, and would not improve the failures in investigation. 64. Finally, the Commission submitted that there was no adequate system of compensation for victims of servitude and forced labour. 2.", "The Court’s assessment (a) General principles 65. The Court reiterates that, together with Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe (Siliadin, cited above, § 82). Unlike most of the substantive clauses of the Convention, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. 66. In its Siliadin judgment the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112; see also C.N.", "and V. v. France, no. 67724/09, § 105, 11 October 2012). 67. In its Rantsev judgment, the Court held that as with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of treatment in breach of that Article (see, mutatis mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III).", "In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware that an identified individual had been, or was at real and immediate risk of being subjected to such treatment. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116). 68. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116). 69.", "Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate where there is a credible suspicion that an individual’s rights under that Article have been violated. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means.", "A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73). (b) Application of the general principles to the present case 70. In the present case the applicant alleges that there was a failure properly to investigate her complaints and that this failure was at least in part rooted in defective legislation which did not effectively criminalise treatment falling within the scope of Article 4 of the Convention. 71.", "The Court observes that in Rantsev, in the context of trafficking, it held that in order for an obligation to investigate to have arisen, the circumstances must have given rise to a “credible suspicion” that the applicant had been trafficked. Likewise, it considers that for an obligation to have arisen in the present case, it must be satisfied that the applicant’s complaints to the domestic authorities gave rise to a credible suspicion that she had been held in domestic servitude. 72. The Court notes that the authorities were first made aware of the applicant’s claim to have been kept in conditions amounting to domestic servitude after she collapsed at the HSBC bank in Kilburn in August 2006. On 21 September 2006 she made an application for asylum, in the course of which she complained, inter alia, that she had been forced to work for the K family without remuneration.", "Furthermore, in April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. She was interviewed by the Human Trafficking Team on 21 June 2007 and gave a detailed statement in which she set out her domestic servitude complaints. The Court does not consider that the applicant’s complaints concerning her treatment by S. and M. were inherently implausible. Indeed, it notes that the circumstances which she described were remarkably similar to the facts of the Siliadin case, the only notable differences being that the applicant was older than the applicant in Siliadin and that it was an agent – and not her “employers” – who she claimed were responsible for the treatment contrary to Article 4 of the Convention. Although the Government have submitted that the applicant’s account was not in fact credible, the Court observes that this was a conclusion reached following further investigation of her complaints.", "Indeed, the fact that the domestic authorities conducted any investigation into the applicant’s complaints strongly indicates that, at least on their face, they were not inherently implausible. Consequently, the Court considers that the applicant’s complaints did give rise to a credible suspicion that she had been held in conditions of domestic servitude, which in turn placed the domestic authorities under an obligation to investigate those complaints. 73. It is clear that the domestic authorities did investigate the applicant’s complaints. However, the applicant submits that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the Convention.", "74. It is not in dispute that at the time the applicant alleged that she was subjected to treatment falling within the scope of Article 4 of the Convention, such conduct was not specifically criminalised under domestic law. There were, however, a number of criminal offences which criminalised certain aspects of slavery, servitude and forced or compulsory labour. In particular, the Government directed the Court’s attention to the offences of trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment. 75.", "In Siliadin, the Court found that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies. (Siliadin v. France, cited above, § 148). In that case, the Court found that Articles 2250-13 and 225-14 of the French Criminal Code, which concerned exploitation through labour and subjection to working and living conditions incompatible with human dignity, were not sufficiently specific and were too restrictive to protect the applicant’s rights under Article 4 of the Convention. 76. In view of the Court’s findings in Siliadin, it cannot but find that the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention (see, mutatis mutandis, M.C.", "v. Bulgaria, no. 39272/98, § 179, ECHR 2003‑XII). Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour. Victims of such treatment who were not also victims of one of these related offences were left without any remedy. 77.", "Consequently, the Court considers that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention. 78. Nevertheless, the Government have submitted that the reason no action was taken following investigation of the applicant’s complaints was not the absence of appropriate legislation but rather the absence of evidence to support the facts alleged by her. In short, the domestic authorities simply did not believe the applicant’s account. The Court must therefore consider whether the lack of specific legislation criminalising domestic servitude prevented the domestic authorities from properly investigating the applicant’s complaints, or whether her complaints were properly investigated but no evidence was found to support them.", "In carrying out this assessment, the Court reiterates that it is not its task to replace the domestic authorities in the assessment of the facts of the case. 79. The Court recalls that the investigation into the applicant’s complaints was commenced by the Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences. On 26 September 2007 they informed the applicant’s solicitor that there was “no evidence of trafficking for domestic servitude”. Likewise, on 5 September 2008 they noted that there was “no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom”.", "She had been well looked after by the K family, although there had been a dispute over money and it may have been that “her cousin kept more than he should have done”. Again, on 18 September 2008 the police stated that “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted” and on 25 February 2009 they noted that “there is no evidence that would support exploitation of any kind”. Later, on 27 March 2009, the police recorded that “there is no evidence to show that this female is/was a victim of slavery or forced labour”. Finally, on 12 August 2009 the police wrote to the applicant’s solicitor, indicating that her case did not appear to constitute an offence of trafficking for the purposes of exploitation and that they were “not aware of any specific offence of forced labour or servitude”. 80.", "While the Court notes the credibility concerns voiced by the domestic authorities, it cannot but be concerned by the investigating officers’ heavy focus on the offence of trafficking for exploitation as set out in section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. In particular, it observes that the investigation into the applicant’s complaints was carried out by a specialist trafficking unit and while investigators occasionally referred to slavery, forced labour and domestic servitude it is clear that at all times their focus was on the offence enshrined in section 4 of the 2004 Act. As indicated by the Aire Centre and the Equality and Human Rights Commission in their third party interventions, domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another.", "In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors. In particular, the Court is concerned by the fact that during the course of the investigation into the applicant’s complaints, no attempt appears to have been made to interview S. despite the gravity of the offence he was alleged to have committed (see, by way of comparison, M. and Others v. Italy and Bulgaria, no. 40020/03, §§ 104 - 107, 31 July 2012). For the Court, the lacuna in domestic law at the time may explain this omission, together with the fact that no apparent weight was attributed to the applicant’s allegations that her passport had been taken from her, that S. had not kept her wages for her as agreed, and that she was explicitly and implicitly threatened with denunciation to the immigration authorities, even though these factors were among those identified by the ILO as indicators of forced labour. 81.", "Consequently, the Court finds that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment. 82. Accordingly, there has been a violation of Article 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 83.", "The applicant further complained under Article 8 of the Convention that her right to respect for her private and family life was profoundly violated by the treatment she was subjected to between 2002 and 2006. 84. The Court does not consider the applicant’s complaint under Article 8 to be 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 and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 85. Finally, the applicant complained that the absence of any specific criminal offence of domestic servitude or forced labour denied her an effective remedy in respect of her complaints under Articles 4 and 8 of the Convention. 86. The Court does not consider the applicant’s complaints under Article 13 to be 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 and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 88. The applicant claimed ten thousand euros (EUR 10,000) in respect of non-pecuniary damages. She considered this figure to be appropriate in light of the recent case of M.C. v. Bulgaria (cited at paragraph 76, above) and K.U. v. Finland, no.", "2872/02, ECHR 2008, and taking into account the duration of the ill-treatment. 89. The Government submitted that the finding of a violation would in itself provide just satisfaction and that it would not be necessary for the Court to make an award of non-pecuniary damages. In the alternative, they submitted that if the Court considered an award of damages to be appropriate, it should not exceed the sum of EUR 8,000 awarded in M.C. v. Bulgaria.", "90. In view of its recent findings in M.C. v. Bulgaria, the purely procedural nature of the violation found, and the Government’s genuine concerns about the applicant’s credibility, the Court awards her EUR 8,000 in respect of non-pecuniary damage. B. Costs and expenses 91.", "The applicant also claimed GBP 38,275.86 for costs and expenses incurred before the Court. 92. The Government submitted that this figure was excessive. The Government did not consider it necessary for the applicant to have instructed Queen’s Counsel. However, having appointed Queen’s Counsel, they considered the solicitor’s hourly rate of GBP 240 to be excessive.", "Moreover, the total number of hours claimed by the three representatives – 157 hours in total – appeared to be more than was reasonable for a case which was not exceptionally complicated. They therefore submitted that recovery of the applicant’s legal costs should be capped at GBP 9,000. 93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are 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 20,000 for the proceedings before the Court.", "C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declare the application admissible; 2. Holds that there has been a violation of Article 4 of the Convention; 3.", "Holds that no separate issues arise under Article 8 or 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, to be converted into British Pounds at the rate applicable at the date of settlement: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 20,000 (twenty 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 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyLech GarlickiRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KHUDOYOROV v. RUSSIA (Application no. 6847/02) JUDGMENT STRASBOURG 8 November 2005 FINAL 12/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khudoyorov v. Russia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrM.", "Pellonpää,MrK. Traja,MrA. Kovler,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 11 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 6847/02) 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 national of Tajikistan, Mr Doniyor Toshpulotovich Khudoyorov, on 29 January 2002. 2. The applicant, who had been granted legal aid, was represented before the Court by Mr F. Bagryanskiy and Mr M. Ovchinnikov, lawyers practising in Vladimir, Mrs K. Moskalenko, a lawyer with the International Protection Centre in Moscow, and Mr W. Bowring, a London lawyer. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, that the conditions of his detention in facility no. OD-1/T-2 and conditions of transport to and from the courthouse had been incompatible with Article 3 of the Convention, that his pre-trial detention had been unlawful after 4 May 2001 and also excessively long, that his applications for release filed after 28 April 2001 had not been considered “speedily”, if at all, and that the length of the criminal proceedings had been excessive. 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 13 February 2004 the Section President decided to grant priority to the application under Rule 41 of the Rules of Court. 6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 7. By a decision of 22 February 2005, the Court declared the application partly admissible. 8. The Government, but not the applicant, filed observations on the merits (Rule 59 § 1).", "9. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1965.", "On 17 August 1998 he arrived in Russia from Tajikistan. He stayed in Vladimir at his cousin's flat. A. The applicant's arrest and the search of the flat 11. On 22 January 1999 the applicant was arrested on suspicion of the unlawful purchase and possession of drugs.", "A search was carried out in the flat where he was staying. B. The applicant's detention pending investigation 12. On 30 January 1999 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 3 grams of hashish. He pleaded not guilty and indicated that he did not need an interpreter because he had studied in Leningrad.", "13. On 12 March and 5 April 1999 the applicant's detention was extended until 11 July 1999. 14. On 4 June 1999 the Leninskiy District Court of Vladimir refused the applicant's request for release on bail. It found that the applicant's detention had been extended in accordance with the law and that no grounds for releasing him could be established.", "The applicant did not appeal to the Regional Court. 15. On 30 June and 2 September 1999 the applicant's detention was extended until 21 December 1999. 16. On 2 December 1999 the acting Prosecutor General approved the extension of the applicant's detention until 21 June 2000.", "The applicant appealed to the Leninskiy District Court, which on 28 December 1999 dismissed the appeal, finding that the applicant had been charged with an particularly serious criminal offence and had resided in Vladimir only temporarily, his permanent residence being in Dushanbe, Tajikistan, so that there was good reason to suspect that he would abscond if released. The applicant did not appeal against that decision to the Regional Court. C. First remittal of the case for additional investigation 17. On 21 June 2000 the supervising prosecutor approved the bill of indictment and the case against the applicant and twenty co-defendants was sent to the Vladimir Regional Court for trial. 18.", "On 23 June and 17 July 2000 the applicant requested the Vladimir Regional Court to review the lawfulness of his detention on remand. 19. On 18 July 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the bill of indictment had not been translated into the Tajik language, even though seven of the defendants were Tajik. The court held that the applicant and his co-defendants should remain in custody. 20.", "On 24 July 2000 the prosecution appealed against the decision but subsequently withdrew their appeal. On 30 August 2000 the case was returned to the Vladimir Regional Court for examination on the merits. D. Second remittal of the case for additional investigation 1. Reinstatement of the decision of 18 July 2000 21. On 23 November 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the rights of some of the defendants had been unlawfully restricted.", "The prosecution appealed. 22. On 28 February 2001 the Supreme Court of the Russian Federation quashed the decision of 23 November 2000. It found that, after the case had been remitted for an additional investigation on 18 July 2000, the prosecution had not remedied the defects identified by the Regional Court. In particular, the prosecution had not arranged for translation of the bill of indictment or checked that the interpreter had the requisite skills.", "In view of these procedural defects, the Supreme Court held that all the subsequent judicial decisions had been unlawful and remitted the case to the Regional Court for implementation of the decision of 18 July 2000. 2. Additional investigation (a) Extension of the applicant's detention for one month (until 4 May 2001) 23. On 4 April 2001 the case was remitted to the prosecutor of the Vladimir Region for an additional investigation. On the same day a deputy prosecutor of the Vladimir Region extended the applicant's detention on remand by one month, until 4 May 2001.", "(b) Extension of the applicant's detention for three months (until 4 September 2001) 24. On 19 April 2001 the prosecutor of the Vladimir Region applied to the Vladimir Regional Court for an order extending the applicant's detention. The applicant lodged objections in which he alleged, inter alia, that the prosecution had thus far failed to perform any additional investigation. 25. On 28 April 2001 the Vladimir Regional Court established that the bill of indictment had been translated into Tajik and that on 18 April 2001 the defendants and their lawyers had begun their examination of the case file.", "Noting the gravity of the charges against the applicant, his Tajik nationality and absence of a permanent residence in Vladimir, the Regional Court further remanded him in custody until 4 September 2001. 26. On 4 and 17 May 2001 the applicant appealed against the decision of the Vladimir Regional Court. (c) Quashing of the decision to extend the applicant's detention until 4 September 2001 27. On 8 August 2001 the Supreme Court established that one of the applicant's co-defendants had not been provided with an interpreter into Uzbek and that the applicant and other co-defendants had had no access to the materials examined by the Regional Court.", "It held as follows: “The defects of the court hearing described above and the curtailing of the defendants' statutory rights... are substantial violations of the rules of criminal procedure, which could have affected the judge's conclusions; the decision [of 28 April 2001] must therefore be quashed and the materials of the case relating to the extension of the defendants' pre-trial detention must be referred for a new judicial examination. During the new examination of the prosecutor's request, the above defects shall be remedied... and the arguments by the defendants and their counsel, including those concerning the lawfulness of their detention, shall be reviewed... The preventive measure [imposed on, in particular, the applicant] shall remain unchanged”. By an interim decision of the same date, the Supreme Court refused the applicant leave to appear at the appeal hearing. (d) Second examination of the request for an extension of the applicant's detention until 4 September 2001 28.", "On 11 September and 30 November 2001 the Vladimir Regional Court adjourned hearings in order to afford the defendants additional time in which to read the case-file. 29. On 27 February 2002 the Vladimir Regional Court upheld a challenge by the applicant against the presiding judge. 30. On 11 and 13 March, 12 April, 17 and 18 June 2002 hearings were adjourned because of the absence of several lawyers, including the applicant's counsel.", "31. On 15 August 2002 the Vladimir Regional Court again granted the prosecutor's request (of 19 April 2001) for an extension of the defendants' detention on remand until 4 September 2001. It found that it was necessary for the applicant to remain in custody because he was a national of Tajikistan, was not registered as resident in Vladimir, and had been charged with a serious criminal offence. The court also referred to certain “conclusions” contained in the prosecutor's application to the effect that the applicant might abscond or obstruct justice. The content of these “conclusions” was not disclosed.", "32. On 23 September 2002 the applicant lodged an appeal against the decision of the Vladimir Regional Court. He claimed that the contested decision was “unlawful and unconstitutional” and requested leave to appear in person at the appeal hearing. 33. On 23 January 2003 the Supreme Court upheld the decision of 15 August 2002, finding as follows: “The judge came to a well-justified conclusion that the defendants... could not be [released pending trial].", "The judge had regard to the fact that these persons were charged with serious and particularly serious criminal offences, he considered the information on their character and all the circumstances to which the prosecutor had referred in support of his application... The fact that the above-mentioned decision on the prosecutor's application was [only] made after the defendants had spent that length of time in custody... is not a ground for quashing the decision of 15 August 2002 because the first judicial decision on this matter was quashed in accordance with the law and the prosecutor's application of 19 April 2001 was remitted for a new examination. The subsequent progress of the criminal case is, under these circumstances, of no relevance to a decision on the prosecutor's application.” By an interim decision of the same date, the Supreme Court refused the applicant's request for leave to appear because the defendants' arguments were clearly set out in their grounds of appeal and their lawyers were present at the hearing while the prosecutor was not. E. Third remittal of the case for additional investigation 1. Preparation for the trial 34.", "Meanwhile, on 4 September 2001 the additional investigation was completed and the case sent to the Vladimir Regional Court. On or about that date the applicant asked the court to order his release pending the trial. 35. On 9 January 2002 the Vladimir Regional Court fixed the first hearing for 5 February 2002 and held that the applicant should remain in custody pending trial: “[The court] did not establish any grounds... to amend or revoke the preventive measure imposed on the accused given the gravity of the offence with which the defendants are charged. Furthermore, the fact that the court decision extending the detention on remand of several defendants in order to afford them [time] to examine the case materials was quashed on appeal is of no legal significance.", "[In its decision of 8 August 2001] the Supreme Court did not revoke the preventive measure, the case was referred to the [trial] court without delay and no other grounds for amending the preventive measure were established.” 36. On 11 February 2002 the applicant lodged an appeal against the decision. He complained, in particular, that his detention was unlawful because it had significantly exceeded the maximum eighteen-month period permitted by law, that the conditions in which he was detained were poor and that he had been ill-treated by police officers, both at the time of his arrest and subsequently. He alleged that his notice of appeal had never been dispatched to the Supreme Court. 37.", "On 5 February 2002 the hearing was adjourned until 26 February because three defendants had failed to appear. On 15 February 2002 the applicant prepared an appeal against the decision to adjourn the hearing; in the notice of appeal, he also repeated the points he had raised in his appeal of 11 February. He again stated that his notice of appeal had not been sent to the Supreme Court. 2. Decision to remit the case for additional investigation 38.", "On 13 March 2002 the Vladimir Regional Court established that the case was not ready for consideration on the merits because of a series of procedural defects: in particular, several defendants had not had sufficient time to study the case file, one defendant had not been provided with interpretation facilities into Uzbek, and the applicant had not been informed in good time of the expert examinations. The court remitted the case for an additional investigation and remanded the defendants in custody “in the light of the gravity and dangerous nature of the offences”. 39. On 11 April 2002 the prosecution appealed against the decision of 13 March and the applicant did likewise on 29 April. The applicant submitted, in particular, that the domestic law did not permit extensions of detention “during the investigation” beyond the maximum period of eighteen months which had expired, in his case, on 4 April 2001.", "40. On 28 May 2002 the case-file was forwarded to the Supreme Court for examination of the issue of detention on remand. 3. Quashing of the decision to remit the case for additional investigation 41. On 8 August 2002 the Supreme Court refused, in an interim decision, the applicant's request for leave to appear, holding that his position had been clearly and exhaustively stated in the grounds of appeal.", "42. On 12 September 2002 it examined the appeals lodged by the prosecutor, the applicant and his co-defendants and found that the defence rights had not been impaired. On this ground it quashed the decision of 13 March 2002 and instructed the Vladimir Regional Court to proceed with the trial. It held that the applicant and his co-defendants should remain in custody because “there were no legal grounds to amend the preventive measure given the gravity and dangerous nature of the offences”. 43.", "On 7 October 2002 the case-file was returned to the Vladimir Regional Court. F. Further extensions of the applicant's detention pending trial and his release from custody 44. On 18 November 2002 the Vladimir Regional Court extended the applicant's detention on remand until 3 December 2002. It found as follows: “The case was referred to the Vladimir Regional Court on 2 September 2001; on 13 March 2002 it was decided to remit the case for additional investigation. On 12 September 2002 the Supreme Court quashed that decision on appeal by the prosecutor.", "Thus, the defendants have remained in custody for 8 months and 16 days, starting from the date of the case's referral and excluding the period between [the end of the] examination on the merits and the quashing of the decision [of 13 March 2002] on appeal. Regard being had to the fact that the defendant is charged with serious and particularly serious criminal offences, in order to secure the examination of the case and the enforcement of the conviction [sic], there are no grounds to [release the applicant]. Under these circumstances, pursuant to Article 255 § 3 of the Russian Code of Criminal Procedure, the defendant's detention on remand is extended for an additional three months”. 45. On 4 December 2002 the Vladimir Regional Court granted a further extension of the applicant's detention for three months, that is to say until 3 March 2003 [the decision mistakenly indicates 2002].", "The grounds invoked by the court were identical to those set out in the decision of 18 November 2002. 46. On 22 and 26 November and 5 December 2002 the applicant's lawyers lodged appeals against the decisions of 18 November and 4 December with the Supreme Court. They submitted, in particular, that the six-month period of the applicant's detention which had started from the moment the case was referred for trial, had expired on 2 March 2002 but had been extended only two months and sixteen days later, on 18 November. Therefore, the applicant's detention from 13 March to 12 September 2002 had not been covered by any detention order: the prosecution had not assumed responsibility for the case, whilst the courts considered that the case had been remitted for an additional investigation and held the prosecution accountable for the applicant's detention.", "47. On 3 March, 28 May, 28 August and 27 November 2003 and 27 February 2004 the Vladimir Regional Court authorised further extensions of detention in respect of the applicant and 12 co-defendants, on each occasion for a period of three months. The reasons given in the decisions of 3 March, 28 May and 28 August 2003 were identical to those given in the decisions of 18 November and 4 December 2002 (see above). The decisions of 27 November 2003 and 27 February 2004 referred to the gravity of the charges and the existence of “sufficient reasons to believe that the defendants would abscond”. The applicant submitted appeals against each of these decisions.", "48. Between May 2003 and 15 March 2004 the trial proceeded. On 19 April 2004 the parties began their final submissions. 49. On 28 May 2004 the Vladimir Regional Court, by an interim decision, held that the applicant's detention on remand was not to be extended because the prosecution had reduced the charges against him.", "He appears to have been released from custody the same day. 50. On 21 March 2005 the Supreme Court examined the applicant's and/or his co-defendants' appeals against the decisions of 18 November and 4 December 2002, 3 March, 28 May, 28 August and 27 November 2003 and 27 February 2004 extending their detention on remand. The Supreme Court quashed the decisions of 18 November and 4 December 2002 and 3 March 2003 on the ground that they had been given by an incomplete formation: a single judge instead of a three-judge panel. As regards the applicant's situation, it further held: “Since the judge's decision has been quashed because of a breach of the rules of criminal procedure, the court will not examine the arguments in the appeals alleging that the extension of the [applicant's] detention was unlawful on other grounds.", "The matter will not be remitted for a new examination because [the applicant] has been acquitted.” The Supreme Court upheld the other decisions, finding that the Regional Court had correctly referred to the gravity of the charges and the existence of sufficient grounds to believe that the defendants would abscond during the trial. G. Discontinuation of the criminal proceedings 51. On 18 June 2004 the Vladimir Regional Court, by an interim decision, dismissed the charges of participation in an organised criminal enterprise and running an opium den against the applicant after they were withdrawn by the prosecution. 52. By another interim decision of the same date, the court dismissed a charge against the applicant in respect of one incident of drug possession because of a recent change in the Russian criminal law that had decriminalised possession of negligible amounts of drugs.", "53. Finally, by a judgment of the same date, the court acquitted the applicant of the remaining drug-trafficking charges because his involvement in the commission of the offences could not be proven. Some of his co-defendants were convicted and sentenced to various terms of imprisonment. 54. On 21 March 2005 the Supreme Court of the Russian Federation upheld, on appeal, the above judgment and decisions of the Vladimir Regional Court.", "H. Decisions of the Constitutional Court 55. On 10 December 2002 the Constitutional Court examined the applicant's complaint concerning his exclusion from the proceedings before the Supreme Court and confirmed that the applicant should have had the right to appear in person and plead his case before the court if a prosecutor was present. 56. On 15 July 2003 the Constitutional Court issued decision (определение) no. 292-O on the applicant's complaint about the ex post facto extension of his “detention during trial” by the Regional Court's decision of 18 November 2002.", "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 release anyone who is unlawfully held in custody beyond the time-limit established in the Code immediately. 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...” 57.", "On 22 January 2004 the Constitutional Court delivered decision no. 66-O on the applicant's complaint about the Supreme Court's refusal to permit him to attend the appeal hearings on the issue of detention. It held: “Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...” I. Conditions of the applicant's detention and in which he was transported 1. The applicant's detention in facility no.", "OD-1/T-2 58. From 16 February 2000 to 28 May 2004 the applicant was held in detention facility no. OD-1/T-2 of the Vladimir Region (учреждение ОД‑1/Т-2 УИН МЮ РФ по Владимирской области), known as “Vladimirskiy Tsentral”. He stayed in various cells in wings nos. 3 and 4, built in 1870 and 1846, respectively.", "(a) Number of inmates per cell 59. According to a certificate issued on 22 April 2004 by the facility director, and which the Government have produced, the applicant was kept in eight cells described as follows: cell no. 4-14 (12.1 square metres, 6 bunks, average population 4 to 6 inmates), cell no. 4-13 (12.3 sq. m, 6 bunks, 5 to 7 inmates), cell no.", "4-9 (23.4 sq. m, 13 bunks, 13 to 20 inmates), cells nos. 3-3, 3-53, 3-54, 3-51 and 3-52 (35 to 36 sq. m, 16 bunks, 12 to 18 inmates). 60.", "The applicant did not dispute the cell measurements or the number of bunks. He disagreed, however, with the figure given by the Government for the number of inmates. According to him, between February and December 2000 he stayed in cell no. 4-9 that housed 18 to 35 inmates and between December 2000 and May 2004 he was kept in cells measuring approximately 36 sq. m, together with 20 to 40 other detainees.", "After the new Code of Criminal Procedure came into effect on 1 July 2002, the number of inmates in his cell dropped to between 15 and 25. Given the lack of beds, inmates slept in eight-hour shifts. They waited for their turn sitting on the concrete floor or on a stool if one was available. In support of his statements the applicant produced written depositions by three former cellmates, Mr Abdurakhmon Kayumov, Mr Sergey Gunin and Mr Yan Kelerman. They stated, in particular, that in 2003-2004 cell no.", "3-52 had housed 20 to 30 inmates (Mr Kayumov's deposition) or even 25 to 35 (Mr Gunin's deposition), as had cells nos. 3-51 and 3-53. They also testified that they and the other detainees had slept in turns. (b) Sanitary conditions and installations 61. The Government, relying on a certificate of 8 April 2004 from the facility director, submitted that the “sanitary and anti-epidemic condition of the facility remained satisfactory, including... in the cells where [the applicant] had been held”.", "Another certificate of 20 April 2004 showed that “the cells... were equipped with [a lavatory pan] placed no more than 10 cm above the floor and separated by a partition of 1.5 m in height with additional curtains”. Running tap water was available and detainees were permitted to use immersion heaters. 62. The applicant conceded that there had been no outbreaks of contagious diseases or epidemics. Apart from that, the sanitary conditions were wholly unsatisfactory.", "Prisoners infected with tuberculosis, hepatitis, scabies and the human immunodeficiency virus (HIV) were occasionally held in his cell. The cells were infested by lice, bed-bugs, flies, mosquitoes, cockroaches, rats and mice, but the facility administration did not provide any repellents or insecticides. Detainees were not given any toiletries, such as soap, toothbrush, toothpaste or toilet paper, apart from 100 grams of caustic soda once a week and two plastic bottles of bleach (1.5 litres each) every two or three months. Cells had no ventilation systems. In winter they were cold and in summer it was hot, stuffy and excessively damp inside.", "63. The applicant challenged the Government's description of the toilet facilities as factually untrue. The cast-iron pan was raised on a pedestal about 50-80 cm high and separated from the living area from one side with a one-metre-high partition. The person using the toilet was in full view of other inmates. No curtains were provided; occasionally the inmates hung a sheet but wardens tore it down and disciplined those responsible.", "What is more, the lavatory pan had no seat or cover: inmates stuck an empty plastic bottle in the hole in order to prevent smells from spreading. The dining table was fixed to the floor just a few metres from the pan. His description was corroborated by written depositions by former cellmates, Mr Kayumov, Mr Gunin, Mr Kelerman and Mr Sergey Kalenik, and four colour photos showing the lavatory pan and the dining table from various angles. (c) Food 64. The Government asserted that “the applicant was fed in accordance with the established legal norms”.", "It appears from an undated certificate signed by the facility director that his daily diet consisted of 100 g of meat, 100 g of fish, 100 g of groats, 20 g of pasta, 20 g of salt, 1 g of tea [sic], 0.5 kg of potatoes, 0.25 kg of vegetables, 0.55 kg of bread. 65. The applicant submitted that the food was of an extremely low quality. Many a meal only contained so-called balanda, a soup-like mix of millet, barley and pasta without any fat. Meat was replaced with a soya substitute.", "No fresh vegetables were given, occasionally the evening meal included cooked beetroot, sauerkraut or pickled cucumbers. Salt and tea were never distributed. Written depositions by four of the applicant's former cellmates confirmed these submissions. (d) Outdoor exercise 66. The parties agreed that the applicant had been entitled to a daily walk of about one hour.", "The applicant indicated, however, that he was not able to go outdoors on days when there were court hearings. 67. The Government did not describe the outdoor conditions. The applicant, and four former cellmates in written depositions, portrayed the following picture of the exercise yards: The yards were closed premises measuring 12, 26 or 40 sq. m. The opening to the sky was covered with a metal roof with a one-metre gap between the roof and the top of the walls.", "In summer it was extremely hot and stifling inside as the sun heated the roof. The walls were coated with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls. The entire cell population was brought to the yard at once; occasionally it was impossible to move around, let alone to exercise, because of the sheer number of prisoners. (e) Other issues 68. According to the applicant, metal blinds that prevented natural light getting into the cells were only removed on 28 December 2002 after a delegation that included a representative of the Council of Europe had paid a visit to Vladimir detention facilities.", "The Government did not contest that information. (f) Contact with the outside world 69. The applicant's relatives were not permitted to see him throughout the pre-trial investigation. After the trial began, he was allowed four short visits by his wife, children, sister and brother. At these meetings the applicant and his parents were prohibited from talking in any language other than Russian.", "The applicant was likewise prohibited from corresponding with his relatives other than in Russian: the facility administration refused to dispatch or hand over letters written in Tajik. 70. The Government explained that these restrictions had been due to the lack of a staff interpreter from Tajik in the facility. 2. Conditions of the applicant's transport to and from the courthouse 71.", "The applicant was transported from the remand centre to the Vladimir Regional Court for hearings on 205 occasions; of these hearings, 185 concerned the charges against him and 20 applications for extensions of detention. The applicant offered the following description of these days, which was corroborated by written depositions from four former cellmates. 72. On the day of the hearing he was woken up at 4 or 5 a.m. At about 8 a.m. he was taken from his cell to the so-called “assembly cell”, together with other detainees who had a hearing on that day. Each “assembly cell” measured 9.2 to 9.9 sq.", "m and housed 10 to 20 prisoners. “Assembly cells” had no ventilation system and the air was soon heavy with smoke. At about 9 or 9.30 a.m. the applicant was taken to a van. 73. The prison van had one collective compartment designed for four prisoners and six individual compartments of one sq.", "m. It was designed to carry ten prisoners. However, it transported between 15 and 20 and on one occasion 27 detainees. The applicant was put in an individual compartment together with another prisoner. Owing to the lack of space, one of them would sit on the bench and the other on his lap. The route to the Vladimir Regional Court took one hour and the van called at other facilities on its way.", "74. The applicant did not normally arrive back at the prison until 6 or 8 p.m. During the day he received no food or outdoor exercise and was liable to miss out on the shower he was allowed periodically. 75. The Government submitted that the applicant had been transported in special prison vans that met the standard requirements. The route from facility no.", "OD-1/T-2 to the Vladimir Regional Court was eight kilometres long and took thirty minutes. II. RELEVANT DOMESTIC LAW 76. 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”). A. Preventive measures 77. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89 of the old CCrP, Article 98 of the new CCrP). B.", "Authorities ordering detention on remand 78. The Russian Constitution of 12 December 1993 establishes 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 on remand 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). C. Grounds for ordering detention on remand 79.", "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 re-offend (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). 80. Before 14 March 2001, detention on remand 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 or if they had previously defaulted or 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 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. D. Time-limits for detention on remand 1. Two types of detention on remand 81. The Codes distinguished between two types of detention on remand: the first being “pending the investigation”, that is while a competent agency – the police or a prosecutor's office – investigated the case, and the second “before the court” (or “during the trial”), that is while the case was being tried in court.", "Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 2. Time-limits for detention “pending the investigation” 82. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances”.", "Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 83. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 84.", "Access to the file materials 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 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. 85. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial.", "In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 3. Time-limits for detention “before the court”/”during the trial” 86.", "From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”). 87. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” 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. 88. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file and to the date the judgment is given. The period of detention “during the trial” 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). E. Proceedings to examine the lawfulness of detention During detention “pending the investigation” 89.", "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). 90. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10).", "During the trial 91. Upon receipt of the case-file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 92. At any time during the trial the court may order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP).", "Any such decision must be given in the deliberations room and signed by all the judges in the formation (Article 261 of the old CCrP, Article 256 of the new CCrP). 93. An appeal against such a decision lies to the 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). F. Time-limits for trial 94.", "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 return the case for an additional 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 (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial 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. 95.", "The duration of the trial is not limited in time. 96. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible.", "The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374). III. RELEVANT INTERNATIONAL INSTRUMENTS 97. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation... 11.", "In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.", "14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.", "20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.", "45... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...” 98. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: Extracts from the 2nd General Report [CPT/Inf (92) 3] “46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.", "47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise.", "The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.", "51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...” Extracts from the 7th General Report [CPT/Inf (97) 10] “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf.", "CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...” Extracts from the 11th General Report [CPT/Inf (2001) 16] “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention.", "The negative effects of prison overcrowding have already been highlighted in previous General Reports... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation.", "They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 99. The applicant complained that the conditions of his detention in facility no.", "OD-1/T-2 “Vladimirskiy Tsentral” and transport to and from the courthouse were in breach of Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Conditions of detention in facility no. OD-1/T-2 1. The parties' submissions 100. The Government submitted that, while in facility no.", "OD-1/T-2 the applicant had had at all times no less than 2 sq. m for himself. He had been assigned an individual bunk and given bedding. The sanitary conditions were satisfactory, there was running tap water and detainees could use their own immersion heaters. The applicant had had at least one hour of outdoor activity daily and the food was in compliance with the applicable standards.", "The applicant had been permitted to talk to his relatives, and to correspond with them, in Russian because there was no staff interpreter from Tajik and because the law did not provide for the presence of an interpreter during parental visits. The applicant had not complained of harassment by or threats from other detainees or the facility wardens. 101. The applicant challenged the Government's submissions as factually inaccurate. He indicated that the number of inmates per cell had been significantly greater than that suggested by the Government, that cells were infected with parasites and excessively humid.", "The placement and partitioning of the lavatory pan offered no privacy whatsoever and contributed to a further infestation of the cell. The quality of food was wholly unsatisfactory. There was no real opportunity for outdoor exercise because the exercise yards were overcrowded and also covered with metal roofs that severely limited access to fresh air. The applicant submitted that the conditions of his detention fell foul of paragraphs 12, 15 and 20 (1) and (2) of the Standard Minimum Rules for the Treatment of Prisoners (cited above). He considered that the requirement to speak in Russian to his small children who spoke only Tajik had been degrading and humiliating.", "He finally indicated that, upon his release, he had been diagnosed with several diseases, such as hypertension and prostatitis, that had been contracted during his detention. The Court's assessment 102. As the Court has held on many occasions, 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 (Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV).", "However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (Valašinas v. Lithuania, no. 44558/98, §§ 100-101, ECHR 2001‑VIII). 103. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.", "Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (Valašinas, cited above, § 102; Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant's specific allegations (Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II). The duration of detention is also a relevant factor.", "104. The Court notes that in the present case the parties have disputed the actual conditions of the applicant's detention at facility no. OD-1/T-2 of Vladimir. However, there is no need for the Court to establish the truthfulness of each and every allegation, because it finds a violation of Article 3 on the basis of the facts that have been presented or are undisputed by the respondent Government, for the following reasons. 105.", "The main characteristic, which the parties have agreed upon, are the measurements of the cells. The applicant claimed that the cell population severely exceeded their design capacity; the Government produced a certificate from the facility director showing that at times the number of inmates was greater than that of the available bunks (cells nos. 4-13, 4-9, 3‑3, 3-51, see paragraph 59 above). It follows that the detainees, including the applicant, had to share the sleeping facilities, taking turns to rest. In smaller, 12 or 24 sq.", "m cells in wing no. 4 where the applicant was kept until December 2000, inmates were afforded less than 2 sq. m of personal space, and in the larger capacity dormitories of wing no. 3, where the applicant stayed until his release in May 2004, detainees had less than 3 sq. m of personal space, even when the cell was filled below its design capacity.", "The parties also agree that, save for one hour of daily outdoor exercise, for the remainder of the day the applicant was locked in the cell which contained all the facilities used by prisoners on a daily basis, such as the washbasin, lavatory and eating utensils. The applicant was held in these conditions for more than four years and three months. 106. In this connection the Court notes that in the Peers case even a much bigger cell (7 sq. m for two inmates) was considered a relevant factor in finding a violation of Article 3, albeit in that case the problem of space was coupled with an established lack of ventilation and lighting (Peers v. Greece, no.", "28524/95, §§ 70-72, ECHR 2001‑III). The present situation is also comparable with that in the Kalashnikov case, where the applicant was confined to a space measuring less than 2 sq. m. In that case the Court held that such a degree of overcrowding in itself raised an issue under Article 3 of the Convention (Kalashnikov v. Russia, no. 47095/99, §§ 96-97, ECHR 2002‑VI). By contrast, in other cases no violation of Article 3 was found, as the restricted space for sleeping was compensated for by the freedom of movement enjoyed by the detainees during the day-time (Valašinas, cited above, §§ 103 and 107; Nurmagomedov v. Russia (dec.), no.", "30138/02, 16 September 2004). 107. The Court considers the lack of space to be the focal point of its analysis. The fact that the applicant was obliged to live, sleep and use the toilet in the same cell with so little personal space was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse within him feelings of anguish and inferiority capable of humiliating and debasing him (Peers and Kalashnikov, cited above, loc. cit.", "; see also the CPT's 11th General Report, § 29). These feelings were further exacerbated by the inordinate length of his detention. 108. Furthermore, while in the present case it cannot be established “beyond reasonable doubt” that the ventilation, heating, lighting or sanitary conditions in the facility were unacceptable from the standpoint of Article 3, the Court notes with concern that the lavatory had no flush system, that until December 2002 the cell windows were covered with metal shutters blocking access to fresh air and natural light (cf. CPT's 11th General Report, § 30) and that the applicant was only permitted to talk to his close relatives in a language they did not master, which made contact with his family more difficult.", "The Government did not suggest that such restrictions were based on security concerns of an appreciable nature (cf. CPT's 2nd General Report, § 51). These aspects combined with the lack of personal space show that the applicant's detention conditions went beyond the threshold tolerated by Article 3 of the Convention. 109. The Court therefore finds that there has been a violation of Article 3 of the Convention as regards the conditions of the applicant's detention in facility no.", "OD-1/T-2. B. Conditions of transport between the facility and the courthouse 1. The parties' submissions 110. The Government submitted that the conditions of transport were compatible with domestic standards and that the convoy service personnel had not committed any breaches of applicable laws.", "111. The applicant claimed that the conditions of transport between the detention facility and the Vladimir Regional Court were inhuman and degrading. “Assembly cells” and passenger compartments were severely overcrowded and gave no access to natural light or air. He was not given food or drink for the entire day and the cumulative effect of these conditions was mental and physical exhaustion. In his view, such conditions were incompatible with paragraph 45 (2) of the Standard Minimum Rules for the Treatment of Prisoners.", "2. The Court's assessment 112. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000‑VII). 113. The Court notes that the only account of the conditions of transport from the remand facility to the Vladimir Regional Court is that furnished by the applicant. His account is corroborated by the written statements of four former cellmates. 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 Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). 114. It is true that in the present case the applicant was not able to take exact measurements of the prison-van compartments or obtain certificates showing the occupancy level. However, the Government could have readily submitted details in support of their contentions, but did not do so and gave no reasons for withholding such information.", "In fact, they confined themselves to asserting that the conditions were compatible with applicable standards and that the travel time was half as long as that claimed by the applicant. No copy of the standards or regulations on prison vans was submitted. In these circumstances the Court will examine the merits of the complaint on the basis of the applicant's submissions. 115. The applicant submitted that on the days of court hearings he was transported to the courthouse by a prison van in which he shared a 1 sq.", "m “individual” compartment with another prisoner. He received no food during the entire day and missed out on outdoor exercise and on occasions the chance to take a shower. 116. The Court has not previously examined the compatibility of transport conditions as such with the requirements of Article 3 of the Convention (however, as regards handcuffing and/or blindfolding of detainees during transport, see Öcalan v. Turkey [GC], no. 46221/99, §§ 182-184, ECHR 2005‑...; and Raninen v. Finland, judgment of 16 December 1997, Reports 1997‑VIII, §§ 56-59).", "It will therefore seek guidance from the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT). 117. As regards the transport of prisoners, the CPT has considered individual compartments measuring 0.4, 0.5 or even 0.8 sq. m to be unsuitable for transporting a person, no matter how short the duration (see CPT/Inf (2004) 36 [Azerbaijan], § 152; CPT/Inf (2004) 12 [Luxembourg], § 19; CPT/Inf (2002) 23 [Ukraine], § 129; CPT/Inf (2001) 22 [Lithuania], § 118; CPT/Inf (98) 13 [Poland], § 68). In the present case the individual compartments in the prison van (measuring one sq.", "m) would not appear to have been in breach of the CPT's standards, assuming that the design capacity was not exceeded and that they were sufficiently lit, ventilated and heated and equipped with adequate seating and fixtures that would prevent prisoners from losing their balance when the vehicle moves (cf. CPT/Inf (2002) 36 [Slovenia], § 95). 118. However, the applicant had to share the individual compartment with another detainee, the two men taking turns to sit on the other's lap. The above-mentioned CPT's findings suggest that it would not have found that situation acceptable.", "The Court likewise considers that the placement of two prisoners in a one sq. m compartment with only one seat was unacceptable. The Government claimed that the journey took only thirty minutes, but the applicant said that the van called at other facilities on the way. As the detainees remained inside the van during that time, it would be appropriate to base the assessment on the applicant's submission that the journey lasted up to one hour. In any event, the Court finds that such transport arrangements are impermissible, irrespective of the duration.", "119. The Court observes that the applicant had to endure these crammed conditions twice a day, on the way to and from the courthouse and that he was transported in that van no fewer than 200 times in four years of detention. On those days he received no food and missed outdoor exercise. It is also relevant to the Court's assessment that the applicant continued to be subjected to such treatment during his trial or at the hearings of applications for his detention to be extended, that is when he most needed his powers of concentration and mental alertness. 120.", "The Court finds that the treatment to which the applicant was subjected during his transport to and from the Vladimir Regional Court exceeded the minimum level of severity and that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 OF THE CONVENTION 121. The applicant complained under Article 5 § 1 (c) of the Convention that his detention on remand was not lawful. The relevant parts of Article 5 read as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...” 1. The parties' submissions 122. The applicant contended that on 8 August 2001 the Supreme Court had quashed the extension order of 28 April 2001 as unlawful and remitted the issue of his detention for re-examination; accordingly, his detention from 28 April 2001 onwards was not “lawful” within the meaning of Article 5 § 1. After the case was sent for trial on 4 September 2001, it took the Regional Court more than four months – instead of the fourteen days required by the old CCrP – to hold the first hearing and examine the request for release.", "The decision of 9 January 2002 was deficient in its reasoning: the applicant was remanded in custody solely on account of the gravity of the charges against him. The applicant further submitted that neither the Regional Court's decision of 13 March 2002 nor the Supreme Court's decision of 12 September 2002 had addressed the arguments for or against his release. He indicated that on 12 September 2002 the Supreme Court had heard the appeal for thirty minutes only. The applicant complained that on 18 November 2002 the Regional Court had extended his detention retrospectively to cover the preceding 2 months and 15 days and that a similar retrospective extension had been made on 4 December 2002 in respect of the previous day. 123.", "The Government averred that the entire term of detention was compatible with the domestic procedural rules and free from arbitrariness. On 28 April 2001 the Vladimir Regional Court had authorised the applicant's detention until 4 September 2001 so as to afford him additional time to read the case file. On 8 August 2001 the Supreme Court quashed that decision on procedural grounds and held that the applicant should remain in custody. From 4 September 2001 to 9 January 2002 the Vladimir Regional Court examined the applicant's case. From 13 March to 7 October 2002 the case was examined by the Supreme Court of the Russian Federation.", "In the Government's opinion, the Russian rules of criminal procedure did not require the applicant's detention to be extended during the latter period. On 12 September 2002 the Supreme Court returned the case file to the Vladimir Regional Court which received it on 7 October 2002. By that time the new CCrP had come into effect, and a new hearing was scheduled for 18 November 2002. On the latter date the applicant's detention was extended until 3 December 2002. 2.", "The Court's assessment (a) General principles 124. 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. 125.", "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; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).", "(b) Scope of the Court's review 126. In its decision of 22 February 2005 on the admissibility of the present application, the Court declared admissible the applicant's complaints concerning the lawfulness of his detention on remand after 4 May 2001. The most recent period of detention which the applicant complained about ended on 4 December 2002. Accordingly, the Court will examine the lawfulness of the applicant's detention on remand from 4 May 2001 to 4 December 2002. (c) Detention on remand from 4 May to 8 August 2001 127.", "The Court observes that on 28 April 2001 the Vladimir Regional Court, on a request by a prosecutor, extended the applicant's detention until 4 September 2001. On 8 August 2001 the Supreme Court quashed the decision because of substantial violations of the rules of criminal procedure and ordered a re-examination of the issue of detention. On 15 August 2002 the Regional Court reconsidered the request and ordered the applicant's detention from 4 May to 4 September 2001. 128. The issue to be determined is whether the detention in that period was “lawful”, including whether it complied with “a procedure prescribed by law”.", "The Court reiterates that a period of detention will in principle be lawful if carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Convention organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, § 42). 129. In the present case the Court will consider whether the detention order of 28 April 2001 constituted a lawful basis for the applicant's detention until it was quashed on 8 August 2001.", "The mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention in the preceding period. For the assessment of compliance with Article 5 § 1 of the Convention the basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court (Benham, cited above, §§ 43 and 46; Lloyd and Others v. the United Kingdom, nos. 29798/96 et seq., §§ 108, 113 and 116, cf. also § 83, 1 March 2005). 130.", "It has not been alleged that on 28 April 2001 the Regional Court acted in excess of its jurisdiction. Indeed, as a matter of domestic law, it had the authority to examine the prosecutor's application for an extension of the applicant's detention and to grant a further extension, not exceeding six months, until such time as the applicant had finished reading the file and the case had been sent for trial (see paragraph 84 above). 131. Furthermore, the Court finds that applicant's detention on the basis of the order of 28 April 2001 cannot be said to have been arbitrary as the court gave certain grounds justifying the continued detention on remand. The sufficiency and relevance of these grounds will be discussed below from the standpoint of Article 5 § 3 of the Convention.", "132. It has not therefore been established that, in issuing the detention order of 28 April 2001, the District Court acted in bad faith, or that it neglected to attempt to apply the relevant legislation correctly. The fact that certain flaws in the procedure were found on appeal does not in itself mean that the detention was unlawful (see Gaidjurgis v. Lithuania (dec.), no. 49098/99, 16 January 2001; Benham, cited above, § 47; cf. also Bozano v. France, judgment of 18 December 1986, Series A no.", "111, § 59). 133. In these circumstances, the Court finds that there was no violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 4 May to 8 August 2001. (d) Detention on remand from 8 August to 4 September 2001 134. The Court notes that on 8 August 2001 the Supreme Court, having quashed the Regional Court's decision, held that the preventive measure imposed on the applicant “should remain unchanged”.", "The Government maintained that the Supreme Court's decision constituted a “lawful” basis for the applicant's detention after 8 August 2001. 135. The Court notes that in several cases against Lithuania it found that the trial court's decision to maintain a preventive measure “unchanged” had not, as such, breached Article 5 § 1 in so far as the trial court “had acted within its jurisdiction... [and] had power to make an appropriate order” (Ječius, cited above, § 69; Stašaitis v. Lithuania (dec.), no. 47679/99, 28 November 2000; Karalevičius v. Lithuania (dec.), no. 53254/99, 6 June 2002).", "In the Stašaitis judgment it noted, however, that “the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time may be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1” (Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002). 136. The Court observes that the Supreme Court did not give any reasons for its decision to remand the applicant in custody. Nor did it set a time-limit either for the continued detention or for a re-examination of the issue of detention by the Regional Court.", "As it happened, the Regional Court did not give a new decision until more than one year later, on 15 August 2002, and the Supreme Court upheld that decision in the final instance in January 2003. Leaving aside the concurrent developments in the applicant's case (discussed below), it transpires that for more than a year the applicant remained in a state of uncertainty as to the grounds for his detention after 8 August 2001. The Supreme Court's failure to give reasons for its decision was made all the more regrettable by the fact that the applicant had by then spent two years and six months in custody without a valid judicial decision setting out the grounds for his detention in detail. 137. In these circumstances, the Court considers that the Supreme Court's decision of 8 August 2001 did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, which together constitute the essential elements of the “lawfulness” of detention within the meaning of Article 5 § 1.", "138. It remains to be determined whether the Regional Court's decision of 15 August 2002, as upheld on appeal on 23 January 2003, could have constituted a “lawful” basis for the applicant's detention from 8 August to 4 September 2001. 139. As noted above, the decision of 15 August 2002 was issued more than a year after the detention period authorised therein had lapsed. The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retrospectively.", "On the contrary, the general habeas corpus provisions required the director of the remand centre to release any detainee once his statutory detention period had expired without any order being made for its extension (Article 11 of the old CCrP). 140. Such has been also the view of the Russian Constitutional Court, which found that Russian law did not contain “any provisions permitting the court to take a decision extending the defendant's detention on remand [some time] after once the previously authorised time-limit has expired, in which event the person is detained for a period without a judicial decision” (see paragraph 56 above). 141. It follows that the applicant's detention, in so far as it had been authorised by a judicial decision issued in respect of the preceding period, was not “lawful” under domestic law.", "142. Furthermore, the Court considers 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 based on concrete grounds and without setting a specific time-limit 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. 143. The Court therefore considers that there was a violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 8 August to 4 September 2001.", "(e) Detention on remand from 4 September 2001 to 9 January 2002 144. The Court further notes, and it has not been disputed by the parties, that between the date of expiry of the authorised detention period on 4 September 2001 and the Vladimir Regional Court's subsequent decision of 9 January 2002 on the application for release, there was no decision – either by a prosecutor or by a judge – authorising the applicant's detention. It is also common ground that in that period the applicant was held in detention on the basis of the fact that the criminal case against him had been referred to the court competent to deal with the case. 145. The Government maintained that the detention was lawful because it complied with the substantive and procedural provisions of the rules of criminal procedure.", "The Regional Court was not required to extend the applicant's detention or otherwise validate it. 146. The Court has already examined and found a violation of Article 5 § 1 in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been lodged with the court competent to try the case (see Baranowski, cited above, §§ 53-58; Ječius, cited above, §§ 60-64). It held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (ibid.). 147.", "The Court sees no reason to reach a different conclusion in the present case. Admittedly, unlike the Polish law at the relevant time which set no time-limit for the detention after a bill of indictment had been lodged with the court (see Baranowski, §§ 31-35, in particular, the last paragraph of the Polish Supreme Court's resolution of 6 February 1997), the Russian rules of criminal procedure set a time-limit. Within fourteen days of receipt of the file the court has to determine whether the case is ready for trial and, if so, fix the hearing date and order the defendant's release or continued detention (see paragraphs 91 and 94 above). Thus, detention without an order was limited to fourteen days maximum, at least in theory. 148.", "The Court, however, is not persuaded that the existence of the time-limit in Russian law does in fact distinguish the present case from the Baranowski and Ječius cases. 149. Firstly, for the detention to meet the standard of “lawfulness”, it must have a basis in domestic law (see paragraph 124 above). The Government, however, did not point to any legal provision which permitted an accused to continue to be held once the authorised detention period had expired. The Court notes that under the Russian Constitution and rules of criminal procedure the power to order or prolong detention on remand was vested in prosecutors and courts (see paragraph 78 above).", "No exceptions to that rule were permitted or provided for, no matter how short the duration of the detention. As noted above, during the relevant period there was neither a prosecutor's order nor a judicial decision authorising the applicant's detention. It follows that the applicant was in a legal vacuum that was not covered by any domestic legal provision. 150. Furthermore, as in the present case, in which the Vladimir Regional Court took more than four months to decide on a preventive measure, the fourteen-day time-limit was not complied with in practice.", "The Government did not offer any explanation for the delay. 151. It follows that during the period from 4 September 2001 to 9 January 2002 there was no valid domestic decision or other “lawful” basis for the applicant's detention on remand. By itself, the fact that the case had been sent to the court for trial did not constitute a “lawful” basis, within the meaning of Article 5 § 1 of the Convention, for the applicant's continued detention. There has thus been a violation of Article 5 § 1 of the Convention in respect of that period.", "(f) Detention on remand from 9 January to 13 March 2002 152. The Court notes that on 9 January 2002 the Vladimir Regional Court fixed the date for the trial to commence and rejected the applicant's application for release. It remanded the applicant and his co-defendants in custody because of the gravity of the charges against them. The trial court acted within its powers in making that decision and there is nothing to suggest that it was invalid or unlawful under domestic law. The question whether the reasons for the decision were sufficient and relevant is analysed below in connection with the issue of compliance with Article 5 § 3.", "In the Stašaitis decision (cited above) the Court accepted that a similar decision by a trial court was compatible with the requirements of Article 5 § 1 of the Convention. There is nothing in the present case to warrant a different conclusion. 153. The Court finds that there has been no violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 9 January to 13 March 2002. (g) Detention on remand from 13 March to 12 September 2002 154.", "The Court notes that on 13 March 2002 the Vladimir Regional Court identified certain procedural defects and returned the case to the prosecution for them to be remedied. It extended the applicant's detention for an indefinite period. The applicant appealed, arguing, in particular, that the investigators had already used up all the time permitted for detention “pending the investigation” and no further extensions were permissible. On 12 September 2002 the Supreme Court quashed the Regional Court's decision on procedural grounds, without examining the applicant's arguments pertaining to the lawfulness of his detention. 155.", "The Court observes that the rules on detention at the time permitted up to eighteen months' detention “pending the investigation”, plus up to six months when authorised by a judicial decision if the defendants needed more time to study the file, and an additional month when authorised by a supervising prosecutor if the case was returned for an additional investigation (see paragraphs 82-85 above). 156. Turning to the present case, the Court notes that the eighteen months' detention “pending the investigation” expired on 4 April 2001[1]. The prosecutor then authorised an additional month of custody until 4 May 2001 and thereafter the trial court exercised its right to grant a further four-month extension until 4 September 2001. It follows that the authorities exhausted the legal possibilities for extending the applicant's detention “pending the investigation”.", "In these circumstances, no further extension appears to have been possible under domestic law. 157. The Government did not indicate any legal provision that permitted a defendant to be held in custody after the expiry of the above time-limits. The Court notes that the Regional Court's decision of 13 March 2002 was extremely laconic with regard to the issue of detention and made no reference to any legal provision which would have permitted the applicant's further detention. It follows that the decision did not offer sufficient protection from arbitrariness and failed to satisfy the standard of “lawfulness” required under Article 5 § 1 of the Convention.", "158. The Court therefore finds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 13 March to 12 September 2002. (h) Detention on remand from 12 September 2002 to 18 November 2002 159. The Court notes that on 12 September 2002 the Supreme Court instructed the Regional Court to proceed with the trial and confirmed that the defendants should remain in custody. It follows that from that date onwards, the applicant's detention was “during the trial”.", "It is relevant here to recall that on 13 March 2002, the final day of the applicant's previous period in detention “during the trial”, the applicant had already been in that type of detention for six months and several days (starting from the date the case was referred for trial in September 2001). At that time this situation was not unlawful under domestic law because the six-month time-limit for detention “during the trial” in the old CCrP did not apply to defendants who, like the applicant, were charged with particularly serious crimes (see paragraph 87 above). However, by the time of the Supreme Court's decision of 12 September 2002 ordering the applicant's continued detention “during the trial”, the new CCrP was already effective. After the expiry of the initial six months it required the trial court to issue a separate decision extending the detention “during the trial” (see paragraph 88 above). 160.", "The Government claimed that the applicant's detention was covered by the Supreme Court's decision up to 7 October 2002, on which date the case-file reached the Regional Court, and thereafter by the fact that the first hearing had been fixed for 18 November 2002. Accepting, for the sake of argument, the Government's explanation, the Court considers that in such eventuality the applicant's detention after 7 October 2002 would have been incompatible with Article 5 § 1 of the Convention because the Supreme Court's decision of 12 September 2002 would have ceased to apply and no other order for detention had been issued. In this connection the Court refers to its findings in paragraphs 146-151 above in respect of a similar period of detention and notes that the new CCrP regrettably inherited from the old CCrP the lack of clear rules governing the detainee's situation after the case had been sent for trial. 161. In any event, the Government's explanation does not satisfy the Court.", "It observes that on 18 November 2002 the Regional Court extended the applicant's detention “for a further three months, until 3 December 2002”. This formula implies, by converse implication, that the trial court did not consider either the Supreme Court's decision of 12 September 2002 or the fact that it had received the file on 7 October 2002 as valid grounds for the applicant's detention and that it felt itself obliged to provide a different basis for his detention during the preceding two months and three weeks. 162. In the Court's view, the Regional Court's decision of 18 November 2002 amounted to an acknowledgement of the fact that the applicant's detention in the preceding period had lacked a sufficiently clear legal basis. The applicant was not therefore afforded sufficient protection from arbitrariness to satisfy the requirements of Article 5 § 1 of the Convention.", "The Regional Court's decision of 18 November 2002 could not remedy the lack of a “lawful” basis in the preceding period as it is incompatible with both domestic law and the Convention guarantees to issue a detention order with retrospective effect (see paragraphs 139-142 above). In any event, the decision of 18 November 2002 was subsequently quashed by the Supreme Court because of the Regional Court's failure to conform to the procedural requirements (see below). 163. The Court finds, accordingly, that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention from 12 September to 18 November 2002. (i) Detention on remand from 18 November to 4 December 2002 164.", "The Court notes that on 18 November 2002 the Vladimir Regional Court, sitting in a single-judge formation, authorised the applicant's detention on remand until 3 December 2002. The applicant alleged, in particular, that his detention from midnight on 3 December to 4 December 2002, when the Regional Court granted a further extension, had been covered by any detention order and had therefore been unlawful. 165. 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 124 above). The Court notes that the Regional Court's detention order of 18 November 2002 was quashed by the Supreme Court on 21 May 2005 because it had been given by an incomplete formation, in breach of the domestic rules of criminal procedure.", "This indicates that the court, sitting in a single-judge formation, did not have jurisdiction to order the applicant's continued detention and that the order of 18 November 2002 was null and void ab initio (see paragraph 129 above). It follows that the decision of 18 November 2002 could not have formed a “lawful” basis for the applicant's detention on remand after that date. 166. In the absence of any other decision that could have served as a “lawful” basis for the applicant's detention in the period to 4 December 2002, the Court finds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 18 November to 4 December 2002. 3.", "Summary of the findings 167. The Court has found no violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 4 May to 8 August 2001 and from 9 January to 13 March 2002. 168. The Court has found a violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 8 August 2001 to 9 January 2002 and from 13 March 2002 to 4 December 2002. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 169. The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been excessively long. Article 5 § 3 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...” 1. The parties' submissions 170. The Government submitted that it had been necessary for the applicant to remain in custody because he was a foreign national charged with a particularly serious criminal offence.", "He had no permanent residence in the Russian Federation and thus would have been liable to abscond if released. 171. The applicant responded that the decisions extending his detention were identically worded and more often than not did not state any concrete reason as to why it was necessary to hold him in custody. 2. The Court's assessment (a) Principles established in the Court's case-law 172.", "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 justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release.", "It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita, cited above, § 152). 173. 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). 174. 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 principles to the present case 175. The applicant's detention on remand lasted from 22 January 1999, when he was taken in custody, to 28 May 2004, when he was released. The total duration of the detention thus amounted to five years, four months and six days. However, the Court does not lose sight of the fact that in the periods from 8 August 2001 to 9 January 2002 and from 13 March 2002 to 4 December 2002 the applicant's detention was not in accordance with Article 5 § 1 of the Convention. 176.", "The Court accepts that the applicant's detention may initially have been warranted by a reasonable suspicion that he was involved in drug-trafficking. As noted in the District Court's decision of 28 December 1999, at that stage of the proceedings the need to ensure the proper conduct of the investigation and to prevent the applicant from absconding – having regard to his foreign nationality and permanent residence outside Russia – could justify keeping him in custody. 177. However, with the passage of time those grounds inevitably became less and less relevant. Accordingly, the domestic authorities were under an obligation to analyse the applicant's personal situation in greater detail and to give specific reasons for holding him in custody.", "The Government submitted that the courts had gauged the applicant's potential to abscond by reference to his foreign nationality and lack of permanent residence in Russia. However, contrary to the Government's submission, after the case had been sent for trial for the first time in June 2000, these particular reasons were not cited in any valid extension order. 178. The Court further notes that at no point in the proceedings did the domestic authorities consider whether the length of the applicant's detention had exceeded a “reasonable time”. Such an analysis should have been particularly prominent in the domestic decisions after the applicant had spent more than two years in custody and all the detention periods permitted by the domestic law had expired (see paragraphs 156 et seq.", "above). 179. After the trial started, the Regional Court extended the applicant's detention seven times. The first three extensions were subsequently quashed by the Supreme Court on the ground that they had been given by the incomplete bench. All the decisions cited the gravity of the charges as the main ground for the continued detention.", "The two most recent decisions additionally mentioned “sufficient reasons to believe that the defendants would abscond”. Moreover, five decisions – dated between 18 November 2002 and 28 August 2003 – referred to the need “to secure... the enforcement of the conviction”. The Court notes that this ground for detention is only provided for in Article 5 § 1 (a) which governs detention of a person “after conviction by a competent court”. However, in the present case the applicant had not been convicted and the domestic courts' reliance on that ground amounted to a prejudgment of the merits of the case, leaving a conviction as the only possible outcome of the trial. 180.", "The Court accepts that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding. In view of the seriousness of the accusation against the applicant the authorities could reasonably consider that such an initial risk was established. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov v. Bulgaria, no.", "33977/96, § 81, 26 July 2001). This is particularly true in cases, such as the present one, where the characterisation in law of the facts – and thus the sentence faced by the applicant – was determined by the prosecution without judicial review of the issue whether the evidence that had been obtained supported a reasonable suspicion that the applicant had committed the alleged offence. Indeed, the Court observes that the applicant was only released from custody after the prosecution had applied to his acts a different characterisation in law. Further, less than a month after his release the prosecution decided to drop most of the charges and the trial court acquitted the applicant of those that remained. 181.", "As regards the existence of a risk of absconding, the Court reiterates that such a danger 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 danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Panchenko, cited above, § 106; Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43). In the present case the decisions of the domestic authorities gave no reasons why, notwithstanding the arguments put forward by the applicant in support of his applications for release, they considered the risk of his absconding to be decisive. The domestic decisions merely hinted at the existence of “sufficient grounds to believe that the defendants would abscond”, without saying what those grounds actually were.", "The Court finds that the existence of such a risk was not established. 182. The Court finally observes that during the entire period of the applicant's detention on remand, the authorities did not consider the possibility of ensuring his presence at trial by the use of other “preventive measures” – such as conditional bail or an undertaking not to leave the town – which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings (see paragraph 77 above). 183. In that context, the Court would emphasise that under Article 5 § 3 the authorities are obliged to consider alternative measures of ensuring his appearance at trial when deciding whether a person should be released or detained.", "Indeed, the provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Sulaoja v. Estonia, no. 55939/00, § 64 in fine, 15 February 2005; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). 184. Given that the applicant's trial would not be able to begin for a considerable time owing to events wholly unrelated to his conduct (see paragraph 188 below), the authorities should either have considered having recourse to such alternative measures or at minimum explained in their decisions why such alternatives would not have ensured that the trial would follow its proper course.", "This failure is made all the more inexplicable by the fact that the new CCrP expressly requires the domestic courts to consider less restrictive “preventive measures” as an alternative to custody (see paragraph 80 in fine above). 185. In sum, the Court finds that the domestic courts' decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the applicant's release pending trial, such as his deteriorating health and family connections in the region. It is of particular concern to the Court that the Russian authorities persistently used a stereotyped summary formula to justify extensions of detention: the Regional Court reproduced the same one-paragraph text verbatim in five decisions between 18 November 2002 and 28 August 2003 and a slightly modified version in two later decisions.", "186. Moreover, in the present case the Court observes an established practice of issuing collective extension orders, that is judicial decisions extending the period of detention of several co-defendants at the same time, thereby ignoring the personal circumstances of individual detainees. In the Court's view, this practice is incompatible, in itself, with the guarantees enshrined in Article 5 § 3 of the Convention in so far as it permitted the continued detention of a group of persons (including the applicant), without a case-by-case assessment of the grounds or compliance with the “reasonable-time” requirement in respect of each individual member of the group. 187. Having regard to the above, the Court considers that by failing to address concrete facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities prolonged the applicant's detention on grounds which cannot be regarded as “relevant and sufficient”.", "188. That finding would, as a rule, absolve the Court from having to determine whether the national authorities displayed “special diligence” in the conduct of the proceedings. However, in the present case the Court cannot but note that delays in the proceedings were more than once occasioned by failings on the part of the authorities. Thus, the trial court was unable to begin the examination of the case in earnest from June 2000 to April 2001 because the prosecution persistently failed to arrange for a translation of the bill of indictment into Tajik, the language spoken by seven of the defendants. After that defect had been rectified, the domestic courts were unable to agree whether other procedural shortcomings had irreparably impaired the defence rights and this led to a further delay from March to September 2002.", "Furthermore, on each occasion the file was returned to the Regional Court, it took a considerable amount of time – ranging from one and a half to four months – merely to fix the hearing date. Having regard to these circumstances, the Court considers that the domestic authorities failed to display “special diligence” in the conduct of the proceedings. 189. There has therefore been a violation of Article 5 § 3 of the Convention. III.", "ALLEGED VIOLATIONS OF ARTICLE 5 § 4 OF THE CONVENTION 190. The applicant complained under Article 5 § 4 of the Convention that he had not been permitted to take part in the appeal hearings and that the courts had not pronounced “speedily” on the lawfulness 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.” 1. The parties' submissions 191. As regards the proceedings on his appeal against the Regional Court's decision 28 April 2001, the applicant contended that it had taken the Supreme Court seventy-two days to fix the first appeal hearing, which was by no means a “speedy” review.", "After the hearing of 9 July 2001 had had to be adjourned, the next hearing was not fixed until almost a month later, which could not be considered sufficiently “speedy” either. The applicant claimed that the Supreme Court's persistent refusals to permit his attendance at the appeal hearing had been in breach of the decisions of the Russian Constitutional Court on his complaints (see paragraphs 56 and 57 above). 192. As regards the “speediness” of the review, the Government submitted that there had been “objective reasons” for the length of the proceedings, such as the failure of the applicant's counsel to attend hearings, his repeated requests for adjournments and his appeals to the higher court. As to the applicant's presence before the appeal court, the refusal to permit the applicant's attendance had been consistent with Article 335 of the CCrP, which restricted the right to appear before the appeal court to persons who had been convicted or acquitted.", "2. The Court's assessment (a) Principles established in the Court's case-law 193. The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Navarra v. France, judgment of 23 November 1993, Series A no. 273‑B, § 28; Toth v. Austria, judgment of 12 December 1991, Series A no.", "224, § 84). The requirement that a decision be given “speedily” is undeniably one such guarantee; while one year per instance may be a rough rule of thumb in Article 6 § 1 cases, 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) Appeal against the judicial decision of 28 April 2001 194. The Court notes that on 4 and 17 May 2001 the applicant appealed against the Regional Court's decision of 28 April 2001 extending his detention on remand. After that decision had been quashed on appeal and the matter had been reconsidered by the Regional Court the Supreme Court gave a final decision on 23 January 2003. In these proceedings the Supreme Court twice refused the applicant leave to appear before it; the applicant's lawyer was, however, present. 195.", "The Court notes that the proceedings that followed the applicant's appeal against the Regional Court's decision of 28 April 2001 lasted more than one year and eight months until the final decision of the Supreme Court. Even though the Government offered an explanation for some of the delays, they did not explain, for example, why it had taken the Supreme Court more than five months to examine the appeal against the Regional Court's second decision, whereas, under domestic law, any appeal should have been examined within two months maximum (see paragraph 96 above). The Government did not indicate the reasons for the Supreme Court's failure to abide by that time-limit. In any event, the Court considers that no exceptional circumstances could justify such inordinate delays in proceedings concerning the lawfulness of detention. 196.", "The Court finds therefore that there has been a violation of Article 5 § 4 of the Convention on account of the length of the proceedings on the applicant's appeal against the Regional Court's decision of 28 April 2001. In the light of this finding, the Court does need not to determine whether the refusal of leave to appear also entailed a violation of Article 5 § 4. (c) Application for release of 4 September 2001 197. The Court notes that, once the case was sent for trial on 4 September 2001, the applicant immediately lodged an application for release, which the Regional Court examined and rejected on 9 January 2002. 198.", "The Court observes that under the domestic law in force at the time the trial court was required to decide an application for release within fourteen days after receipt of the case file (Articles 223 and 2231 of the old CCrP, see paragraphs 91 and 94 above). The Government did not explain why that provision had not been complied with in the applicant's case. The Court considers that a period of 125 days cannot be considered compatible with the “speediness” requirement of Article 5 § 4, especially as the legal basis for the applicant's detention had shifted. 199. Accordingly, the Court finds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to examine the applicant's application for release of 4 September 2001 “speedily”.", "(d) Appeals against the judicial decision of 9 January 2002 200. The Court notes that on 9 January 2002 the trial court extended the applicant's detention pending trial. On 5 February 2002 it adjourned the hearing because of the absence of three defendants. On 11 and 15 February 2002 the applicant lodged appeals against these decisions and the notice of appeal of 15 February repeated the points that had been raised in the notice of appeal dated 11 February. 201.", "The applicant contended, and this was not contested by the respondent Government, that the registry of the Regional Court had omitted to send his notices of appeal to the Supreme Court. 202. The Court finds therefore a violation of Article 5 § 4 of the Convention on account of the manifest failure of the domestic authorities to examine the applicant's appeals against the extension order of 9 January 2002. (e) Appeal against the judicial decision of 13 March 2002 203. The Court notes that on 29 April 2002 the applicant appealed against the trial court's decision of 13 March 2002 that had resulted in his detention being extended.", "The appeal was not examined by the Supreme Court until 12 September 2002. The Supreme Court refused the applicant's request for leave to appear in person. 204. For the same reasons as above, the Court considers that a period of 134 days was incompatible with the “speediness” requirement of Article 5 § 4 of the Convention and that there has been a violation of that provision. (f) Appeals against the decisions of 18 November and 4 December 2002 205.", "The Court notes that on 22 and 26 November and 5 December 2002 the applicant appealed against the decisions of 18 November and 4 December 2002 extending his pre-trial detention. He initially alleged that the Supreme Court had chosen not to examine his appeals. On 21 March 2005, after the case had been declared admissible, the Supreme Court quashed the decisions of 18 November and 4 December 2002 on procedural grounds. However, the applicant maintained that the Supreme Court's order quashing the decision of 4 December 2002 was made on his co-defendants' appeals only, not his appeal of 5 December 2002. 206.", "The Court considers, firstly, that the examination of an appeal more than two years after it was lodged obviously failed to meet the “speediness” requirement of Article 5 § 4. It need not, however, determine whether the applicant's appeal of 5 December 2002 was considered because the Supreme Court expressly refused to take cognisance of any arguments concerning the substantive aspects of the lawfulness of the applicant's detention or to remit that matter for consideration by a lower court. Such a refusal clearly infringed the applicant's right to take proceedings by which the lawfulness of his detention would be decided. 207. The Court finds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to consider the substance of the applicant's appeals against the judicial decisions of 18 November and 4 December 2002.", "3. Summary of the findings 208. The Court has found a violation of Article 5 § 4 of the Convention on account of: – the length of proceedings on the applicant's appeal against the decision of 28 April 2001; – the failure to examine “speedily” his application for release of 4 September 2001 and his appeal against the decision of 13 March 2002; – the failure to examine his appeals against the extension order of 9 January 2002; – the failure to consider the merits of his appeals against the decisions of 18 November and 4 December 2002. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 209.", "The Court, of its own motion, raised the question whether the length of the criminal proceedings against the applicant was compatible with the “reasonable-time” requirement of Article 6 § 1 of the Convention, which provides, in the relevant part, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 1. The parties' submissions 210. The Government submitted that the length of the proceedings had been reasonable, having regard to the volume of the case (22 binders), the large number of defendants (21) and witnesses (over 100), the use of interpreters, consistent failures by the defendants' counsel, including the applicant's lawyer, to attend hearings and their repeated requests for adjournments on various grounds. 211. The applicant contended that only 12 of the binders concerned the merits of the charges, while the others only included procedural documents.", "The investigators had “artificially inflated” the volume of the case-file because they had charged all the defendants with serious criminal offences without a sufficient factual basis. In the applicant's view, the prosecution's decision to drop a number of the charges during the final pleadings and his acquittal by the court of the remainder confirmed that allegation. Contrary to the Government's submissions, the actual number of witnesses was 61, each of whom was called to the witness stand for fifteen minutes only. As to the interpreters, it was precisely because of the domestic authorities' failure to make interpretation available in good time that it had become necessary to return the case for an additional investigation with the resultant delay in the proceedings. As to the lawyers' conduct, the applicant indicated that on extremely rare occasions the case had been adjourned due to his lawyer's absence and, in any event, he had consented to the continuation of the proceedings without his lawyer's presence.", "212. The applicant submitted that the domestic authorities' conduct had caused the most significant delays in the proceedings: copies of procedural decisions had been handed over to the defendants several weeks after the expiry of the time-limits. It had taken the trial court 96 days to fix the first hearing and the interval between hearings had sometimes been as long as 27 days. The time it had taken for the case file to be transferred between the Vladimir Regional Court and the Supreme Court was excessive, ranging from 25 to 40 days. Finally, between 10 July 2003 and 15 March 2004 the trial could have fixed a tighter schedule of hearings so as to avoid delays that had ranged from two to ten days.", "2. The Court's assessment 213. The period to be taken into consideration in the present case began on 22 January 1999 when the applicant was taken into custody. It ended on 21 March 2005 when the Supreme Court handed down the appeal decisions. The proceedings thus lasted six years and two months.", "214. The Court acknowledges that the case was of a certain complexity as it concerned a substantial number of drug-related offences allegedly committed by more than twenty defendants. The need to use interpreters to and from the Uzbek and Tajik languages was a further complicating factor. However, in the Court's view, the complexity of the case does not suffice, in itself, to account for the length of the proceedings. 215.", "The Government's submissions about the persistent absence of counsel were not sufficiently detailed – they omitted to indicate the dates of absences or, at least, the number of times counsel had been absent – or supported by evidence, such as excerpts from the trial record. The Court considers therefore that their allegation that the delays were mainly attributable to the applicant's own conduct has not been made out. 216. On the other hand, the Court finds that the main cause of the delays was the conduct of the domestic authorities: on three occasions the trial court had to return the case to the pre-trial stage to enable the investigators to remedy the breaches of the defendants' rights, such as the absence of translation, which made consideration of the merits impossible. In this context the Court refers to its finding under Article 5 § 3 of the Convention that the domestic authorities failed to act with the necessary diligence in conducting the applicant's proceedings (see paragraph 188 above).", "That finding is likewise valid in respect of the length of the criminal proceedings as such. 217. Having regard to the foregoing, the Court considers that the length of the proceedings did not satisfy the “reasonable-time” requirement. Accordingly, there has been a breach of Article 6 § 1 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 218.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 219. The applicant claimed 14,700,000 US dollars (USD) representing capital losses during the period he was detained. He submitted that, as a result of the unlawful seizure of his company's documents and seal by the Russian law-enforcement authorities, he had lost control of his business and had been exposed to substantial financial liabilities as his company had defaulted on a bank loan. The applicant also claimed USD 6,938.10 for loss of earnings during five years of detention. 220.", "The Government contested the existence of a causal link between the alleged violations and the loss of capital, as the decision to prefer criminal charges against the applicant was not the subject of the Court's review in the present case. They also exposed calculation errors in the applicant's claims. 221. The Court shares the Government's view that there has been no causal link between the violations found and the claimed pecuniary damage (see Stašaitis, cited above, § 96; Ječius, cited above, § 106). Consequently, it finds no reason to award the applicant any sum under this head.", "B. Non-pecuniary damage 222. The applicant sought compensation in the sum of 50,000 euros (EUR) or such other sum as the Court considered just. 223. The Government considered that a finding of a violation would constitute sufficient just satisfaction. They also submitted that, owing to his acquittal, the applicant was entitled to redress at the domestic level.", "224. The Court notes that it has found a combination of particularly grievous violations in the present case. The applicant, who was never convicted of any criminal offence, spent more than five years in custody, in inhuman and degrading conditions and was frequently transported to and from the courthouse in the conditions which were likewise inhuman and degrading. His detention was unlawful for more than a year and, when “lawful”, was not based on sufficient grounds. Finally, on various occasions he was denied the right to have the lawfulness of his detention examined speedily.", "In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the entire amount claimed by the applicant under this head, plus any tax that may be chargeable on it. C. Costs and expenses 225. The applicant claimed EUR 2,000 for his representation by Mr Bagryanskiy, EUR 2,000 for his representation by Ms Gulakova and a further 1,000 British pounds (GBP) for the preparation of just-satisfaction claims by Mr Bowring. 226.", "The Government submitted that the applicant had been represented in the proceedings before the Court by Mr Bagryanskiy, Mr Ovchinnikov and Ms Moskalenko. The case file does not contain any documents signed by either Ms Gulakova or Mr Bowring. In any event, they considered the amounts claimed by the applicant excessive. 227. The Court notes, firstly, that the applicant was granted EUR 701 in legal aid for his representation by Mr Bagryanskiy.", "As the applicant did not justify having incurred any expenses exceeding that amount, the Court makes no award under this head. As regards the preparation of the claim for just satisfaction, the Court notes that on 2 June 2005 the President refused Ms Gulakova's request for leave to act on behalf of the applicant. It is true that Mr Bowring's name was printed at the bottom of the claims, however, he did not sign the claims and there is no indication that the applicant has paid any sums to Mr Bowring. Accordingly, the Court makes no award in respect of legal costs and expenses. D. Default interest 228.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in facility no. OD‑1/T-2 (“Vladimirskiy Tsentral”); 2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's transport from the remand facility to the courthouse and back; 3.", "Holds that there has been no violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 4 May to 8 August 2001 and from 9 January to 13 March 2002; 4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention on remand from 8 August 2001 to 9 January 2002 and from 13 March 2002 to 4 December 2002; 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 on account of the length of proceedings on the applicant's appeal against the decision of 28 April 2001, on his application for release of 4 September 2001, and on his appeal against the decision of 13 March 2002; 7. Holds that there has been a violation of Article 5 § 4 of the Convention as regards the failure to examine the merits of the applicant's appeals against the extension order of 9 January 2002 and against the decisions of 18 November and 4 December 2002; 8.", "Holds that there has been a violation of the “reasonable-time” requirement of Article 6 § 1 of the Convention; 9. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 50,000 (fifty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 8 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident [1].", "The applicant was taken into custody on 22 January 1999 and by 4 April 2001 had already spent 2 years, 2 months and 13 days in detention. However, the detention “pending the investigation” did not include the period from 21 June 2000 to 28 February 2001 when the case was technically “before the [trial] court”." ]

[ "FIRST SECTION CASE OF ZAFIROV v. GREECE (Application no. 25221/09) JUDGMENT STRASBOURG 6 March 2012 This judgment is final but it may be subject to editorial revision. In the case of Zafirov v. Greece, The European Court of Human Rights (First Section), sitting as a Committee composed of: Anatoly Kovler, President,Linos-Alexandre Sicilianos,Erik Møse, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 14 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25221/09) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Stefan Georgiev Zafirov (“the applicant”), on 4 March 2009.", "2. The applicant was represented by Mr E. Bitsaxis, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms K. Paraskevopoulou, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State Legal Council. 3. On 11 January 2011 the President of the First Section decided to give notice of the application to the Government.", "In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1977 and lives in Patras. 5.", "On 20 October 2006 the applicant was arrested and criminal proceedings were brought against him for drug related offences. 6. After four adjournments - three on the court’s initiative and one on the request of the applicant - on 14 March 2008 the Athens First Instance Criminal Court convicted the applicant and sentenced him to life imprisonment and a fine of 55,000 euros (judgment no. 1579/08). 7.", "On the same date the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the court’s findings and its evaluation of the evidence, which was scheduled for hearing on 1st October 2010. 8. After several adjournments the hearing of the appeal took place on 3 June 2011 and the applicant’s sentence was reduced to fourteen years of imprisonment. 9. There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10. The applicant complained that the length of the proceedings, in so far as the proceedings before the first instance and the appellate court are concerned, 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...” 11. The Government contested that argument. 12.", "The period to be taken into consideration began on 20 October 2006, when the applicant was arrested and criminal complaints were brought against him and ended on 3 June 2011, when the decision of the appellate court was delivered. It thus lasted more than four years and seven 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 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 14. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II) 15.", "The Court observes that the overall length of the proceedings in the present case was approximately four years and seven months for two levels of jurisdiction and that, in particular, the proceedings before the Criminal Court of Appeal lasted more than three years and two months. The Court is of the opinion that mainly the period of two years and six months that lapsed from the date the applicant lodged his appeal and the date the case was initially set for hearing was excessive and was completely attributable to the national authorities. Thus, the Court observes that the national courts’ handling of the case did not facilitate and unjustifiably prolonged its timely completion. In the Court’s opinion, the length of the proceedings can be explained by the failure of the domestic courts to deal with the case diligently (see Gümüÿten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).", "16. In view of the above, having regard to its case-law on the subject, the overall duration of the proceedings and the delays attributable to the authorities, in particular with regard to the appellate court, the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 17.", "The applicant further complained of the fact that in Greece there was no court to which application could be made to complain of the excessive length of proceedings. 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.” 18. The Government contested that argument. 19. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "20. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003 and Tsoukalas v. Greece, no.", "12286/08, §§ 37-43, 22 July 2010) and sees no reason to reach a different conclusion in the present case. 21. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage. 24. The Government considered the amount claimed exorbitant and submitted that the finding of a violation would constitute sufficient just satisfaction.", "They submitted, however, that if the Court considers that an award should be made, an amount of EUR 1,000 would be adequate and reasonable. 25. The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,500 under that head, plus any tax that may be chargeable on this amount. B.", "Costs and expenses 26. The applicant did not submit a claim for the costs and expenses incurred before the domestic courts or for those incurred before the Court. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 27. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there 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, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachAnatoly KovlerDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF SCHOLZ AG v. ARMENIA (Application no. 16528/10) JUDGMENT STRASBOURG 24 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Scholz AG v. Armenia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Ksenija Turković, President,Armen Harutyunyan,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 18 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16528/10) 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 a German corporation, Scholz AG (“the applicant company”), on 19 March 2010.", "2. The applicant company was represented by Mr T. Atanesyan and Mr D. Abgaryan, lawyers 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 10 March 2016 the complaint concerning access to a court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant company has its registered office in Essingen, Germany. 5. From the 1990s onwards the applicant company regularly purchased scrap metal from A. Safaryan and Associates LLC, a limited liability company registered in Armenia (“the LLC”).", "6. On 8 February 1999, 10 April 2000 and 2 April 2003 the applicant company and KBKS (another German company owned by the applicant company) concluded three contracts with the LLC, under which KBKS and the applicant company were to make advance payments to the LLC in return for scrap metal. The contract of 2 April 2003 contained the following dispute resolution clause: “... 7. Arbitration 7.1 The parties agree that any disputes and differences arising out of the performance of this contract shall be resolved through negotiations in order to reach a mutually beneficial resolution. 7.2 If it is not possible to settle such disputes amicably, these matters shall, with the exception of those falling within the jurisdiction of the ordinary courts, be referred to the Arbitration Tribunal of the Chamber of Commerce of the country of the respondent.", "...” 7. It appears that the contracts of 8 February 1999 and 10 April 2000 contained a similar clause. 8. On 8 April 2002 KBKS and the applicant company concluded an assignment agreement whereby KBKS transferred all its contractual rights, including those towards the LLC, to the applicant company. 9.", "On 8 November 2002 the applicant company provided the LLC with a loan in the amount of 100,000 euros (EUR), which was due to be repaid by 31 January 2003. The purpose of the loan was to assist the LLC in paying off a bank loan. It appears that it was not paid back to the applicant company. 10. It further appears that the LLC failed to meet its contractual obligations vis-à-vis the applicant company, in that it supplied less scrap metal than the advance payments that it had already received.", "11. On 28 October 2005 representatives of the applicant company and the LLC made a calculation of their liabilities as at that date and it was revealed that the LLC owed 1,213,824 US dollars (USD) to the applicant company. As a result of negotiations, the applicant company agreed to provide debt relief in the amount of USD 613,824 on the condition that the LLC paid off the rest of the debt, namely USD 600,000, in accordance with a debt repayment schedule which was set up in a separate agreement signed on the same day by the directors of both companies. According to this agreement, the LLC undertook to repay the debt in five instalments, with the first payment due by 15 December 2005. If the LLC failed to meet its obligations as set out in the repayment schedule, it would be immediately liable to repay the entire debt, and any disputes with regard to repayment would be resolved through litigation.", "12. On the same day the parties concluded another agreement, setting out a repayment schedule in respect of the loan of EUR 100,000 and arrears in the amount of EUR 10,000. It also stated that an additional 6% would be payable in the event of failure to respect the repayment schedule. 13. It appears that the LLC missed the required payments.", "In subsequent correspondence, the director of the LLC acknowledged the debt but deferred its repayment, each time providing different reasons. 14. On 15 January 2007 the applicant company lodged a claim with the Commercial Court against the LLC, seeking to recover USD 10,000 from the initial debt of USD 1,213,824. 15. On 2 October 2007 the applicant company amended its initial claim, seeking to recover a total of USD 1,516,442 and EUR 116,600 from the LLC, including the principal debt, the loan and interest on both.", "It also requested a waiver of the court fees. 16. On 4 October 2007 the LLC filed a counterclaim, contesting the applicant company’s claims. The director of the LLC requested the annulment of the two documents dated 28 October 2005, arguing that, having no command of German, he had been unaware of their content and had signed them as a result of fraud. 17.", "On 15 October 2007 the applicant filed a response to the counterclaim, arguing, inter alia, that the director of the LLC had been personally present during the negotiations in Germany when a recalculation of liabilities between the companies had been carried out. Since the director of the LLC was fluent in Russian, the negotiations had been conducted in Russian and there had also been a copy in Russian of the documents signed. Moreover, the fact that the director of the LLC had been fully aware of the content of the documents he had signed of his own free will was confirmed by his numerous letters, where he had provided justification for having failed to transfer the amounts due in a timely manner. 18. On 7 November 2007 the LLC requested the Commercial Court to leave the applicant company’s claim unexamined on the grounds that the contracts of 8 February 1999, 10 April 2000 and 2 April 2003 contained a dispute resolution clause whereby disputes concerning their performance would be resolved by the Arbitration Tribunal of the Chamber of Commerce of the country of the respondent.", "The LLC therefore claimed that, it being the respondent, resolution of the dispute was within the jurisdiction of the Arbitration Tribunal of the Chamber of Commerce and Industry of Armenia (“the Arbitration Tribunal”). 19. On 16 November 2007 the Commercial Court granted the request and decided to leave the applicant company’s claim and the counterclaim lodged by the LLC unexamined. In doing so, it referred to Article 103 § 3 of the Code of Civil Procedure and found that the resolution of the dispute fell within the jurisdiction of the Arbitration Tribunal. It found that, as the contract of 2 April 2003 contained an arbitration clause, the agreement of 28 October 2005 was also subject to arbitration.", "The decision was amenable to appeal before a three-judge bench of the Commercial Court within three days of receipt by the party. 20. On 23 November 2007 the applicant company lodged a complaint concerning the decision to leave the claim and counterclaim unexamined. It argued, inter alia, that the agreements signed on 28 October 2005, which had succeeded the contracts of 8 February 1999, 10 April 2000 and 2 April 2003, provided that disputes concerning the failure of the LLC to respect the repayment schedules set out in them would be determined by the courts. It further argued that, subsequent to the agreements of 28 October 2005, no other arrangements concerning dispute resolution had been concluded between the parties.", "Relying on section 8(1) of the Commercial Arbitration Act, the applicant company also argued that, contrary to its requirements, the court had decided to leave the claim unexamined, even though the LLC had submitted the relevant request several months after the litigation had started and had already made its submissions on the merits of the claim. Lastly, the applicant company argued that its claim in the part relating to the recovery of the amount of the loan of EUR 100,000 was not connected in any way to the contracts of 8 February 1999, 10 April 2000 and 2 April 2003. However, the court had decided that the entirety of its claims were to be determined through arbitration. 21. On 10 December 2007 a three-judge bench of the Commercial Court rejected the complaint submitted by the applicant company.", "The decision stated that, inter alia, the claims concerning the debt and the loan were interconnected and stemmed from the commercial relationships between the parties based on the contract for the supply of scrap metal. 22. On 23 July 2008 the applicant company’s representative sent a request for information to the President of the Arbitration Tribunal, asking whether the arbitration clause contained in the contracts concluded between the parties was sufficient for the tribunal to accept the claim for examination, and whether the decisions of the Commercial Court to leave the claim unexamined on the grounds that the determination of the dispute fell within the jurisdiction of a commercial arbitration court provided sufficient grounds for accepting the claim. Translations into Armenian of extracts of the contracts containing the arbitration clause and copies of the two decisions of the Commercial Court were enclosed with the letter. 23.", "On 1 August 2008 the President of the Arbitration Tribunal replied that the question of whether the arbitration clause stipulated in the contracts concluded between the parties was sufficient for it to accept the claim for examination could only be determined once the claim had been lodged. 24. At the same time, the registrar of the Arbitration Tribunal submitted to the representative of the applicant company a draft arbitration agreement to be concluded with the LLC. According to the applicant company, its representative told the registrar that the conclusion with the LLC of this type of new agreement was at that point impossible and unreasonable, since the Commercial Court had already found that the arbitration clause contained in the contracts was sufficient to start arbitration proceedings. 25.", "On 17 September 2008 the applicant company lodged a claim with the Arbitration Tribunal, seeking to recover EUR 116,600, the amount of the loan and interest. A copy of the promissory note signed on 8 November 2002 on providing a loan to the LLC in the amount of EUR 100,000, together with other documents, was attached to the claim. In addition, it was stated in the claim that the decisions of the Commercial Court and extracts of the contracts containing the arbitration clause had already been submitted to the President of the Arbitration Tribunal with the letter of 23 July 2008. 26. On 7 October 2008 the President of the Arbitration Tribunal informed the applicant company that its request to start arbitration proceedings would not be granted.", "The relevant parts of the letter read as follows: “... The promissory note of 8 November 2002 and the agreement of 28 October 2005, on which your claim was based, do not contain an arbitration clause and, moreover, the parties have not concluded any agreement to submit the disputes arising out of the performance of the above-mentioned promissory note and the agreement to the permanent arbitration institution of the Chamber of Commerce and Industry of Armenia for determination. Consequently, in the absence of an arbitration agreement between the parties, the [Arbitration Tribunal] cannot start arbitration proceedings.” 27. In view of the fact that the Commercial Court had been abolished by that time, on 17 October 2008 the applicant company lodged a claim with the Yerevan Civil Court, seeking to recover EUR 116,600 from the LLC, representing the amount of the loan and interest. It submitted that the Arbitration Tribunal had refused to accept the claim for examination even though the Commercial Court had already found that the determination of the dispute fell within the tribunal’s jurisdiction.", "In such circumstances, the applicant company’s right of access to a court had been violated. The applicant company also applied for a freezing injunction in respect of the respondent’s assets in the amount of the claim. 28. On 12 November 2008 the Yerevan Civil Court accepted the applicant company’s claim for examination and scheduled a preparatory hearing. On the same day it allowed the applicant company’s interlocutory application for a freezing injunction in respect of the property of the LLC in the amount of the claim.", "29. On 27 February 2009 the Yerevan Civil Court transferred the case to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”) based on territorial jurisdiction, in view of the fact that on 1 March 2009 the Yerevan Civil Court would be abolished. 30. On 13 March 2009 the District Court accepted the case for examination. 31.", "On 12 June 2009 the LLC, relying on the decision of the Commercial Court of 16 November 2007, requested the District Court to leave the applicant company’s claim unexamined. It submitted, in particular, that the applicant company had failed to substantiate that the grounds for leaving its claim unexamined no longer existed. 32. The applicant company contested the arguments put forward by the LLC, arguing that the possibility of applying to the Arbitration Tribunal no longer existed since, by a letter of 7 October 2008, examination of the claim had been refused. 33.", "On 16 June 2009 the District Court decided to leave the claim lodged by the applicant company unexamined, finding that the refusal to start arbitration proceedings stated in the letter of 7 October 2008 did not substantiate the fact that there was no possibility of applying to the Arbitration Tribunal. The District Court further referred to the previous findings of the Commercial Court to conclude that the claim should be left unexamined. 34. On 25 June 2009 the applicant company lodged an appeal. It argued, in particular, that the Arbitration Tribunal had been provided with the decisions of the Commercial Court and the contracts concluded between the parties.", "Having examined them, it had concluded that it had no jurisdiction to determine the dispute. In such circumstances, the rationale for considering that the dispute should be determined by the tribunal was incomprehensible. 35. In its reply to the applicant company’s appeal, the LLC submitted, inter alia, that the applicant company had failed to provide the Arbitration Tribunal with copies of the relevant extracts of the contracts that contained the arbitration clause and the relevant decisions of the Commercial Court. Therefore, the tribunal had refused to accept the claim.", "36. On 21 July 2009 the Civil Court of Appeal upheld the decision of 16 June 2009. In doing so, it stated, in particular, that the applicant company had failed to submit to the Arbitration Tribunal extracts of the contracts containing the arbitration clause, as a result of which its claim had not been accepted. 37. On 4 August 2009 the applicant company lodged an appeal on points of law.", "It argued, in particular, that the Civil Court of Appeal had upheld the lower court’s decision, despite the fact that there was no possibility of applying to the Arbitration Tribunal. The applicant company further pointed out that the argument that it had failed to submit the relevant extracts of the contracts to the tribunal was groundless since, in its claim lodged with that institution, it had expressly mentioned that copies of the decisions of the Commercial Court and extracts of the contracts in question had already been submitted with the letter of 23 July 2008. 38. On 23 September 2009 the Court of Cassation declared the applicant company’s appeal on points of law inadmissible. In doing so, it stated the following: “... As for the letter of the President of the Arbitration Tribunal of the Chamber of Commerce of 7 October 2008 concerning non-acceptance of the claim lodged by [the applicant company], it was based on the grounds that [the applicant company] had not submitted the original arbitration agreement or a certified copy, as required by the Commercial Arbitration Act and [the provisions contained therein], in the absence of which arbitration proceedings could not be started.", "The Court of Cassation finds that, taking into account the failure to submit to the Arbitration Tribunal of the Chamber of Commerce and Industry the original arbitration agreement or a certified copy ... and non-examination of [the applicant company’s] claim, [the applicant company] is not deprived of judicial protection in accordance with the general provisions of the Code of Civil Procedure ...” II. RELEVANT DOMESTIC LAW A. Code of Civil Procedure (as in force at the material time) 39. Article 14 provided that a final judicial decision was binding on all State agencies, local self-government bodies, their officials, legal entities and citizens and was enforceable throughout the entire territory of the Republic of Armenia. 40.", "Article 103 § 3 provided that a court could leave a claim or request unexamined if there was an agreement between the parties to the proceedings to submit the dispute for determination by an arbitration tribunal, and the possibility of applying to an arbitration tribunal had not been eliminated. 41. Article 104 § 4 provided that the claimant or the respondent had the right to reapply to the court once the circumstances based on which the claim or complaint had been left unexamined no longer existed. B. Law on Commercial Arbitration (adopted on 25 December 2006 and in force from 10 February 2007 – “the Commercial Arbitration Act”) 42.", "Section 8(1) provides that a court to which a claim has been lodged with regard to a dispute concerning which there is an arbitration agreement, has an obligation to leave the claim unexamined based on the request of one of the parties lodged no later than the submission by that party of its first statement on the merits of the dispute, except when it finds that the agreement is void, no longer valid or cannot be performed. 43. Section 8(2) provides that, in the event of a claim under section 8(1), arbitration proceedings may be started or continued and a judgment reached while the claim is still before the court. C. Rules of the Permanent Arbitration Tribunal of the Chamber of Commerce and Industry of the Republic of Armenia (adopted on 3 April 2007) 44. Article 10 sets out the requirements regarding the content of a claim to the Arbitration Tribunal and the documents to be attached to it.", "Article 10 § 1 (b) provides that a claim lodged with the Arbitration Tribunal should contain a reference to the arbitration agreement, of which the original or a certified copy should be attached to the claim. 45. Article 12 § 1 provides that, if it is established that the claim lodged with the Arbitration Tribunal does not comply with the requirements of Article 10, the registrar of the Arbitration Tribunal must propose that the claimant rectify the errors in the claim within a reasonable time-limit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 46.", "The applicant company complained under Article 6 § 1 of the Convention that it had been denied access to a court as a result of the refusal of the ordinary courts and the Arbitration Tribunal to examine its claims. 47. Article 6 § 1 of the Convention reads in relevant parts as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 48. The Government contested that argument. A. Admissibility 49.", "The Government argued that the applicant company had failed to exhaust the effective domestic remedies. They noted that the three contracts concluded on 8 February 1999, 10 April 2000 and 2 April 2003 contained an arbitration clause. The applicant company had failed to attach the originals or a certified copy of these contracts to its application to the Arbitration Tribunal, which had then consequently declined to start arbitration proceedings. The Arbitration Tribunal had not refused to examine the case because of a lack of competence to examine the case, but because the application lodged with it had not been supported by the necessary documents. The applicant company had been solely responsible for not lodging an appropriate and complete claim with the Arbitration Tribunal, which had had the jurisdiction to examine it.", "The Government therefore claimed that the applicant company had failed to exhaust the effective domestic remedies and that, consequently, the application should be declared inadmissible. 50. The applicant company contested the Government’s allegation. It argued that it clearly appeared from the domestic courts’ judgments that the contracts in question had been presented to the Arbitration Tribunal. The applicant company had thus exhausted the effective domestic remedies.", "51. The Court notes that on 17 September 2008 the applicant company lodged a claim with the Arbitration Tribunal in the amount of EUR 116,600, seeking to recover the loan. A copy of the promissory note signed on 8 November 2002 on providing a loan to the LLC in the amount of EUR 100,000, the agreement of 28 October 2005 and other documents were attached to the claim. Also, it was stated in the claim that the decisions of the Commercial Court and extracts of the contracts containing the arbitration clause had already been submitted to the President of the Arbitration Tribunal (see paragraph 25 above). 52.", "On the basis of this information, it is clear for the Court that the applicant company submitted to the Arbitration Tribunal both the documents on which its claim for EUR 116,600 was based as well as the three contracts containing the arbitration clause. It cannot therefore be said that the applicant company failed to exhaust the effective domestic remedies by not submitting the documents in question. The applicant company’s application is thus not inadmissible on this ground and, consequently, the Government’s preliminary objection must be dismissed. 53. The Court finds 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 54.", "The applicant company noted that the fact that the Government had not presented any arguments other than the preliminary objection in the case showed that they had implicitly accepted the applicant company’s submissions. 55. The Government considered that there had been no violation of Article 6 § 1 as the applicant company had not been deprived of effective access to a court. 2. The Court’s assessment (a) General principles 56.", "The Court reiterates 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 courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This right to a court extends only to “disputes” (contestations in the French text) over “civil rights and obligations” 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 (see Athanassoglou and Others v. Switzerland [GC], no.", "27644/95, § 43, ECHR 2000‑IV). 57. The Court reiterates that 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. 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). 58.", "It is not the Court’s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic legislation (see Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 33, ECHR 2000‑I, and Domazyan v. Armenia, no. 22558/07, § 37, 25 February 2016). The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention.", "This applies in particular to interpretation by courts of rules of a procedural nature (see, among many other authorities, Nowiński v. Poland, no. 25924/06, § 32, 20 October 2009). (b) Application of these principles to the present case 59. The Court notes firstly that the applicant company’s claim clearly concerned a civil matter, namely a civil claim in order to recover the principal debt and interest or the loan and interest from the LLC. It is equally clear that the case concerned a “dispute” over “civil rights and obligations” which was, at least on arguable grounds, to be recognised under domestic law.", "The “dispute” was genuine and serious, and the outcome of the proceedings was directly decisive for the right in question. 60. The Court observes that the applicant company tried to lodge its claim with three different courts or tribunals and that none of them accepted the case for examination. The applicant company was thus completely denied access to any court or tribunal in respect of its civil claim against the LLC (see Saghatelyan v. Armenia, no. 7984/06, § 48, 20 October 2015).", "61. The applicant company first lodged a claim with the Commercial Court, in order to recover a total of USD 1,516,442 and EUR 116,600 from the LLC, including the principal debt, the loan and interest on both. On 16 November 2007 that court decided to leave the applicant company’s claim unexamined and found that the resolution of the dispute fell within the jurisdiction of the Arbitration Tribunal. Even though the debt repayment agreement of 28 October 2005 did not contain an arbitration clause, the Commercial Court decided that the entirety of the applicant company’s claims were to be determined through arbitration (see paragraph 20 above). 62.", "Subsequently, the applicant company lodged a claim with the Arbitration Tribunal in the amount of EUR 116,600. On 7 October 2008 its President informed the applicant company that, in the absence of any arbitration agreement between the parties, the Arbitration Tribunal could not start any arbitration proceedings. 63. Lastly, the applicant company lodged a claim with the Civil Court, seeking to recover EUR 116,600 from the LLC, that is, the amount of the loan and interest. On 16 June 2009 the District Court, to which the case had meanwhile been transferred from the Civil Court, decided to leave the applicant company’s claim unexamined, finding that the refusal to start arbitration proceedings did not substantiate the fact that there was no possibility of applying to the Arbitration Tribunal.", "The District Court further referred to the previous findings of the Commercial Court to conclude that the claim should be left unexamined (see paragraph 33 above). On appeal, the Civil Court of Appeal and the Court of Cassation found that the applicant company had failed to submit to the Arbitration Tribunal extracts of the contracts containing an arbitration clause, as a result of which its claim had not been accepted (see paragraphs 37 and 39 above). 64. The Court reiterates that it is primarily for the national authorities to resolve any problems of jurisdiction. In the present case, the applicant company’s access to a court was denied by all of the domestic courts and tribunals with which the applicant company lodged its claim.", "Although the Commercial Court’s initial decision that the Arbitration Tribunal was competent may very well have been justified, the following decisions by the Arbitration Tribunal and the District Court refusing the applicant company access to a court were clearly disproportionate. There was no reasonable relationship of proportionality between the means employed and the aim sought to be achieved, when examining the case as a whole. 65. The Court finds it particularly difficult to accept the District Court’s reasoning. Firstly, the applicant company’s claim before the District Court only concerned the loan and interest which were based on the promissory note of 8 November 2002 and the agreement of 28 October 2005, neither of which contained an arbitration clause.", "If the Arbitration Tribunal was not competent to examine the very same claim because of the lack of an arbitration clause, then the District Court would have had competence. Moreover, as the applicant company’s claim no longer related to the entirety of its claims, as before the Commercial Court, but only to those related to the loan arrangements, the District Court could hardly rely on the same reasoning as the Commercial Court when leaving the applicant company’s claim unexamined. It is difficult to see how the applicant company’s claim concerning only the loan could be regarded as forming a part of a whole together with the contracts of 8 February 1999, 10 April 2000 and 2 April 2003, when the latter contracts were in no manner even invoked before the District Court. Moreover, it is noteworthy that the District Court left the applicant company’s claim unexamined after having already accepted the case for examination (see paragraph 31 above). The Court also finds it difficult to accept that the Civil Court of Appeal and the Court of Cassation went on, in their decisions, to interpret why the Arbitration Tribunal, which is a completely independent body, rejected the applicant company’s claim.", "66. The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts’ failure to examine the case constituted for the applicant company a limitation of the right of access to a court which did not pursue a legitimate aim and which was not proportionate. By leaving the applicant company’s claim unexamined, the domestic courts undermined the very essence of the applicant company’s right to a court guaranteed under Article 6 § 1 of the Convention. 67. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69. The applicant claimed USD 1,213,824 and EUR 116,000 plus interest in respect of pecuniary damage, and EUR 100,000 in respect of non‑pecuniary damage.", "70. The Government considered that the claim for pecuniary damage should be rejected, as there was no causal link between the alleged violation and the pecuniary damage claimed by the applicant company. They also submitted that it was not for the Court to speculate about the actual outcome of the domestic proceedings or any pecuniary damage the applicant company might have sustained in that connection. As to the claim for non-pecuniary damage, the Government considered the amount exaggerated in the light of the Court’s case-law and considered that it should be completely rejected. However, if the Court were to award compensation for non‑pecuniary damage, the amount claimed should be reduced.", "71. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant company EUR 3,600 in respect of non-pecuniary damage. B. Costs and expenses 72.", "The applicant company did not claim any costs and expenses. C. Default interest 73. 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 company, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKsenija TurkovićDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MEMISHAJ v. ALBANIA (Application no. 40430/08) JUDGMENT STRASBOURG 25 March 2014 This judgment is final but it may be subject to editorial revision. In the case of Memishaj v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paul Mahoney, President,Ledi Bianku,Krzysztof Wojtyczek, judgesand Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40430/08) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Enver Memishaj (“the applicant”), on 21 July 2008.", "2. The applicant was represented by Ms Entela Memishaj, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms L. Mandia of the State Advocate’s Office. 3. On 11 July 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1944 and lives in Tirana. 5. On 10 December 2001 the applicant, who worked as an accountant for the Tirana City Hall, was dismissed.", "The dismissal took effect on 11 January 2002. 6. On 6 February 2002, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. By final decision of 8 May 2003, the Supreme Court upheld the CSC decision. On 10 March 2006 the applicant was offered employment by the Tirana City Hall (see paragraph 11 below).", "7. On 15 May 2003 the Tirana District Court supplemented the CSC’s decision by ordering the Tirana City Hall to pay the applicant’s salary for the period between 10 December 2001 and the date of reinstatement. The employer’s request for revision was dismissed on 10 October 2003. 8. On 4 June 2003 an enforcement writ was issued in respect of both decisions.", "9. On 31 March 2006 the Constitutional Court, following a constitutional complaint by the applicant, acknowledged that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Supreme Court’s decision. However, it made no award. A. The applicant’s reinstatement 10.", "On 1 March 2006 the applicant took up employment with the Ministry of Tourism, Culture, Youth and Sports (“the Ministry”). 11. On 10 March 2006 the Tirana City Hall appointed the applicant to a position in a maintenance company, which was responsible to the Tirana City Hall. The applicant challenged the appointment. 12.", "On 15 May 2006 the CSC quashed the appointment decision. The CSC decision became final, none of the parties having appealed against it. B. Proceedings concerning payment of accrued interests 13. In 2004 and 2006 the applicant successfully sought the payment of accrued interest arising from the delay in the payment of his salary.", "14. On 9 April 2008, following a third action by the applicant, the Tirana District Court found in the applicant’s favour and ordered the Tirana City Hall to pay the applicant ALL 774,076 in salary arrears and ALL 105,258 in accrued interest. The court reasoned that, since the applicant had taken up employment with the Ministry on 1 March 2006, the Tirana City Hall was obliged to pay him salary arrears for the period from 11 January 2002 (see paragraph 5 above) to 28 February 2006. That obligation had ceased to exist ipso lege as of 1 March 2006. Relying on an expert’s report, the court found that the applicant’s salary arrears for the period from 11 January 2002 to 28 February 2006 amounted to ALL 1,720,261, of which ALL 946,185 had been paid by the Tirana City Hall.", "The accrued interest for the corresponding period amounted to ALL 105,258. 15. On 11 November 2009 an enforcement writ was issued. 16. On 12 February 2010 it would appear that the Tirana District Court’s decision became final, the Supreme Court having dismissed the defendant’s appeal.", "17. On 31 March 2010 the Tirana City Hall paid the salary arrears. There is no information in the case file concerning the payment of accrued interest. 18. On an unspecified date in 2010 the applicant lodged a fourth civil action seeking the payment of accrued interest for the period between 9 April 2008 and 31 March 2010 and the payment of social security contributions by the Tirana City Hall.", "19. On 30 June 2010 the Tirana District Court found in his favour and ordered the Tirana City Hall to pay accrued interest as a result of the delay in payment of the salary arrears from 9 April 2008 to 31 March 2010 and social security contributions on the basis of the applicant’s indexed salary. No quantification of the amount was made. 20. On 8 July and 23 December 2011 the Court of Appeal and the Supreme Court, respectively, upheld the Tirana District Court’s decision.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 21. The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004) and Gjyli v. Albania (no.", "32907/07, §§ 19-28, 29 September 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 22. The applicant complained that the non-enforcement of the final court decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, breached his rights under Articles 6 § 1 and 13 as well as under Article 1 of Protocol No.", "1 to the Convention, which Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 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. A. Admissibility 23. The Government submitted that the Supreme Court’s decision of 8 May 2003 was enforced on 1 March 2006 when the applicant began employment with the Ministry.", "Moreover, on 30 June 2007 the applicant qualified for an old-age pension. Consequently, the applicant could not claim to be a victim. 24. The applicant maintained his complaint that the Supreme Court’s decision of 8 May 2003 had not been enforced. 25.", "The Court considers that the question of whether the applicant could claim to be a victim should be joined to the merits and examined in conjunction with his complaint about the non-enforcement of the Supreme Court’s decision of 8 May 2003. The Court further considers that, even though the domestic courts’ decisions of 9 April 2008 and 30 June 2010 became final after the communication of the case to the respondent Government, they were given in response to the applicant’s actions about the alleged non-enforcement of the Supreme Court’s decision of 8 May 2003. These domestic developments were included in the Statement of Facts communicated to, and not disputed by, the Government and will be taken into account in the examination of the merits of this complaint. 26. The Court further considers that, since this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must therefore be declared admissible.", "B. Merits 27. The Court recalls the general principles under Article 6 § 1 of the Convention concerning the non-enforcement of a final court decision set out, inter alia, in Qufaj Co. Sh.p.k. (cited above, § 38) and in Gjyli (cited above, §§ 43-44). 28.", "The Court notes that, on 8 May 2003, the Supreme Court ordered the applicant’s reinstatement by the Tirana City Hall. On 15 May 2003 the domestic court ordered the payment of salary arrears until the applicant’s reinstatement. The Government did not inform the Court of any measures which the authorities had taken to comply with that decision. The authorities’ failure to enforce that decision was also recognised by the Constitutional Court in its decision of 31 March 2006, although it was not capable of affording any redress for the breach of his right of access to court. 29.", "As a result of the authorities’ non-compliance with the Supreme Court’s decision of 8 May 2003, as supplemented on 15 May 2003, the applicant instituted proceedings seeking the payment of salary arrears and accrued interests. On 9 April 2008 and 30 June 2010 the domestic courts accepted his civil actions and awarded damages (see paragraphs 14 and 19 above). Even though the payment of salary arrears was executed on 31 March 2010, the payment of the accrued interest as well as social contributions remained unenforced. No justification was provided by the Government for the delay in payment and non-compliance with those domestic decisions. This further reinforced the above finding that the Supreme Court’s decision of 8 May 2003, as supplemented on 15 May 2003, remained unenforced.", "30. That the applicant took employment with another State institution on 1 March 2006 was unrelated to and not in furtherance of the enforcement of the Supreme Court’s decision of 8 May 2003. The fact that the applicant qualified for an old-age pension, as alleged by the Government, could not serve as a justification for the authorities’ continuous failure to enforce the Supreme Court’s decision of 8 May 2003. Furthermore, the accrued interest, as a result of the late payment, and the social contributions which have a bearing on the applicant’s pension entitlement, have not yet been paid. 31.", "It follows that the applicant could claim to be a victim of a violation of his rights under Article 6 of the Convention and the Court rejects this objection of the Government (see, amongst others, Burdov v. Russia, no. 59498/00, § 31, ECHR 2002‑III). Furthermore, the Court finds that there has accordingly been a breach of Article 6 § 1 of the Convention. 32. In addition, the Court recalls that there exists no effective domestic remedy as regards the delayed enforcement or the non-enforcement of a final court judgment.", "In its judgments in the cases of Gjyli (cited above, §§ 55-60) and Puto and Others v. Albania (no. 609/07, §§ 33-35, 20 July 2010) the Court held that the Constitutional Court’s declaratory findings about a breach of an appellant’s right of access to court on account of the non-enforcement of a final court judgment did not offer any adequate redress. In particular, the Constitutional Court was not in a position to make any awards of pecuniary and/or non-pecuniary damage, nor could it offer a clear perspective to prevent the alleged violation or its continuation (see also paragraphs 9 and 28 above). Consequently, there has been a breach of Article 13 in conjunction with Article 6 § 1 of the Convention. 33.", "Finally, by virtue of the Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, the applicant’s right to the payment of accrued interest and social contributions was recognised. The impossibility for him to obtain the execution of those decisions constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Burdov, cited above, § 40). Having regard to the fact that the Government submitted no objective justification for the authorities’ failure to comply with those decisions, the Court finds that there has also been a breach of Article 1 of Protocol No. 1 to the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicant complained under Article 14 of the Convention that he was discriminated against on the ground of his political affiliation in respect of the non-enforcement of final court decisions in his favour. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 35. Even assuming that the applicant had exhausted all effective domestic remedies, in the light of all the material in its possession, and in so far as the matter complained of were within its competence, the Court finds that they did not disclose any appearance of a breach of Article 14 of the Convention in conjunction with Article 6 § 1.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. 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 2,000 euros (“EUR”) in respect of pecuniary damage: EUR 1,214 as regards the non-payment of accrued interest and EUR 786 as regards the non-payment of his old-age pension arising from the failure of Tirana City Hall to pay social contributions. The applicant further claimed EUR 26,428 in respect of non-pecuniary damage, namely: EUR 10,714 as regards compensation for his unfair dismissal from work on the grounds of political motives; EUR 3,571 as regards attacks to his honour and reputation which adversely affected his career; EUR 5,000 as regards damage to his quality of life; and EUR 7,143 as regards damage to his health. 38. The Government submitted that the applicant had been paid all outstanding amounts. Since he started receiving an old-age pension as of 10 January 2011, his claim for pecuniary damage should be rejected as ill-founded.", "As regards non-pecuniary damage, the Government argued that it was never alleged before the domestic courts that the applicant was dismissed on political grounds. Moreover, the applicant found alternative employment with other State and non-State institutions as a result of which he could not claim any damage to his honour and reputation. His claim for damage to his quality of life should be dismissed as unsubstantiated, as should his claim for damage to his health. 39. As to pecuniary damage, the Court has set out above the extent to which the applicant has and should be compensated.", "The Court considers that the applicant is entitled under domestic law to the judgment debt as regards the payment of accrued interest and social contributions. He is still in possession of such claim and thus no specific award in pecuniary damage should be made. In these circumstances and having regard to the aforesaid, the Court considers that the respondent Government should ensure the payment of accrued interest and social contributions as ordered by the domestic decisions of 9 April 2008 and 30 June 2010, in the applicant’s favour, within three months from the date of notification of the present judgment by the Court (see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07, 1240/07 and others, § 20, 10 November 2009; Solomatin v. Ukraine, no. 8191/04, § 30, 15 October 2009).", "40. In respect of non-pecuniary damage, the Court considers that the applicant must have been caused frustration as a result of the non-enforcement of the final Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010 in his favour. It awards the applicant EUR 4,700 in respect of non-pecuniary damage. B. Costs and expenses 41.", "The applicant also claimed EUR 5,150 in costs and expenses: EUR 2,464 for the costs and expenses incurred before the domestic courts, EUR 2,400 for those incurred before this Court; and EUR 286 for sundry expenses (telecommunications and correspondence with his lawyers and the Court, photocopying and notary fees). 42. The Government argued that the applicant never raised before the domestic courts any claims for legal costs and expenses. His claims should be declared ill-founded or inadmissible as an abuse of the right of individual petition. 43.", "Regard being had to the number of successful domestic proceedings instituted by the applicant, the detailed supporting documents in its possession and to the issues raised in the present application, the Court considers it reasonable to award the sum of EUR 3,000 covering costs and expenses under all heads. C. Default interest 44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits of the complaint under Article 6 § 1 of the Convention the Government’s objection concerning the applicant’s “victim” status; 2.", "Declares the complaints under Articles 6 § 1 and 13 as well as under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-enforcement of the Supreme Court’s decision of 8 May 2003, as supplemented by the decisions of 15 May 2003, 9 April 2008 and 30 June 2010, and, consequently, dismisses the Government’s objection as regards the applicant’s “victim” status; 4. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention; 5. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 6. Holds (a) that within three months the respondent State is to secure the enforcement of the domestic decisions of 9 April 2008 and 30 June 2010 as regards the payment of the accrued interest and social contributions; (b) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,700 (four thousand seven 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, in respect of costs and expenses; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPaul MahoneyDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF ILIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 35164/03) JUDGMENT STRASBOURG 22 April 2010 FINAL 22/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ilievski v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35164/03) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Mirko Ilievski (“the applicant”), on 29 October 2003. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. 3. On 28 June 2007 the President of the Fifth Section decided to communicate the complaint concerning the length of the proceedings.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS A. Proceedings concerning the applicant's dismissal 4. On 10 May 1995 the applicant was dismissed by his employer for work-related irregularities. 5.", "On 16 June 1995 the applicant claimed annulment of his dismissal and his reinstatement. 6. On 15 February 1996 the Delčevo Municipal Court (“the first-instance court”) annulled the dismissal decision and ordered the employer to reinstate the applicant to a post commensurate to his qualifications. On 19 September 1996 the Štip Court of Appeal quashed this decision and remitted the case for a fresh consideration. 7.", "On 11 November 1996 the first-instance court terminated the proceedings because insolvency proceedings had been launched against the employer on 24 April 1996. 8. On 19 November 1996 the applicant requested the court to resume the proceedings for a number of reasons, including the fact that the employer's receiver (стечаен управник) appointed in the insolvency proceedings had not requested termination of his proceedings. 9. On 13 January 1997 the first-instance court declared itself incompetent to decide the applicant's case and transferred it to the Kočani Court of First Instance.", "10. On 7 November 1997 the Kočani Court of First Instance dismissed the applicant's claim relying on the latter's criminal conviction of 19 July 1995 for work-related offences. On 10 February 1998 the Štip Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. 11. On 29 December 1998 the Kočani Court of First Instance stayed the insolvency proceedings in respect of the employer and noted that they had no bearing on dismissal decisions.", "12. On 2 December 1999 the Supreme Court upheld the applicant's appeal on points of law (ревизија) and quashed the lower courts' decisions of 7 November 1997 and 10 February 1998. 13. On 22 March 2000 the Kočani Court of First Instance declared itself incompetent ratione loci to decide the applicant's case. 14.", "On 22 December 2000 the Supreme Court dismissed the employer's request that the first-instance court be declared incompetent to deal with the applicant's case. 15. On 17 April 2001 the first-instance court annulled the dismissal decision and dismissed the applicant's claim for his reinstatement finding that the employer's insolvency had entailed ipso jure termination of all employment agreements, including the applicant's. This decision was upheld by the Štip Court of Appeal's and the Supreme Court's decisions of 27 December 2001 and 7 May 2003, respectively. This latter decision was served on the applicant on 9 July 2003.", "B. Proceedings concerning the applicant's compensation claim for unpaid salary and other work-related allowances 16. On 28 July 2003 the applicant brought a civil action against the employer claiming employment emoluments (надомест на штета од работен однос). His claim referred to compensation for unpaid salary and an allowance for provisional unemployment that he should have received from the State Employment Bureau (Биро за вработување) pending the employer's insolvency proceedings. 17.", "On 1 March 2004 the first-instance court ruled partly in favour of the applicant. This decision became final on 5 April 2004. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant complained that the length of the dismissal 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 19.", "The Government did not raise any objection as to the admissibility of this complaint. 20. The Court notes 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 21. The Government submitted that the period which elapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration. They further stated that that there had been complex circumstances related to the case, including that other related proceedings had been pending simultaneously (see paragraphs 7 and 10).", "22. The Government confirmed that the applicant did not contribute to the length of the proceedings. 23. As to the conduct of the national courts, they submitted that no delays were attributable to them, except in the proceedings before the Supreme Court, which had not added much to their length. 24.", "The applicant did not comment. 2. The Court's assessment 25. The Court notes that the proceedings started on 16 June 1995 when the applicant brought his claim before the first-instance court. However, as noted by the Government, the period which falls within the Court's jurisdiction began on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Lickov v. the former Yugoslav Republic of Macedonia, no.", "38202/02, § 21, 28 September 2006). 26. In assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings on 10 April 1997 (see Ziberi v. the former Yugoslav Republic of Macedonia, no. 27866/02, § 41, 5 July 2007). In this connection, the Court notes that at that point the proceedings had lasted almost one year and ten months at two levels of jurisdiction.", "27. The proceedings ended on 9 July 2003 when the Supreme Court's decision was served on the applicant. They therefore lasted over eight years, of which six years, two months and thirty days fall within the Court's temporal jurisdiction at three court levels. 28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Markoski v. the former Yugoslav Republic of Macedonia, no.", "22928/03, § 32, 2 November 2006). 29. The Court considers that the case was not of a particularly complex nature. In this latter context, the Court notes that it cannot be conclusively determined that the impugned proceedings had been affected by the other proceedings pending parallel. 30.", "It further finds that no periods of delay are imputable to the applicant. 31. As to the conduct of the national courts, the Court observes that the applicant's case was unnecessarily transferred to be decided by the Kočani Court of First Instance, which affected the length of the proceedings. 32. Furthermore, the Court is of the view that what was at stake for the applicant, who lost his means of subsistence after being dismissed from work, called for special expediency (see Dumanovski v. the former Yugoslav Republic of Macedonia, no.", "13898/02, § 48, 8 December 2005). 33. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument showing that the applicant's claim was decided with due expediency. Having regard to the circumstances of the instant case and to what was at stake for the applicant, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 34.", "There has accordingly been a breach of that provision. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. Referring to the outcome of both sets of proceedings, the applicant complained that the domestic courts had wrongly dismissed his claim for reinstatement and that they had taken conflicting decisions during the proceedings. He also complained that he had not been compensated for unpaid salaries and work-related allowances.", "36. The Court has examined the remainder of the applicant's complaints and finds that, in the light of all the materials 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. 37. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant claimed 52,695 euros (EUR) in respect of pecuniary damage related to allegedly unpaid salaries and other work-related allowances. He also claimed EUR 11,920 in respect of non-pecuniary damage due to lack of subsistence funds.", "40. The Government contested these claims. 41. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. Furthermore, the applicant was partly awarded the claims under this head: (see paragraph 17 above), it therefore rejects this claim.", "On the other hand, ruling on an equitable basis, it awards him EUR 800 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 42. The applicant also claimed a global sum of EUR 813,59 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. The latter figure included, inter alia, court and legal fees, as well as the costs for mailing and translation of documents.", "43. The Government contested these claims. 44. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation found, and reasonable as to quantum, are recoverable under Article 41 (see Kyrtatos v. Greece, no. 41666/98, § 62, ECHR 2003‑VI (extracts)).", "Concerning the applicant's request for reimbursement of the costs incurred in the proceedings before the domestic courts, the Court notes that such costs had not been incurred in order to seek through the domestic legal order prevention and redress of the alleged violation complained of before the Court. Accordingly, it does not award any sum under this head (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34, 20 April 2006). In respect of the costs and expenses incurred before it, regard being had to the supporting documents submitted by the applicant and the above criteria, the Court awards the sum of EUR 60, plus any tax that may be chargeable to the applicant. C. Default interest 45.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the 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 in respect of the length 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 following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 800 (eight hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii) EUR 60 (sixty 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 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 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF ALDOSHKINA v. RUSSIA (Application no. 66041/01) JUDGMENT STRASBOURG 12 October 2006 FINAL 12/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aldoshkina v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 21 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 66041/01) 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, Ms Irina Igorevna Aldoshkina, on 27 November 2000. 2. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, a violation of her right to defend herself before the supervisory-review instance. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By a decision of 16 June 2005, the Court declared the application partly admissible. 6. The Government but not the applicant filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1968 and lives in Samara. She is a former chief tax inspector. 8. On 27 August 1998 the applicant was committed to stand trial on charges of abuse of position and concerted extortion of a bribe.", "9. On 28 October 1998 the Samara Regional Court delivered its judgment. It found the applicant guilty of fraud committed in concert with another person through use of her official position, an offence under Article 159 § 2 (a) and (v) of the Criminal Code. She was sentenced to a fine of 1,000 minimum wages (approximately EUR 5,000) and prohibited from holding any positions in tax authorities for three years. 10.", "On 17 March 1999 the Supreme Court of the Russian Federation upheld the conviction on appeal. Counsel for the applicant was present at the hearing. 11. As no ordinary appeal lay against the appeal judgment, counsel for the applicant introduced an application for supervisory review with the Presidium of the Supreme Court of the Russian Federation. He sought a reversal of the judgments passed in the applicant's case in order to redress the violations of the rights of the defence.", "12. On 24 February 2000 a deputy president of the Supreme Court of the Russian Federation lodged an application for supervisory-review with the Presidium of that court. Although the text of the application has not been made available to the Court, it appears from the Government's submissions that he asked for a recharacterisation of the applicant's offence which, in his opinion, should be qualified as an attempt to commit fraud. 13. On 24 May 2000 the Presidium of the Supreme Court of the Russian Federation examined the application for supervisory review.", "The applicant and her counsel were not summoned to the hearing and did not attend it. The Presidium heard a report by the judge rapporteur and statements by a deputy Prosecutor General who spoke in support of the recharacterisation. The Presidium found that the offence imputed to the applicant had not been brought to completion. On that ground the Presidium recharacterised the applicant's offence as an attempt to commit fraud (Article 159 § 2 (a) and (v) of the Criminal Code in conjunction with Article 30 § 3). The applicant's sentence remained unaffected.", "14. On 29 May 2000 a copy of the Presidium's decision was mailed to the applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The RSFSR Code of Criminal Procedure (in force at the material time) 15.", "Article 254 required that the court examine the case within the scope of the charges brought against the defendant. The charge could be amended by the court, provided that such an amendment did not aggravate the situation of the defendant or violate his right to defend himself. 16. Chapter 30 described the power of certain State officials to contest criminal judgments by way of supervisory-review proceedings in which the case could be reviewed on points of law and procedure. The supervisory-review proceedings were distinct from review of a case on account of newly discovered facts.", "The power to lodge an application for supervisory review could be exercised by the Prosecutor General, the presidents of the Supreme Court of the Russian Federation and of the regional courts and their deputies. A party to the proceedings could petition these officials for institution of supervisory-review proceedings (Article 371). 17. The supervisory-review instance was not bound by the scope of the application for supervisory review and had to review the criminal case in its entirety. It could uphold, amend or quash any of the earlier judgments, vary the sentence, discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court.", "It could not, however, increase the sentence or recharacterise the defendant's actions as a more serious offence (Article 380). 18. Article 377 established that a prosecutor had to be present at the supervisory-review hearing. If necessary, the convicted person and counsel could be summoned to the hearing in order to make submissions. If summoned to the hearing, the defendant and counsel should be able to study the application for supervisory review.", "B. Case-law of the Constitutional Court 19. In Ruling no. 2-P of 14 February 2000, the Constitutional Court declared Article 377 incompatible with the Russian Constitution to the extent that it permitted the supervisory-review instance to decide on an application for supervisory review which was to the detriment of the convicted or acquitted person. The Court held that such person and his or her counsel should be able to study the application, they should be notified about the date and place of the hearing and given an opportunity to present their position on the arguments in the application. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 20. The applicant complained about procedural irregularities in the criminal proceedings against her. The Court will examine the complaints under Article 6 of the Convention which reads, in the relevant parts, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: (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...” 21.", "The applicant submitted that she had applied to the supervisory-review instance with a view to having the conviction reversed and the proceedings discontinued because the guilty verdict had contradicted the established facts. However, the deputy president had preferred a completely different ground for supervisory-review, namely a recharacterisation of her actions as an attempt to commit fraud. Neither she nor her counsel had been informed about the date of the hearing before the supervisory-review instance. Nor had they been aware of the contents of the application for supervisory review. For that reason they had been prevented from making any submissions or comments, written or oral, and from pleading her innocence.", "22. The Government conceded that the applicant and her counsel had not been summoned for the supervisory-review hearing on 24 May 2000. However, their presence had not been required because the application for supervisory review had not been liable to aggravate her situation, and their summoning had been a discretionary power of the supervisory-review instance. In any event, neither the applicant nor her counsel had sought leave to appear at the hearing. 23.", "The Court has already found a violation of the fairness requirement of Article 6 § 1 of the Convention in the case where the supervisory-review court adopted a different legal characterisation of the applicant's offence without summoning him to the hearing and affording him an opportunity to comment on the application for supervisory review (see Vanyan v. Russia, no. 53203/99, §§ 63-68, 15 December 2005). 24. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Presidium of the Supreme Court amended the conviction and adopted a different legal characterisation of the applicant's actions, thereby determining a criminal charge against her.", "The prosecution was present before the Presidium and made oral submissions in support of the recharacterisation. The Presidium had to exercise a full review of the case and could dismiss the application for supervisory review, quash the conviction and/or the appeal judgment, discontinue the criminal proceedings, or amend any of the earlier decisions. In these circumstances, the Court considers that the Presidium court could not, if the trial were to be fair, determine the applicant's case in her absence. Had she or her counsel been present, she would have had an opportunity to plead the case and comment on the application by the deputy President of the Supreme Court and on the oral submissions by the prosecutor (see Vanyan, loc. cit.).", "25. In view of the above considerations the Court finds that the proceedings before the Presidium of the Supreme Court of the Russian Federation did not comply with the requirements of fairness. There has therefore been a breach of Article 6 § 1 of the Convention. In the light of this finding it is not necessary to examine separately whether the provisions of Article 6 § 3 have been complied with. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27. The applicant claimed 481,140 euros (EUR) in respect of compensation for the pecuniary damage, representing her actual and future loss of salary and other emoluments resulting from her conviction. She further claimed EUR 500,000 in respect of compensation for non-pecuniary damage.", "28. The Government considered these amounts to be excessive and unreasonable. 29. The Court reiterates that the complaints concerning the applicant's conviction were declared inadmissible in the decision of 16 June 2005. It rejects therefore her claim for the pecuniary damage.", "The Court considers that the applicant must have suffered frustration and a feeling of injustice as a consequence of the domestic authorities' failure to ensure her presence at the supervisory-review hearing. The Court finds that the applicant suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation. Accordingly, making its assessment on an equitable basis, it awards the applicant EUR 1,000, plus any tax that may be chargeable on that amount. B. Costs and expenses 30.", "The applicant claimed 18,000 Russian roubles (RUR) in respect of the legal expenses in the trial and appeal proceedings and RUR 2,000,000 in respect of the costs of the supervisory-review and Strasbourg proceedings. 31. The Government pointed out that the applicant did not submit evidence showing that these expenses had been actually made. 32. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "The Court reiterates that the complaints concerning the applicant's trial and conviction were declared inadmissible. As to the supervisory-review and Strasbourg proceedings, the applicant did not submit any documents showing that the expenses had been actually incurred. Accordingly, the Court does not make an award under this head. C. Default interest 33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 12 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF SHUST AND SIDORENKO v. UKRAINE (Applications nos. 41385/06 and 56391/11) JUDGMENT This version was rectified on 30 March 2017 under Rule 81 of the Rules of Court. STRASBOURG 23 March 2017 This judgment is final but it may be subject to editorial revision. In the case of Shust and Sidorenko v. Ukraine, 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 Karen Reid, Section Registrar, Having deliberated in private on 2 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table.", "4. The applicants complained of the excessive length of their pre-trial detention. They also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: 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 observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8.", "In the leading case of Kharchenko v. Ukraine, no. 40107/02, 10 February 2011, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.", "10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. The applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table).", "These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in the leading cases of Merit v. Ukraine, no. 66561/01, 30 March 2004; and Kharchenko v. Ukraine, cited above. IV.", "REMAINING COMPLAINTS 12. In application no. 41385/06 the applicant also raised other complaints under various Articles of the Convention. 13. 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 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 application 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, the Court considers it reasonable to award the sum indicated in the appended table to the second applicant, Mr Sidorenko. It makes no award in respect of the first applicant, Mr Shust, who failed to respond to the Court’s invitation to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court.", "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 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 application no.", "41385/06 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 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 second applicant, Mr Sidorenko, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 6.", "Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 23 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidVincent A. De GaetanoRegistrarPresident 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] 41385/06 05/10/2006 Andrey Nikolayevich Shust 17/10/1973 15/01/2004 to 28/04/2005 29/11/2005 to 13/12/2006 04/12/2007 to 09/07/2008 1 year, 3 months and 14 days 1 year and 15 days 7 months and 6 days Art.", "6 (1) - excessive length of criminal proceedings between 24/09/2003 and 16/12/2008: 5 years and 3 months, 2 levels of jurisdiction. 0 56391/11 30/08/2011 Vladislav Viktorovich Sidorenko 15/02/1985 Nataliya Gennadyevna Okhotnikova Kharkiv Vladymyr Borysovych Glushchenko Kharkiv[2] 19/12/2005 to 28/04/2007 11/12/2007 to 17/02/2011 11/05/2011 to 05/03/2013 1 year, 4 months and 10 days 3 years, 2 months and 7 days 1 year, 9 months and 23 days Art. 5 (4) - excessive length of judicial review of detention; Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention; Art. 6 (1) - excessive length of criminal proceedings between 19/12/2005 and 05/03/2013: 7 years and 3 months, 2 levels of jurisdiction 5,100 [1] Plus any tax that may be chargeable to the applicant.", "[2] Rectified on 30 March 2017: the name of the second representative and location was added." ]

[ "SECOND SECTION CASE OF TAMBOVTSEV v. UKRAINE (Application no. 20625/02) JUDGMENT STRASBOURG 8 November 2005 FINAL 08/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tambovtsev v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrV.", "Butkevych,MrsA. Mularoni,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judgesand Mrs S. Dollé, Section Registrar, Having deliberated in private on 11 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 20625/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vasiliy Mikhaylovich Tambovtsev (“the applicant”), on 18 May 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Zoryana Bortnovska and Mrs Valeria Lutkovska. 3.", "On 28 August 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1939 and lives in the town of Novogrodovka, the Donetsk Region.", "5. On 15 March 2001 the Novogrodovka City Court (hereafter “the City Court”) awarded the applicant UAH 4,791.40[1] against the “Novogrodovskaya” coal mine (a State-owned enterprise, hereafter “the Coal Mine”) in salary arrears. The judgment became final and was sent to the Novogrodovka City Bailiffs’ Service (hereafter “the Bailiffs’ Service”) for compulsory enforcement. 6. In June 2001 the applicant instituted proceedings in the City Court against the Bailiffs’ Service in respect of its alleged inactivity.", "On 23 August 2001 the City Court rejected this complaint, stating, inter alia, that no fault was attributable to the bailiffs, who had undertaken all necessary measures to secure the execution of the judgment of 15 March 2001 and that the non-enforcement of this judgment was caused by the Coal Mine’s lack of funds. The City Court also indicated that the enforcement proceedings were further impeded by a bankruptcy case pending against the Coal Mine before the Donetsk Regional Court of Arbitration, which on 14 May 2001 prohibited the Bailiffs’ Service from performing any activity that involved the forced sale of the Coal Mine’s assets. On 5 November 2001 the Donetsk Regional Court of Appeal upheld the judgment of the City Court. On 18 February 2002 the Supreme Court rejected the applicant’s cassation appeal. 7.", "On 25 February 2003 the Ministry of Fuel and Energy ordered the merger of the Coal Mine with several others into the Selydivvugilia State Company. 8. In a letter of 21 July 2003, the Bailiffs’ Service informed the applicant about the following impediments to the execution of the judgment given in his favour: - the ruling of the Donetsk Regional Court of Arbitration of 14 May 2001, prohibiting the Bailiffs’ Service from performing any activity that involved the forced sale of the Coal Mine’s assets; - the ruling of the Donetsk Regional Commercial Court of 23 February 2002, barring any attachment or sale of the Coal Mine’s property (both bans above were lifted on 2 April 2003, when the Donetsk Regional Commercial Court terminated the bankruptcy proceedings against the Coal Mine); - the moratorium on the forced sale of the property of State-owned enterprises introduced by the 2001 Law. 9. On 1 September 2003, following the transfer of the Coal Mine’s funds to the Selydivvugilia State Company, the Bailiffs’ Service suspended the enforcement proceedings pending the replacement of the debtor in the applicant’s case.", "On 24 October 2003 the Bailiffs’ Service applied to the City Court for a direction to that effect. On 31 October 2003 the City Court ordered that the debtor in the case be replaced by the Selydivvugilia State Company. On 19 November 2003 the enforcement case was transmitted to the Selidvivske City Bailiffs’ Service. 10. The sum awarded to the applicant by the judgment of 15 March 2001 was paid to him in two instalments in February and May 2004.", "II. RELEVANT DOMESTIC LAW 11. Some of the relevant domestic law is set out in the judgments of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19), of 30 November 2004 in the case of Dubenko v. Ukraine (74221/01 §§ 22‑29), and of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 18 and 22).", "THE LAW I. ADMISSIBILITY OF THE COMPLAINTS 1. Alleged violation of Articles 2 and 4 § 1 of the Convention 12. The applicant complained that the existing situation infringed his right to life under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland, no. 32734/96, 20.4.1999).", "Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 13. The applicant next complained about a violation of Article 4 § 1 of the Convention, referring to the fact that he was forced to work without receiving remuneration.", "The Court notes that the applicant performed his work voluntarily and his entitlement to payment has never been denied. The dispute thus involves civil rights and obligations, but does not disclose any element of slavery or forced or compulsory labour within the meaning of this provision (see Sokur v. Ukraine (dec.), cited above). In these circumstances, the Court considers that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. 2. Alleged violation of Article 6 § 1 of the Convention 14.", "The applicant complained about the State authorities’ failure to execute the judgment of the City Court awarding him salary arrears against his employer. 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.” 15. The Government maintained that the applicant had failed to exhaust domestic remedies, in that he had not lodged a claim with the domestic courts challenging the inactivity of the Bailiffs’ Service and claiming compensation for the irregular enforcement proceedings or for the devaluation of the amounts awarded. 16. The applicant contested that argument, recalling that the main reason for the continued non-enforcement of the judgments given in his favour was the debtor company’s difficult economic situation.", "17. The Court recalls its case-law on this issue to the effect that an applicant is absolved from lodging complaints against Bailiffs where the non-enforcement of judgments was due to reasons which the Bailiffs could not influence (see, among many others, Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003, and Mykhaylenky and Others v. Ukraine, nos. 35091/02, and the following, §§ 38-39, 30 November 2004). It finds no reason to distinguish the present application from the previous cases.", "18. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II.", "MERITS 19. The Government submitted that the Bailiffs’ Service 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 long period of non-enforcement of the judgment did not violate the applicant’s rights under Article 6 § 1 of the Convention as the delay in enforcement was caused by the difficult financial situation of the enterprise. 20. The applicant reiterated that the State was responsible for the delay in the enforcement of the court judgment in his favour.", "21. The Court observes that the judgment in the applicant’s favour remained without enforcement for three years and two months. 22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues to the ones in the present case (Romashov v. Ukraine, cited above, § 46, and Sokur v. Ukraine, cited above, § 37). 23.", "Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 24. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26. The applicant claimed UAH 25,403[2] in respect of pecuniary and non-pecuniary damage. 27. The Government contested the applicant’s claims as being unsubstantiated.", "28. The Court considers that the applicant’s claims are excessive. Making its assessment on equitable basis, as required by Article 41 of the Convention, the Court awards the applicant 1,520 euros (EUR) in respect of pecuniary and non-pecuniary damage. B. Costs and expenses 29.", "The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect. C. Default interest 30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention concerning the non-enforcement of a court judgment given in the applicant’s favour admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,520 (one thousand five hundred and twenty euros) in respect of pecuniary and 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 8 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident [1] approximately EUR 800 [2] approximately EUR 4,221" ]

[ "SECOND SECTION CASE OF ENHORN v. SWEDEN (Application no. 56529/00) JUDGMENT STRASBOURG 25 January 2005 In the case of Enhorn v. Sweden, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrI. Cabral Barreto,MrR. Türmen,MrM.", "Ugrekhelidze,MrsE. Fura-Sandström,MrsD. Jočienė, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 10 December 2002 and 4 January 2005, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 56529/00) 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, Mr Eie Enhorn (“the applicant”), on 3 April 2000.", "2. The applicant, who had been granted legal aid, was represented by Mrs E. Hagstrom, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mrs E. Jagander, of the Ministry of Foreign Affairs. 3. The applicant alleged that he had been deprived of his liberty in breach of Article 5 of the Convention.", "4. The application was initially allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). 5. By a decision of 10 December 2002, the Chamber declared the application admissible. 6.", "The Government, but not the applicant, filed observations on the merits (Rule 59 § 1). 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1947 and is homosexual. In 1994 it was discovered that he was infected with the HIV virus and that he had transmitted the virus to a 19-year-old man with whom he had first had sexual contact in 1990. 9.", "In this context, on 1 September 1994 a county medical officer (smittskyddsläkaren) issued the following instructions to the applicant pursuant to the 1988 Infectious Diseases Act (smittskyddslagen – “the 1988 Act”). “[The applicant] is not allowed to have sexual intercourse without first informing his partner about his HIV infection. He is required to use a condom. He is to abstain from consuming such an amount of alcohol that his judgment would thereby be impaired and others put at risk of being infected with HIV. If the applicant is to have a physical examination, an operation, a vaccination or a blood test or is bleeding for any reason, he must tell the relevant medical staff about his infection.", "He must also tell his dentist [about it]. Moreover, the applicant is prohibited from giving blood and donating organs or sperm. Finally, he is to visit his consulting physician again and to keep appointments fixed by the county medical officer.” It appears to be in dispute whether the instructions were included in the applicant's medical record as prescribed by section 16 of the 1988 Act. It is not in dispute, however, that the applicant was informed of the instructions, which were issued to him on 1 September 1994, both orally and in writing. 10.", "The applicant kept three appointments with the county medical officer in September 1994 and one in November 1994. He also received two home visits by the county medical officer. He failed to appear as summoned five times during October and November 1994. 11. On 2 February 1995 the county medical officer petitioned the County Administrative Court (länsrätten) for a court order that the applicant be kept in compulsory isolation in a hospital for up to three months pursuant to section 38 of the 1988 Act.", "The court's record of the applicant's statement reads, inter alia, as follows: “After learning about his HIV infection he had hardly had any sexual relationships. Henceforward he would only have sexual relations with other HIV infected persons. The applicant did not wish to visit the county medical officer or a psychiatrist, but finding his communication with his consulting physician satisfactory he intended to pay the latter monthly visits.” The county medical officer stated, among other things: “[The applicant] may not be sexually active at present, but experience has shown that when the opportunity arises he is likely to have sexual relations, preferably with younger men and without thinking of the consequences. [The applicant] refuses to face his situation, does not want to change his conduct and distorts reality in such a way that he is never to blame for anything. In order for [the applicant's] behaviour to change it is necessary for him to consult a psychiatrist.", "Having regard to his [resistance thereto], the risk of him spreading the disease is obvious.” 12. A statement of 16 February 1995 was submitted to the County Administrative Court by a deputy chief physician and specialist in psychiatry, S.A., who had met the applicant twice in a psychiatric ward at an infection clinic. He found, inter alia: “Having learnt that he was HIV-positive, the applicant reacted with a high level of anxiety, which he attempted to alleviate with alcohol. He has maintained that he drinks three strong beers at night in order to be able to sleep. He has had periods of extensive [alcohol] abuse as a consequence of learning that he was infected with HIV but also when he lost his job.", "[The applicant's] lack of social contact and his feeling of being an outsider, in combination with possible alcohol abuse, could increase the risk of destructive sexual relations.” 13. In a judgment of 16 February 1995, finding that the applicant had failed to comply with the measures prescribed by the county medical officer, aimed at preventing him from spreading the HIV infection, the County Administrative Court ordered that the applicant should be kept in compulsory isolation for up to three months pursuant to section 38 of the 1988 Act. The order took effect immediately, but the applicant failed to report to the hospital; the police accordingly took him there on 16 March 1995. 14. It appears that the order and others subsequently issued by the County Administrative Court were upheld on appeal by the Administrative Court of Appeal (kammarrätten), so that the applicant's compulsory confinement was repeatedly prolonged by periods of six months at a time.", "15. While being isolated the applicant had the opportunity to go outdoors every day together with members of the hospital staff, but not on his own. Also, he was able to accompany staff members on different activities outside the hospital grounds. The applicant absconded from the hospital several times, first on 25 April 1995. The police, whom he had contacted voluntarily, returned him to the hospital on 11 June 1995.", "On 27 September 1995 he ran away again and was at large until the police found him on 28 May 1996. The applicant absconded for a third time on 6 November 1996 but returned of his own accord on 16 November 1996. He ran away for the fourth time on 26 February 1997 and was not returned until 26 February 1999. During the period from 26 February until 2 March 1999 the applicant was detained in his room. 16.", "On 14 April 1999 the county medical officer petitioned the County Administrative Court anew for an extension of the applicant's compulsory isolation. According to the record of a hearing held in camera on 20 April 1999, the applicant explained, among other things, the following: “... before 1994 he had had ten to twelve sexual relations per year. His partners were partly old acquaintances, partly new ones, whom he met in parks and so on. The boy, who was 15 years old when they met, took the initiative both emotionally and sexually. Today [the applicant] realises that he infected the boy, which he finds very regrettable.", "A relative with psychiatric problems, with whom [the applicant] had had a longer sexual relationship, was likewise the initiator. While he was on the run from [26 February] 1997 until [26 February] 1999, he had had no sexual relations. He had taken precautions against spreading the disease and, having had to visit physicians twice during his period at large, on both occasions he had informed them about his HIV infection. Mostly he had kept to himself. From October 1997 until June 1998 and from August 1998 until February 1999, he had lived at a farm hostel and, during the periods in between, when the hostel was full, he had camped.", "He had spent his time shopping, cooking, watching TV, spending money on lottery games and drinking beer. He had drunk approximately six strong beers a week and never got drunk. He dreamt of living on his own in a flat, supporting himself on sickness benefit. He had lost all sexual desire and would in future have to decline all sexual relations. If he were to be exempted from compulsory isolation he would follow the instructions issued by the county medical officer.” 17.", "The owner of the farm hostel gave evidence on the applicant's behalf. The record of his statement reads, inter alia, as follows: “[The applicant], under a pseudonym, had stayed at his farm hostel from October 1997 until June 1998 and from August 1998 until January 1999. [The owner] had talked briefly with him almost every day during those periods. [The applicant] had not bothered anybody and had not formed any personal relationships. He used to go shopping once a day, usually for beer, and [the witness] would estimate that he had drunk between four and six cans of beer every day ... [The applicant] had gone to Stockholm or Norrköping on a few occasions in order to deal with money matters ...", "However, in Norrköping he had primarily gone to the liquor store ... [The witness] could hardly imagine that [the applicant] had had any sexual relations while living at the hostel ...” 18. Also on the applicant's behalf, an opinion was submitted by a chief physician, P.H., on 16 April 1999 regarding the applicant's alcohol consumption. Having examined various laboratory tests performed since 31 July 1995 in order to check the applicant's liver, he found no divergent results. The most recent laboratory test, carried out on 18 March 1999, indicated that the applicant had a healthy liver. It was noted that subsequent to his return the applicant had been in contact with a chief physician and specialist in psychiatry, C.G., who was not connected to the hospital.", "19. A statement was submitted to the court by a consulting psychiatric chief physician, P.N., connected to the special care facility at the hospital to which the applicant had been admitted. After the applicant's involuntary return, P.N. had attempted to establish contact with him three times, but in vain. He claimed that on the latest occasion, in March 1999, the applicant had made a lunge at him.", "In P.N. 's view, the applicant had not made any positive progress since 10 October 1996, the date of P.N. 's most recent official opinion regarding the applicant's condition, in which he had, inter alia, made the following assessment: “The applicant suffers from a paranoid personality disorder and from alcohol abuse. He is considered to be completely devoid of any sense of being ill and also lacks awareness. The combination of a sexual leaning towards younger men and a possible alcohol-related neuro-psychological functional impairment with, from time to time, a probably paranoid personality disorder, close to psychosis, and previous dangerous behaviour from the infection-spreading viewpoint, is deemed unfavourable.", "The chances of eliminating or limiting the continuous risk of the infection being spread by means of a prolonged placement in isolation in accordance with the Act are deemed – all facts considered – to have not yet completely vanished.” 20. Also submitted was a statement of 8 April 1999 by B.S., a psychologist at the special care facility at the hospital who had met the applicant once. B.S. found that the applicant was intellectually above average and that he appeared immature and fragile and showed signs of being suspicious and distrustful. 21.", "The statement of the county medical officer, who gave evidence before the court, is recorded, inter alia, as follows: “During the last two years when he was on the run, [the applicant] sought medical treatment twice and it has been established that both times he said that he had the HIV virus [as opposed to the period when he absconded between September 1995 and May 1996, during which he failed three times to inform medical staff about his condition]. Moreover, [the applicant] has [finally] accepted that he infected the young man with whom he had a long-lasting relationship from the beginning of the 1990s, thus admitting that it was not the other way around. Also, he has agreed to sign a treatment plan and to consult two physicians of his own choice ... These circumstances suggest the beginning of an improvement in [the applicant's] attitude towards treatment. Nevertheless, it has not been established that [the applicant] has materially changed his attitude regarding the risk that he may spread the disease.", "He continues to show himself unable to accept the aid and support measures he is entitled to receive; he has refused to consult the psychiatrist P.N. and the psychologist B.S. Moreover, having been in touch with the physicians whom [the applicant] has [recently] contacted voluntarily [P.H. and C.G. ], the county medical officer considers that these consultations were partly economically motivated [on account of the fact that the applicant needed medical certificates in order to continue to receive sickness benefit], partly motivated by his wish to be declared mentally healthy, but [not motivated] by any willingness to commence treatment.", "During [the applicant's] contact with the doctors in question, they did not discuss the risk of spreading the disease at all. A treatment plan was not formally signed [by the applicant]. In conclusion, in the county medical officer's opinion, [if released the applicant] will not voluntarily comply with the instructions given or limit the spreading of the disease.” As regards the laboratory tests concerning the applicant's liver, the county medical officer found these to be of doubtful value, since they had been performed in connection with the compulsory isolation of the applicant at the hospital, but never in connection with a period of intoxication. 22. On 23 April 1999 the County Administrative Court delivered its judgment, finding against the applicant for the following reasons: “[The applicant] is HIV-positive and thus carries the HIV infection.", "He has been subjected to compulsory isolation since February 1995 and has during this period absconded from the hospital on several occasions – on the latest occasion for more than two years. During these two years he did not have any contact with the county medical officer or the consulting physician. Periodically he has used a false name and has been living a very secluded life, obviously owing to the risk of being discovered. A life at liberty makes great demands upon the person carrying the infection. During the time preceding his compulsory isolation, [the applicant] was not able to follow the practical instructions issued.", "Subsequently, he has consistently declined the help offered by the consulting physician and the psychiatrist at the special care facility at the hospital and has instead responded with aversion and mistrust – and by escaping. [The Court] finds that it has been difficult for [the applicant] to accept the information regarding the HIV infection and that he needs help in dealing with this critical situation. It appears from the evidence that [the applicant] still shows aversion to the treatment offered and that he is considered likely to abscond. [The Court] has not been convinced that [the applicant] is not misusing alcohol and finds that, especially in connection with alcohol consumption, [the applicant] is likely to be unable to control his sexual behaviour. Against this background, [the Court] finds that there is good reason to suppose that, if he remains free, [the applicant] will not comply with the practical instructions issued and that this entails a risk of the infection spreading.” 23.", "On 12 June 1999 the applicant again absconded, leaving his whereabouts unknown. In the meantime, he had appealed against the above judgment to the Administrative Court of Appeal, before which he relied on an opinion of 14 May 1999 by the aforementioned chief physician and specialist in psychiatry, C.G., which stated, inter alia, the following: “The opinions [by other psychiatrists and one psychologist] resulting from previous examinations were fairly unanimous in their conclusion that [the applicant] was a man with a paranoid personality disorder, who misused alcohol. 'Misuse' in psychiatric terms is defined as a maladaptive use of substances ... This diagnosis is to be distinguished from alcohol dependency, which means a compulsive use of alcohol with abstinence and social complications, and is more difficult to master. The diagnosis 'paranoid personality disorder' is defined as a pervading suspiciousness and lack of trust in other people, whose motives are consistently perceived as malicious.", "It follows from the definition of 'paranoid personality disorder' itself that this is manifest in the patient's personality from the time he or she becomes an adult. Owing to the fact that the person in question perceives the disorder as part of his or her own self, the motivation for change is usually insufficient. It is not correct to talk in terms of lack of awareness of a disease, since it is not considered that a disease is involved but rather a variation in personality, although the latter may well cause complications in relations with other individuals and society. When such complications occur, an individual with a personality disorder may display different symptoms such as depression, anxiety, etc. In [my] interview with [the applicant], the latter was fairly open and talkative.", "When he talked about experiences from his time at school, he displayed different emotions. He also showed empathy as far as other people from those years were concerned. He was also partly able to shoulder responsibility for his own mistakes, without blaming others. However, he was very rigid in his interpretation of what had occurred in his adult life and particularly the events of recent years after he had been informed that he had the HIV virus in September 1994. His attitude towards the county medical officer and the staff at the infection ward, whom he believed had kept harassing him unjustly, was almost hateful.", "[The applicant] felt that he had been subjected to persecution between 1994 and 1995. This could possibly be interpreted as a symptom of delusion. From 1996, he had not experienced feelings of persecution, inter alia since he had secured his own liberty. With regard to sexual relations, [the applicant] has stated that he preferred sexual contact with boys around the age of 17. He was not interested in pre-pubescent boys.", "He had been celibate since 1996 and had no longer any particular sexual desires or fantasies. He was fully aware that he was carrying the HIV virus and was careful to stress that he was not afraid to die. His attitude towards medication against the HIV infection was negative. The reasons for this were that such medication could have side effects and perhaps, above all, because it would entail limitations on his freedom since he would be subjected to various check-ups. [The applicant] spontaneously expressed a wish to have further talks on a voluntary basis.", "When asked whether such talks could be part of a treatment plan in cooperation with the county medical officer and the staff at the infection ward, he answered 'no', the reason being that he would feel ashamed of himself if he were to give up this fight.” In conclusion, C.G., found that the applicant fulfilled the criteria for a paranoid personality disorder, and that, judging from previous information, the applicant suffered from misuse of alcohol but not from alcohol dependency. According to C.G. the applicant could be described in everyday terms as an odd person, but not as mentally ill. With regard to the risk that the applicant might pass on the HIV infection to other persons, C.G. believed that neither he nor anyone else could do anything but guess. The weightiest indications in this regard, however, ought to be deduced from the applicant's behaviour during the years he had spent at large.", "24. In a judgment of 18 June 1999, the Administrative Court of Appeal found against the applicant. Leave to appeal against the judgment was refused by the Supreme Administrative Court (Regeringsrätten) on 5 October 1999. 25. Several applications for an extension of the applicant's compulsory isolation were submitted by the county medical officer after June 1999 and granted, until on 12 December 2001 an application was turned down by the County Administrative Court, which referred to the fact that the applicant's whereabouts were unknown and that therefore no information was available regarding his behaviour, state of health and so on.", "26. It appears that since 2002 the applicant's whereabouts have been known, but that the competent county medical officer has made the assessment that there are no grounds for the applicant's further involuntary placement in isolation. II. RELEVANT DOMESTIC LAW AND PRACTICE 27. The 1988 Infectious Diseases Act (“the 1988 Act”) divides infectious diseases into diseases dangerous to society and other infectious diseases.", "One of the diseases described as dangerous to society is the infection by the human immunodeficiency virus (HIV). The relevant provisions of the 1988 Act read as follows: Section 5 “Each county council [landsting] shall be responsible for ensuring that the necessary measures for the prevention of infectious diseases are taken within its area ...” Section 6 “Every county council shall have a county medical officer ...” Section 13 “It shall be the duty of any person having reason to suspect that he has been infected with a disease dangerous to society to consult a physician without delay and to allow the physician to carry out examinations and to take any specimens needed in order to establish whether he has been infected with such a disease. It shall also be his duty to comply with the practical instructions issued to him by the physician. The same shall apply when a person, having been infected with a disease dangerous to society, states that he has been in contact with some other person in such a way that the infection may have been transmitted.” Section 14 “Any person infected with a disease dangerous to society must supply the consulting physician with information concerning the person or persons from whom the infection may have come or to whom it may have been passed on, and must supply general particulars concerning the possible source of the infection and where it may have been spread further.” Section 16 “The consulting physician shall issue to a person being examined for a disease dangerous to society any practical instructions needed to prevent the spread of the infection. These instructions may refer to that person's contact with the physician, hygiene, isolation in the home, employment and attendance at educational establishments, as well as his general way of life.", "The instructions shall be included in the infected person's medical record. The physician must as far as possible see to it that the instructions are complied with.” Section 17 “At the request of the individual concerned or of his own motion, the county medical officer may alter the instructions in the manner he finds most appropriate.” Section 25 “A consulting physician having reason to believe that a patient infected or suspected of being infected with a disease dangerous to society will not comply, or is not complying with the practical instructions issued, must promptly notify the county medical officer. This shall also apply when such a patient discontinues his current treatment without the consent of the consulting physician.” Section 28 “... Before resorting to any coercive measure, the county medical officer must try to obtain voluntary compliance if this can be done without the risk of the infection being spread.” Section 30 “A county medical officer who has been informed by a consulting physician that a patient carrying the HIV infection has not complied, or is suspected of not complying, with the practical instructions issued shall notify the social welfare committee, the police authority and the principal probation officer. In doing so he shall supply particulars concerning the identity of the person to whom the practical instructions apply and the implications of those instructions. No information shall be supplied if the county medical officer believes this unnecessary in order to secure compliance with the practical instructions or otherwise finds it immaterial with regard to the prevention of communicable disease.” Section 38 “The County Administrative Court, on being petitioned by the county medical officer, shall make an order for the compulsory isolation of a person infected with a disease dangerous to society if that person does not voluntarily comply with the measures needed in order to prevent the infection from spreading.", "An order of this kind shall also be made if there is reasonable cause to suppose that the infected person is not complying with the practical instructions issued and this omission entails a manifest risk of the infection being spread. Compulsory isolation shall take place in a hospital run by a county council.” Section 39 “If a compulsory isolation order by the County Administrative Court cannot be awaited without danger, the county medical officer shall issue an order of the kind referred to in section 38. The order issued shall thus be submitted immediately to the County Administrative Court for approval.” Section 40 “Compulsory isolation may continue for up to three months from the day on which the infected person was admitted to hospital under the isolation order.” Section 41 “Following a petition from the county medical officer, the County Administrative Court may order the continuation of compulsory isolation beyond the maximum period indicated in section 40. An order of this kind may not exceed six months at a time.” Section 42 “When there is no longer cause for compulsory isolation, the county medical officer shall order its termination immediately ...” Section 43 “A person in compulsory isolation shall be properly cared for. He shall be offered the support and help needed, and shall be encouraged to change his attitude and way of life in order to terminate his involuntary confinement.", "Subject to the provisions of this Act, a person in compulsory isolation may not be subjected to any other restriction of his liberty. A person in compulsory care shall be offered employment and physical training suitable for his age and state of health. Unless there are exceptional circumstances, he must have an opportunity to be outdoors every day for at least an hour.” Section 44 “A person in compulsory isolation may be prevented from leaving the hospital premises or that part of the hospital to which he is admitted, and may in other respects be subjected to such constraints on his liberty of movement as are necessary to ensure his compulsory isolation. His freedom of movement may also be restricted when considerations of his own safety or that of other persons so demand.” Section 52 “Appeals against a decision by the county medical officer under the 1988 Act may be lodged with the County Administrative Court if the decision concerns: 1. practical instructions under section 17; 2. temporary detention under section 37; 3. rejection of a request for the termination of compulsory isolation; ...” 28. There is no particular provision in the Act concerning criminal sanctions against a person who transmits a dangerous disease.", "Certain types of behaviour, however, are considered to be criminal and therefore fall under the Criminal Code. In March 1999 a parliamentary committee entrusted with the task of reviewing the present legislation concerning infectious diseases submitted its report (SOU 1999:51). The committee expressed the view that compulsory isolation should take place only in very particular and exceptional circumstances. The committee proposed, having regard, among other things, to Article 5 of the Convention, a fixed time-limit permanently ending any compulsory isolation after a maximum of three months. So far, no government bill has been presented to Parliament.", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE 29. Numerous charters and declarations which specifically or generally recognise the human rights of people living with HIV/Aids have been adopted at national and international conferences. A few of these are mentioned below. In 1998 the Office of the High Commissioner for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/Aids (UNAIDS) issued “International Guidelines on HIV/Aids and Human Rights”.", "These guidelines built on expert advice to integrate the principles and standards of international human rights law into the HIV/Aids response. Under the heading “III. International human rights obligations and HIV/Aids” (subheading “C. The application of specific human rights in the context of the HIV/Aids epidemic”), several examples of the application of specific human rights to HIV/Aids are illustrated. For example, Section 9, “Right to liberty and security of person” reads as follows: “110.", "Article 9 of the International Covenant on Civil and Political Rights provides that 'Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law'. 111. The right to liberty and security of person should, therefore, never be arbitrarily interfered with, based merely on HIV status by using measures such as quarantine, detention in special colonies, or isolation.", "There is no public health justification for such deprivation of liberty. Indeed, it has been shown that public health interests are served by integrating people living with HIV/Aids within communities and benefiting from their participation in economic and public life. 112. In exceptional cases involving objective judgments concerning deliberate and dangerous behaviour, restrictions on liberty may be imposed. Such exceptional cases should be handled under ordinary provisions of public heath, or criminal laws, with appropriate due process protection.", "113. Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of person. This coercive measure is often utilised with regard to groups least able to protect themselves because they are within the ambit of government institutions or the criminal law, e.g. soldiers, prisoners, sex workers, injecting drug users and men who have sex with men. There is no public health justification for such compulsory HIV testing.", "Respect for the right to physical integrity requires that testing be voluntary and that no testing be carried out without informed consent.” In order to reflect new standards in HIV treatment as regards the international law on health rights, Guideline 6 concerning “Access to prevention, treatment, care and support” was revised following the Third International Consultation on HIV/Aids and Human Rights in Geneva on 25 to 26 July 2002. In its Recommendation on the ethical issues of HIV infection in the health care and social settings, the Committee of Ministers of the Council of Europe recommended the following with regard to health controls (Appendix to Recommendation No. R (89) 14, I. Public heath policy, C. Health controls): “Public health authorities are recommended to: – refrain from introducing restrictions on freedom of movement through ineffective and costly border procedures, for travellers of all kinds, including migrant workers; – not resort to coercive measures such as quarantine and isolation for people infected with HIV or those who have developed Aids.” When this recommendation was adopted on 24 October 1989, the Representative of Sweden, referring to Article 10.2.d of the Rules of Procedure of the meetings of the Ministers' Deputies, recorded her abstention and, in an explanatory statement, said that her government would not consider itself bound by the recommendation. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 30. The applicant complained that the compulsory isolation orders and his involuntary placement in hospital during the periods from 16 March 1995 until 25 April 1995, 11 June 1995 until 27 September 1995, 28 May 1996 until 6 November 1996, 16 November 1996 until 26 February 1997, and 26 February 1999 until 12 June 1999 had been in breach 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: ... (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; ... (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; ...” A. The parties' submissions 1.", "The applicant 31. The applicant submitted that the order to deprive him of his liberty had been “unlawful”. Firstly, it had had no legal basis in Swedish law. Section 38 of the 1988 Act did not fulfil the requirements of being “precise and foreseeable”. In particular, the notions “reasonable cause” and “a manifest risk of the infection being spread” were too vague and the preparatory notes gave no indication as to their meaning.", "Moreover, the requirements set out in the provision in question had never been fulfilled, since it required not only that he should have failed to comply with the practical instructions issued, but also that this should have entailed a manifest risk of his spreading the HIV virus. In addition, the instructions issued by the county medical officer had not been included in his medical record as prescribed by section 16 of the 1988 Act. Thus, although admittedly he had failed to appear at some of his appointments with the county medical officer and had absconded, thereby failing to comply with practical instructions issued by the county medical officer, this could not be said to have entailed a manifest risk of his spreading the HIV infection. In this connection, he referred to the fact that, during his last two years on the run, he had had to seek medical treatment twice and on both occasions he had said that he had the HIV virus. Moreover, he referred to his present conduct, including his sexual conduct, as confirmed by the witness who owned the farm hostel where he had stayed during his period at large from February 1997 until February 1999.", "He noted in addition, taking into consideration the advanced system in Sweden for registering the spreading of disease, that during his periods at large, which altogether amounted to more than four and a half years, there had been no indication that he had infected anybody. Furthermore, he drew attention to the statement submitted by the specialist in psychiatry, C.G. Secondly, pointing out that undergoing psychiatric interviews or conversations had not been among the practical instructions issued by the county medical officer on 1 September 1994, the applicant maintained that the court orders for his compulsory isolation in order to prevent him from spreading the HIV virus had infringed the principle of proportionality required by Article 5 § 1 (e) of the Convention. Even if he had, in fact, been isolated for “only” one and a half years, he pointed out that the parliamentary committee entrusted with the task of reviewing the legislation concerning infectious diseases had proposed in its report, having regard to Article 5 of the Convention, that any compulsory isolation should permanently end after a maximum of three months. 2.", "The Government 32. The Government contended that the involuntary placement of the applicant had fulfilled the requirements of both Article 5 § 1 (b) and (e) of the Convention. The detention had been lawful and free from arbitrariness and the 1988 Act satisfied the test of being precise and foreseeable as to effect. With specific regard to Article 5 § 1 (b), the Government observed that, pursuant to section 13 of the 1988 Act, it was incumbent on a person infected with a serious disease to comply with the instructions issued by a physician. Such instructions had been issued to the applicant by the county medical officer on 1 September 1994.", "The latter had, however, failed to satisfy a number of specific and concrete obligations that followed from those instructions. Moreover, it could be deduced from the 1988 Act that involuntary placement in a hospital was viewed as the last resort when voluntary measures had failed or were considered inadequate in order to protect other members of society. Thus, the applicant's detention had not been intended to punish him for not complying with the instructions but had been resorted to in the hope that his attitude and behaviour would change. With specific regard to Article 5 § 1 (e), the Government noted the Court's lack of case-law as to the detention of persons for the prevention of the spreading of infectious diseases. They noted the “Winterwerp conditions” relating to the detention of people of unsound mind and found that these conditions could also reasonably be applied in the present case.", "As to the question whether the measures taken were proportionate to the aim pursued, the Government stated that the objective of the measure in dispute had not been to provide medical treatment for the disease. They added that no treatment of an HIV-infected person would be carried out by means of coercive measures. Instead, the aim of confinement was to support, assist and encourage the carrier of the dangerous infection to change his or her attitude and lifestyle in such a way that his or her compulsory isolation could be ended as soon as possible. The Government considered that a number of voluntary measures had been attempted in vain during the period between September 1994 and February 1995 to ensure that the applicant's behaviour would not contribute to the spread of the HIV infection. Also, they noted the particular circumstances of the case, notably: the applicant's personality and behaviour, as described by various physicians and psychiatrists; his preference for teenage boys; the fact that he had transmitted the HIV virus to a young man; and the fact that he had absconded several times and refused to cooperate with the staff at the hospital.", "Thus, the Government found that the involuntary placement of the applicant in hospital had been proportionate to the purpose of the measure, namely to prevent him from spreading the infectious disease. As to the duration of the detention, the Government pointed out that even though the compulsory isolation order had been in force for several years the applicant's actual deprivation of liberty within the meaning of Article 5 of the Convention had lasted for approximately one and a half years. Furthermore, they alleged that had the applicant not absconded so many times it might have been possible for the staff to assist and support him in such a way that a change in his attitude would have taken place earlier, thus shortening the length of his compulsory isolation. B. The Court's assessment 1.", "Whether the applicant was “deprived of his liberty” 33. It was common ground between the parties that the compulsory isolation orders and the applicant's involuntary placement in the hospital amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. The Court reaches the same conclusion. 2. Whether the deprivation of liberty was justified under any of sub-paragraphs (a) to (f) of Article 5 § 1 34.", "Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds of deprivation of liberty. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub‑paragraph (see, for example, Eriksen v. Norway, judgment of 27 May 1997, Reports of Judgments and Decisions 1997-III, p. 861, § 76, and Brand v. the Netherlands, no. 49902/99, § 58, 11 May 2004). 35. Both parties found that the applicant's detention could be examined under Article 5 § 1 (e) in that its purpose was to prevent the applicant from spreading the HIV disease.", "The Court notes that the applicant's compulsory confinement was imposed pursuant to section 38 of the 1988 Act (see paragraph 27 above). Accordingly, the Court endorses the view that Article 5 § 1 (e) is applicable. As a result, it considers that there is no need to deal with the Government's submission that sub-paragraph (b) is also applicable, or with the applicability of any of the remaining sub-paragraphs of Article 5 § 1 of the Convention. 3. Whether the detention in issue was “lawful” and free from arbitrariness 36.", "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. 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 accessible and precise to allow the person – if necessary with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences a given action may entail (see, for example, Varbanov v. Bulgaria, no. 31365/96, § 51, ECHR 2000-X; Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II; Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54; Amuur v. France, judgment of 25 June 1996, Reports 1996-III, pp.", "850-51, § 50; and Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, § 51, 8 June 2004). Moreover, an essential element of the “lawfulness” of a detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness (see, amongst other authorities, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1864, § 118, and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). The detention of an individual 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 which might require that the person concerned be detained.", "That means that it does not suffice that the deprivation of liberty is in conformity with national law, it must also be necessary in the circumstances (see, for example, Witold Litwa, cited above, § 78) and in accordance with the principle of proportionality (see, for example, Vasileva v. Denmark, no. 52792/99, § 41, 25 September 2003). 37. With regard to the relevant domestic legislation, the applicant maintained that the notions “reasonable cause” and “manifest risk of the infection being spread” under section 38 of the 1988 Act were too vague; that the preparatory work on the Act did not give any indications in this regard; and that the requirements of clearness and foreseeability had therefore not been fulfilled. 38.", "It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49). In the instant case, pursuant to section 16 of the 1988 Act, the consulting physician was entrusted with a wide discretion when issuing the practical instructions needed to prevent the spread of infection. Those instructions could refer to the “person's contacts with the physician, hygiene, isolation in the home, employment and attendance at educational establishments, as well as his general way of life ...”. Under section 17 of the Act, the county medical officer could alter those instructions in the manner he found most appropriate.", "On 1 September 1994 the county medical officer issued the following instructions to the applicant: he was not allowed to have sexual intercourse without first informing his partner about his HIV infection; he was required to use a condom; he was to abstain from consuming such an amount of alcohol that his judgment would thereby be impaired and others put at risk of being infected with HIV; if the applicant was to have a physical examination, an operation, a vaccination or a blood test or was bleeding for any reason, he was obliged to tell the relevant medical staff about his HIV infection; he was also to inform his dentist about it; he was prohibited from giving blood and donating organs or sperm; and finally, he was to visit his consulting physician again and keep appointments fixed by the county medical officer. Throughout the domestic proceedings the applicant's conduct, including his sexual conduct, and his compliance with the instructions set out by the county medical officer were thoroughly examined. Moreover – despite the fact that being admitted to psychiatric treatment or treatment for alcohol abuse was not amongst the instructions issued by the county medical officer on 1 September 1994 – subjects relating to those topics were extensively inquired into in respect of the applicant. These examinations led the County Administrative Court to conclude, in its judgment of 16 February 1995, and its subsequent orders to prolong the compulsory confinement of the applicant, that the requirements of section 38 of the 1988 Act were fulfilled. The same conclusion was reached in its judgment of 23 April 1999, upheld on appeal by the Administrative Court of Appeal on 18 June 1999.", "Accordingly, the national courts considered that the applicant had not voluntarily complied with the measures needed to prevent the virus from spreading; that there was reasonable cause to suspect that the applicant, if released, would fail to comply with the practical instructions issued by the county medical officer; and that such non-compliance would entail a risk of the infection spreading. 39. In these circumstances the Court is satisfied that the applicant's detention had a basis in Swedish law. 40. The Court must therefore proceed to examine whether the deprivation of the applicant's liberty amounted to “the lawful detention of a person in order to prevent the spreading of infectious diseases” within the meaning of Article 5 § 1 (e) of the Convention.", "41. The Court has only to a very limited extent decided cases where a person has been detained “for the prevention of the spreading of infectious diseases”. It is therefore called upon to establish which criteria are relevant when assessing whether such a detention is in compliance with the principle of proportionality and the requirement that any detention must be free from arbitrariness. 42. By way of comparison, for the purposes of Article 5 § 1 (e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no.", "33, pp. 17-18, § 39; Johnson v. the United Kingdom, judgment of 24 October 1997, Reports 1997-VII, p. 2409, § 60; and, more recently, Varbanov, cited above, § 45). Furthermore, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 21, § 44).", "Also by way of comparison, for the purposes of Article 5 § 1 (e), an individual cannot be deprived of his liberty for being an “alcoholic” (within the autonomous meaning of the Convention as set out in Witold Litwa v. Poland, cited above, §§ 57-63) unless other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law; it must also be necessary in the circumstances (see, for example, Witold Litwa, cited above, § 78, and Hilda Hafsteinsdóttir, cited above, § 51). 43. Moreover, Article 5 § 1 (e) of the Convention refers to several categories of individuals, namely persons spreading infectious diseases, persons of unsound mind, alcoholics, drug addicts and vagrants. There is a link between all those persons in that they may be deprived of their liberty either in order to be given medical treatment or because of considerations dictated by social policy, or on both medical and social grounds.", "It is therefore legitimate to conclude from this context that a predominant reason why the Convention allows the persons mentioned in paragraph 1 (e) of Article 5 to be deprived of their liberty is not only that they are a danger to public safety but also that their own interests may necessitate their detention (see Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, pp. 36-37, § 98 in fine, and Witold Litwa, cited above, § 60,). 44. Taking the above principles into account, the Court finds that the essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest.", "When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist. 45. Turning to the instant case, it is undisputed that the first criterion was fulfilled, in that the HIV virus was and is dangerous to public health and safety. 46. It thus remains to be examined whether the applicant's detention could be said to be the last resort in order to prevent the spreading of the virus, because less severe measures had been considered and found to be insufficient to safeguard the public interest.", "47. In a judgment of 16 February 1995, the County Administrative Court ordered that the applicant be kept in compulsory isolation for up to three months under section 38 of the 1988 Act. Thereafter, orders to prolong his deprivation of liberty were continuously issued every six months until 12 December 2001, when the County Administrative Court turned down the county medical officer's application for an extension of the detention order. Accordingly, the order to deprive the applicant of his liberty was in force for almost seven years. Admittedly, since the applicant absconded several times, his actual deprivation of liberty lasted from 16 March 1995 until 25 April 1995, 11 June 1995 until 27 September 1995, 28 May 1996 until 6 November 1996, 16 November 1996 until 26 February 1997, and 26 February 1999 until 12 June 1999 – almost one and a half years altogether.", "48. The Government submitted that a number of voluntary measures had been attempted in vain during the period between September 1994 and February 1995 to ensure that the applicant's behaviour would not contribute to the spread of the HIV infection. Also, they noted the particular circumstances of the case, notably as to the applicant's personality and behaviour, as described by various physicians and psychiatrists; his preference for teenage boys; the fact that he had transmitted the HIV virus to a young man; and the fact that he had absconded several times and refused to cooperate with the staff at the hospital. Thus, the Government found that the involuntary placement of the applicant in hospital had been proportionate to the purpose of the measure, namely to prevent him from spreading the infectious disease. 49.", "The Court notes that the Government have not provided any examples of less severe measures which might have been considered for the applicant in the period from 16 February 1995 until 12 December 2001, but were apparently found to be insufficient to safeguard the public interest. 50. It is undisputed that the applicant failed to comply with the instruction issued by the county medical officer on 1 September 1994, which stated that he should visit his consulting physician again and keep to appointments set up by the county medical officer. Although he kept to three appointments with the county medical officer in September 1994 and one in November 1994, and received two home visits by the latter, on five occasions during October and November 1994 the applicant failed to appear as summoned. 51.", "Another of the practical instructions issued by the county medical officer on 1 September 1994 was that, if the applicant was to have a physical examination, an operation, a vaccination or a blood test or was bleeding for any reason, he was obliged to tell the relevant medical staff about his infection. Also, he was to inform his dentist about his HIV infection. In April 1999, before the County Administrative Court, the county medical officer stated that during the last two years, while on the run, the applicant had sought medical treatment twice and that it had been established that both times he had said that he had the HIV virus, as opposed to the period when he had absconded between September 1995 and May 1996, during which the applicant had failed on three occasions to inform medical staff about his virus. 52. Yet another of the practical instructions issued by the county medical officer on 1 September 1994 required the applicant to abstain from consuming such an amount of alcohol that his judgment would thereby be impaired and others put at risk of being infected with HIV.", "However, there were no instructions to abstain from alcohol altogether or to undergo treatment against alcoholism. Nor did the domestic courts justify the deprivation of the applicant's liberty with reference to his being an “alcoholic” within the meaning of Article 5 § 1 (e) and the requirements deriving from that provision. 53. Moreover, although the county medical officer stated before the County Administrative Court in February 1995 that, in his opinion, it was necessary for the applicant to consult a psychiatrist in order to alter his behaviour, undergoing psychiatric treatment was not among the practical instructions issued by the county medical officer on 1 September 1994. Nor did the domestic courts during the proceedings justify the deprivation of the applicant's liberty with reference to his being of “unsound mind” within the meaning of Article 5 § 1 (e) and the requirements deriving from that provision.", "54. The instructions issued on 1 September 1994 prohibited the applicant from having sexual intercourse without first having informed his partner about his HIV infection. Also, he was to use a condom. The Court notes in this connection that, despite his being at large for most of the period from 16 February 1995 until 12 December 2001, there is no evidence or indication that during that period the applicant transmitted the HIV virus to anybody, or that he had sexual intercourse without first informing his partner about his HIV infection, or that he did not use a condom, or that he had any sexual relations at all for that matter. It is true that the applicant infected the 19-year-old man with whom he had first had sexual contact in 1990.", "This was discovered in 1994, when the applicant himself became aware of his infection. However, there is no indication that the applicant transmitted the HIV virus to the young man as a result of intent or gross neglect, which in many of the Contracting States, including Sweden, would have been considered a criminal offence. 55. In these circumstances, the Court finds that the compulsory isolation of the applicant was not a last resort in order to prevent him from spreading the HIV virus because less severe measures had not been considered and found to be insufficient to safeguard the public interest. Moreover, the Court considers that by extending over a period of almost seven years the order for the applicant's compulsory isolation, with the result that he was placed involuntarily in a hospital for almost one and a half years in total, the authorities failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant's right to liberty.", "56. There has accordingly been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 58. The applicant claimed compensation for non-pecuniary damage in the amount of 400,000 Swedish kronor (SEK), equivalent to 44,305 euros (EUR)[1], on account of the alleged violation of Article 5 of the Convention. In support of his claim, he submitted that not only had he been deprived of his liberty for a total of one and a half years, he had also been forced to live in hiding for several years. 59. In the Government's view, compensation for non-pecuniary damage should not exceed SEK 100,000, equivalent to EUR 11,076.", "60. The Court considers that, in the circumstances of this particular case and making its assessment on an equitable basis, the applicant should be awarded the sum of EUR 12,000 (see, for example, Witold Litwa, cited above, § 85; Magalhães Pereira v. Portugal, no. 44872/98, § 66, ECHR 2002-I; and Morsink v. the Netherlands, no. 48865/99, § 74, 11 May 2004). B.", "Costs and expenses 61. The applicant claimed reimbursement of SEK 18,809, equivalent to EUR 2,083, for his costs and expenses before the Court. 62. The Government found this claim reasonable. 63.", "The Court is satisfied that there was a causal link between the sum claimed in respect of the applicant's costs and expenses before the Court and the violation it has found of the Convention. Accordingly, it awards the sum of EUR 2,083 under this head. C. Default interest 64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 5 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,083 (two thousand and eighty-three euros) in respect of costs and expenses; (iii) any tax that may be payable on these sums; (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 25 January 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé J.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinions of Mr Costa and Mr Cabral Barreto are annexed to this judgment. J.-P.C.S.D.", "CONCURRING OPINION OF JUDGE COSTA (Translation) 1. Like all my colleagues, I considered that the applicant's involuntary placement in hospital infringed his right to liberty as enshrined in Article 5 of the Convention. 2. I did, however, have some hesitation regarding not so much the operative provisions of the judgment as the reasoning which must be provided as a basis for them. 3.", "There seems little doubt that in the present case Mr Enhorn's confinement breached Article 5, but why was this so? The answer, in my view, is not so obvious. 4. Admittedly, liberty is in general the rule and deprivation of liberty the exception. For that reason, the Court has always taken the view that the exceptions listed in Article 5 § 1 (a) to (f) are exhaustive and not purely illustrative and that the conditions in which they are to be deemed lawful must be strictly construed.", "5. Article 5 § 1 (e), which provides for the possibility of depriving a person of his liberty “in accordance with a procedure prescribed by law” (“selon les voies légales” in French) where the purpose is “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”, has not given rise to a very extensive body of case-law, apart from certain well-known judgments such as Winterwerp v. the Netherlands, (judgment of 24 October 1979, Series A no. 33) which relates to persons of unsound mind. There are virtually no precedents concerning “the prevention of the spreading of infectious diseases”, and this contributes both to the interest and to the difficulty of the present case. 6.", "The applicant, who has the human immunodeficiency virus, is incontestably capable of “spreading” this sexually transmitted disease, and it has not been disputed that Article 5 § 1 (e) is applicable in his case. Aids was unknown when the Convention came into force, but the Convention is a living instrument which must be interpreted in the light of present-day conditions of living (and – alas! – dying). 7. The file and the judgment (see paragraph 8 of the judgment) reveal that the applicant did in fact spread the virus – in any event, once – in 1994 as a result of having sexual intercourse with another man.", "It should be noted, however, that it was at that time that he became aware that he was carrying the virus and that he had therefore spread it (without intending to). 8. The discovery of this fact caused the medical and judicial authorities to take measures in respect of the applicant, consisting firstly of prophylactic recommendations and subsequently, a few months later, of compulsory isolation in a hospital. 9. These measures had a legal basis in domestic law, namely the 1988 Infectious Diseases Act, in particular section 38, which is still in force although a parliamentary committee has recommended that recourse to compulsory isolation should be had only in exceptional cases (see paragraph 28 of the judgment).", "It seems clear to me that the measures in question were taken “in accordance with a procedure prescribed by law” within the meaning of Article 5 of the Convention. 10. For a detention to be “lawful”, however, it must also, like any measure depriving a person of his liberty, be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see, for example, K.-F. v. Germany, judgment of 27 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2674, § 63). 11. That is where the assessment becomes delicate.", "On the one hand, allowing a person to infect healthy individuals, thereby exposing them to a serious and usually fatal illness, poses a grave danger to public health and, above all, to the right of individuals to health. A few days ago in France a person was sentenced to six years' imprisonment for deliberately transmitting Aids to uninfected partners. On the other hand, it should again be emphasised that liberty (which gives rise to responsibility) is and should be the rule. Systematic confinement of persons capable of spreading infectious diseases would turn them into outcasts; this would be an unacceptable step backwards in terms of human rights, which are founded on the principle of freedom and responsibility of the human being. It is acceptable only for limited periods (“quarantine”), where the disease is curable, as in the case of tuberculosis (I do not think that placement in a sanatorium is in principle contrary to Article 5), and where the disease is spread unintentionally, which is not normally the case with sexually transmitted diseases: what could be more intentional than the conduct of a person who has sexual intercourse without any precautions when he knows that he is infected (this was not the case for the applicant in 1994 – see paragraph 7 of this opinion)?", "12. Paragraph 54 of the judgment attempts to provide a key to the problem. Repeated orders for the applicant's isolation were made over a total period of seven years. Such orders are the most radical measures available; other, less severe ones could have been taken. In sum, therefore, they were not balanced or proportionate, hence the finding of a violation.", "13. I both agree and disagree with this reasoning. On a general level, it is consistent with the case-law, at least with regard to the existence of “less severe” measures (see, for example, Witold Litwa v. Poland, no. 26629/95, §§ 26 and 79, ECHR 2000-III) – although the judgment does not identify them. It could and should have done so, I feel, by reiterating the instructions issued to the applicant (see paragraph 9 of the judgment) before recourse was had to compulsory isolation.", "14. However, I consider above all that the judgment should have drawn attention to two – contradictory – weaknesses in the approach taken by the Swedish authorities in this case. Firstly, for more than three-quarters of the lengthy period in which he was placed in isolation the applicant was at large, having absconded several times, apparently without any great effort being made to find him. If he was so dangerous that his confinement had to be prolonged, why was he de facto left at liberty with the risk of transmitting Aids? Secondly, it appears from the evidence that Mr Enhorn did not actually infect anyone, or indeed have any sexual relations, after 1994 (see the reference in paragraph 23 to the report drawn up in 1999 by a qualified psychiatrist).", "A fortiori, if there was no established risk that the applicant might pass on Aids, why was the order for his continued isolation extended for a further two and a half years? 15. All in all, this case illustrates both the difficulty of striking a balance between liberty (which should ultimately prevail) and the “protection of society”, and perhaps a degree of hesitation in the Article 5 case-law between the criteria of protection from arbitrariness, necessity, and proportionality. I can accept in conceptual terms that a disproportionate deprivation of liberty is not necessary and that, if it is not necessary, it borders on arbitrary. However, some clarification would be desirable, particularly with a view to ensuring legal certainty.", "This would be especially helpful as developments in epidemiology might unfortunately lead to a greater number of applications similar to that of Mr Enhorn. . CONCURRING OPINION OF JUDGE CABRAL BARRETO (Translation) I agree with the finding that there has been a violation of Article 5 § 1 of the Convention in the present case. However, in view of the significance of the interests at stake, I should like to add the following observations to explain why I came to that conclusion. The facts of the case relate to a deprivation of liberty in the context of the measures which States are called upon to take in order to protect society from the potential acts of individuals who have contracted an infectious disease such as the Aids virus.", "The obvious aim of such measures is to prevent the spread of a disease whose consequences are exceptionally serious. The problem is that where such measures entail deprivation of liberty within the meaning of Article 5 § 1 of the Convention, they must be consistent with the Court's settled case-law, which is rightly stringent. I would point out in this connection that “when the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case” (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65). The aim of Article 5, which relates to individual liberty, is “to ensure that no one should be dispossessed of this liberty in an arbitrary fashion” (see Guzzardi v. Italy, judgment of 6 November 1980, Series A no.", "39, p. 33, § 92). Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one, meaning that “only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision” (see Quinn v. France, judgment of 22 March 1995, Series A no. 311, pp. 17-18, § 42). The extensive case-law concerning the detention of persons of unsound mind (one of the scenarios referred to in paragraph 1 (e) of the provision in question) shows that the Court has always been particularly careful to examine whether a deprivation of liberty on this account was necessary when reviewing its “lawfulness” under the Convention.", "Such lawfulness “presupposes conformity with the domestic law in the first place and also, as confirmed by Article 18, conformity with the purpose of the restrictions permitted by Article 5 § 1 (e); it is required in respect of both the ordering and the execution of the measures involving deprivation of liberty”. The validity of continued confinement depends upon the persistence of the disorder in question (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39). Confirmation of this manner of interpreting the safeguards in Article 5 may be found in a judgment concerning the detention of an applicant who, having caused a disturbance in a public place while in a state of intoxication, was held in a sobering-up centre.", "In that particular case the Court held that “[t]he detention of an individual 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 public interest which might require that the person concerned be detained” and that “it does not suffice that the deprivation of liberty is executed in conformity with national law but it must also be necessary in the circumstances” (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). The Court found that that had not been the case, seeing that the authorities had not shown that other measures less severe than deprivation of liberty had been considered and found to be insufficient to safeguard the individual or public interest requiring the detention. In conclusion, I agree with the reasoning set out in the first part of paragraph 54 of the present judgment to the effect that the measures taken in respect of the applicant were not “relevant and sufficient”. However, I would like to distance myself from the reasoning – appearing, incidentally, as a supplementary consideration – concerning the review of the proportionality of the measure in terms of the fair balance to be struck between individual rights and the needs of the community.", "In my opinion, it follows both from the letter of the Court's settled case-law on deprivation of liberty and, above all, from the spirit that has imbued it and continues to do so, that if a review of a measure depriving a person of his liberty were to allow the State a certain margin of appreciation in such matters, this would not in any way accord with a line of case-law which, ever since Lawless, has taken care to stress the importance of the Article 5 safeguards even in a context in which recourse to Article 17 of the Convention might be necessary (see Lawless v. Ireland (merits), judgment of 1 July 1961, Series A no. 3, pp. 45-46, § 7). [1]1. On 10 February 2003, the date on which the claims were submitted." ]

[ "SECOND SECTION CASE OF USHACHOV v. UKRAINE (Application no. 44221/04) JUDGMENT STRASBOURG 13 December 2005 FINAL 12/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ushachov v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrI.", "Cabral Barreto,MrK. Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze,MsD. Jočienė,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 22 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44221/04) 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 Viktor Andriyovych Ushachov (“the applicant”), on 2 December 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.", "3. On 24 March 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1946 and lives in the town of Askaniya-Nova, the Kherson region. 5. By two separate decisions of 22 April 2002, the Chaplynsk Town Court ordered the State Agricultural Research Firm “Askaniya-Nova” to pay the applicant the total of UAH 10,101[1] in debts and compensation. 6. On 27 June 2002 the Chaplynsk Town Bailiffs’ Service instituted enforcement proceedings.", "7. On 16 December 2002 the Kherson Regional Commercial Court initiated bankruptcy proceedings against the debtor. On 26 November 2003 the same court terminated these proceedings. On 23 May 2003 the court reinitiated bankruptcy proceedings against the debtor. 8.", "On 2 December 2004 the Bailiffs’ Service informed the applicant that the judgment given in his favour could not be enforced due to the debtor’s lack of funds and the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29 November 2001. 9. The judgments in the applicant’s favour remain unenforced. II. RELEVANT DOMESTIC LAW 10.", "The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW 11. The applicant complained about the State authorities’ failure to enforce the judgments of the Chaplynsk City Court of 22 April 2002 in full and in due time. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” I. ADMISSIBILITY A.", "The Government’s preliminary objections 12. The Government raised objection regarding exhaustion of domestic remedies similar to one which the Court has already dismissed in the case of Romashov v. Ukraine (cited above, §§ 30-33). The Court considers that the present objection must be rejected for the same reasons. 13. The Court concludes that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "It finds no ground for declaring it inadmissible. B. Other complaints 14. The applicant further complained about a violation of Article 2 (right to life), Article 14 (prohibition of discrimination) and Article 17 (prohibition of abuse of rights) of the Convention on account of the non-enforcement of the judgment in his favour. 15.", "The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. II. MERITS 16. In their observations, the Government contended that there had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (as in the cases of Romashov, cited above, § 37, and Voytenko v. Ukraine, no.", "18966/02, § 37, judgment of 29 June 2004). 17. The applicant disagreed. 18. The Court notes that the judgments of the Chaplynsk City Court of 22 April 2002 remained unenforced for more than three years and seven months.", "19. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see, for instance, Voytenko, cited above, §§ 39-43 and 53-55, and Sokur v. Ukraine, no. 29439/02, §§ 30-37, 26 April 2005). 20.", "Having examined all the material submitted, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 22. The applicant claimed UAH 10,101[2] in respect of pecuniary damage, which represented the amount of the judgment debts, and EUR 4,000,000 in respect of non-pecuniary damage. 23. The Government maintained that the applicant had not substantiated the amounts claimed and submitted that the finding of a violation would constitute sufficient just satisfaction.", "24. In so far as the applicant claimed the amounts awarded to him by the judgments at issue, the Court considers that the Government should pay him the outstanding debts in settlement of the outstanding pecuniary damage. As to the applicant’s claim for non-pecuniary damage, the Court considers it excessive and, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 1,720. B. Costs and expenses 25.", "The applicant did not submit any claim under this head. The Court therefore makes no award. C. Default interest 26. 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 applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the judgment debts still owed to him, as well as EUR 1,720 (one thousand seven hundred and twenty euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé A.B. BakaRegistrarPresident [1].", "Around 1,686 euros – “EUR”. [2]. Around EUR 1,686 euros." ]

[ "FIRST SECTION CASE OF KOKSHAROVA v. RUSSIA (Application no. 25965/03) JUDGMENT STRASBOURG 2 October 2014 This judgment is final but it may be subject to editorial revision. In the case of Koksharova v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Julia Laffranque,Dmitry Dedov, judges,and Søren Prebensen, Acting Deputy Section Registrar, Having deliberated in private on 9 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25965/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Sofya Mitrofanovna Koksharova (“the applicant”), on 19 June 2003.", "2. The applicant was represented by N. Ya. Mozzhukhin, a lawyer practising in Archangelsk. 3. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "4. On 1 September 2006 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is a Russian national who was born in 1930 and lives in Arkhangelsk.", "6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 19 February 2001 the applicant brought a court action against the Social Security Fund of the Russian Federation (Фонд социального страхования Российской Федерации) for compensation of health damage. 8.", "On 4 April 2001 her claim was dismissed by the Oktyabrskiy District Court of Arkhangelsk. The decision was quashed on appeal and the case was remitted for a fresh examination to the same court. 9. On 3 June 2002 the Oktyabrskiy District Court of Arkhangelsk granted the applicant’s claim and ordered the Social Security Fund (i) to calculate the amount of the lump-sum compensation for the period from 1 January 2000 to May 2002 and of the monthly compensation which should be paid from 1 June 2002, (ii) to pay these amounts to the applicant, and (iii) to index-link the monthly payments in future in accordance with national law. 10.", "The judgment was not appealed against and became final on 13 June 2002. 11. The applicant states that no lump-sum compensation was paid to her. 12. On 26 August 2002 the Social Security Fund calculated the monthly payments due to the applicant as of 15 November 2001.", "13. On 18 December 2002 the President of the Arkhangelsk Regional Court lodged with the Presidium of that court an application for supervisory review of the judgment of 3 June 2002. He also suspended the execution of the judgment pending the supervisory review proceedings. 14. On the same date the Arkhangelsk Regional Court informed the applicant that the Presidium would examine her case on 25 December 2002.", "15. On 25 December 2002 the Presidium quashed the judgment of 3 June 2002 stating that the first instance court had incorrectly applied domestic law: the lump-sum compensation should have been calculated from 15 November 2001 and not 1 January 2000. The case was remitted for a fresh examination to the first instance court. 16. On 25 June 2003 the Oktyabrskiy District Court dismissed the applicant’s claim.", "17. On 28 July 2003 the Arkhangelsk Regional Court upheld the judgment. II. RELEVANT DOMESTIC LAW 18. For the relevant provisions on the supervisory review proceedings contained in the 1964 Code of Civil Procedure, which was in force at the material time, see the Court’s judgment in the case of Ryabykh v. Russia, no.", "52854/99, §§ 31-42, ECHR 2003‑IX. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW 19. The applicant complained under Article 6 § 1 and Article 1 of Protocol No.", "1 about the quashing by way of supervisory review of the final judgment of 3 June 2002. These Articles, insofar as relevant, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 20.", "The Government argued that the supervisory-review proceedings had been held in compliance with the domestic law requirements, and the Presidium had reversed the judgment because of a serious violation of substantive law. They provided detailed information on the material norms allegedly misinterpreted by the first instance court and concluded that the proceedings before the lower courts were tarnished with a fundamental defect. As regards the complaint under Article 1 of Protocol No. 1, the Government submitted that there was no violation since the sums paid pursuant to the quashed judgment had never been and would not be claimed back from the applicant. 21.", "The applicant maintained her claims and stated that in fact the payments awarded by the judgment of 3 June 2002 had not been fully made. In particular, she indicated that the payments were made for the period starting from 15 November 2002, and not 1 June 2002, as was set in the judgment, and the lump-sum compensation had not been paid at all. A. Admissibility 22. 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. Article 6 § 1 of the Convention 23. The Court reiterates that the quashing by way of supervisory review of a judicial decision which has become final and binding may render the litigant’s right to a court illusory and infringe the principle of legal certainty (see, among many other authorities, Ryabykh v. Russia, no.", "52854/99, §§ 56‑58, ECHR 2003‑IX). Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Kot v. Russia, no. 20887/03, § 24, 18 January 2007, and Protsenko v. Russia, no. 13151/04, §§ 25-34, 31 July 2008). 24.", "The Court observes that in the case at hand the judgment was set aside by way of a supervisory review solely on the ground that the lower courts had incorrectly applied the substantive law. The Court reiterates its constant approach that in the absence of a fundamental defect in the previous proceedings a party’s disagreement with the assessment made by the first-instance and appeal courts is not a circumstance of a substantial and compelling character warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant’s claim (see Dovguchits v. Russia, no. 2999/03, § 30, 7 June 2007, and Kot, cited above, § 29). The Government did not put forward any arguments which would enable the Court to reach a different conclusion in the present case. 25.", "There has been, accordingly, a violation of Article 6 § 1 of the Convention. 2. Article 1 of Protocol No. 1 26. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary’s “possession” within the meaning of Article 1 of Protocol No.", "1 (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 27. The Court further reiterates that the binding and enforceable judgment, though it did not indicate certain sums, unconditionally ordered the Social Security Fund to make the payments on a regular basis. The judgment thus created an asset within the meaning of Article 1 of Protocol No.", "1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002, and Malinovskiy v. Russia, no. 41302/02, § 43, ECHR 2005‑VII (extracts)). 28. The Court notes the Government’s argument that the amounts paid to the applicant under the quashed judgment may not be claimed back, and rejects it for the following reasons.", "First, it was not contested by the Government - and the Court accordingly finds it established - that the initial domestic judgment had remained unenforced in the part concerning the lump sum payment by the date of its quashing. As a result of the quashing the applicant was thus prevented from receiving that part of the award through no fault of her own. Second, although the applicant had received several payments of the monthly compensation, after the quashing of the judgment she was deprived of an opportunity to receive the money she had legitimately expected to receive on a monthly basis. The above frustrated the applicant’s reliance on the binding judicial decision and deprived her of an opportunity to receive the judicial award (see Tarnopolskaya and Others v. Russia, nos. 11093/07 et al., § 37, 7 July 2009) In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgment of 3 June 2002 by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of Protocol No.", "1. 29. There has therefore been a violation of that provision. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 30.", "The applicant also raised other complaints under Articles 4 and 6 of the Convention and Article 1 of Protocol No. 1. 31. 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. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant did not submit a claim for just satisfaction within the specified time-limit. Accordingly, the Court considers that there is no call to award her any sum on that account.", "B. Costs and expenses 34. The applicant did not seek reimbursement of her costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court does not make any award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 concerning quashing of the final judgment by way of supervisory review admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the final judgment by way of supervisory review. Done in English, and notified in writing on 2 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren PrebensenKhanlar Hajiyev Acting Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF TSEBOYEV AND OTHERS v. RUSSIA (Applications nos. 32041/17 and 7 others - see appended list) JUDGMENT STRASBOURG 27 June 2019 This judgment is final but it may be subject to editorial revision. In the case of Tseboyev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Gilberto Felici, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 6 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "Notice of the applications was given to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial 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 5 § 3 OF THE CONVENTION 6. The applicants complained 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 observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no.", "543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9.", "Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 11. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 12. Regard being had to the documents in its possession and to its case‑law (see, in particular, 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. 13.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 4.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena PoláčkováActing 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’s name Date of birth Representative’s name and location Period of detention Court which issued detention order/examined appeal Length of detention Specific defects Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[i] 32041/17 06/04/2017 Alan Vladislavovich Tseboyev 26/09/1976 01/03/2012 pending Supreme Court of the Komi Republic More than 7 year(s) and 1 month(s) and 4 day(s) collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed 9,400 60787/17 18/07/2017 Ruzil Rimovich Davletshin 02/09/1988 15/10/2014 to 08/12/2017 Military Court of the Privolzhye Circuit 3 year(s) and 1 month(s) and 24 day(s) collective detention orders; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed; failure to conduct the proceedings with due diligence during the period of detention 4,200 2840/18 30/11/2017 Vladimir Aleksandrovich Rashchupkin 06/01/1978 06/12/2012 to 27/12/2017 Korolyev Town Court; Moscow Regional Court 5 year(s) and 22 day(s) collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed 6,600 2956/18 27/11/2017 Leonid Vladimirovich Lobkov 30/03/1961 28/11/2016 to 09/04/2018 Syktyvkar Town Court; Supreme Court of the Komi Republic 1 year(s) and 4 month(s) and 13 day(s) fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; 2,000 3704/18 03/01/2018 Yekaterina Vladimirovna Fedorova 11/10/1972 03/08/2016 pending Oktyabrskiy District Court of Lipetsk; Lipetsk Regional Court More than 2 year(s) and 8 month(s) and 2 day(s) collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed; failure to conduct the proceedings with due diligence during the period of detention; 3,800 5662/18 03/01/2018 Mikhail Vladimirovich Maslov 16/08/1978 08/07/2015 pending Oktyabrskiy District Court of Lipetsk; Lipetsk Regional Court More than 3 year(s) and 8 month(s) and 28 day(s) collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice as the case progressed; failure to conduct the proceedings with due diligence during the period of detention; failure to examine the possibility of applying other measures of restraint; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; 5,100 21234/18 24/04/2018 Vitaliy Aleksandrovich Prishibskiy 21/11/1991 Shukhardin Valeriy Vladimirovich Moscow 19/11/2017 to 09/07/2018 Sovetskiy District Court of Orsk; Orenburg Regional Court 7 month(s) and 21 day(s) fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; 1,300 21283/18 21/04/2018 Magomed Ortsovich Batazhev 22/06/1981 Geroyev Akhmed Daudovich Moscow 30/03/2016 pending Tverskoy District Court of Moscow; Presnenskyy District Court of Moscow; Moscow City Court More than 3 year(s) and 6 day(s) collective detention orders; failure to examine the possibility of applying other measures of restraint as the case progressed; failure to conduct the proceedings with due diligence during the period of detention; 4,000 [i].", "Plus any tax that may be chargeable to the applicants." ]

[ "FIRST SECTION CASE OF GLEBOV and GLEBOVA v. RUSSIA (Application no. 21777/04) JUDGMENT STRASBOURG 29 November 2007 FINAL 29/02/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Glebov and Glebova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr A. Wampach, Deputy Section Registrar, Having deliberated in private on 8 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21777/04) 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 two Russian nationals, Mr Aleksey Grigoryevich Glebov and Mrs Svetlana Mitrofanovna Glebova (“the applicants”), on 27 April 2004. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. On 27 June 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4. The applicants were born in 1936 and 1939 respectively and live in Voronezh.", "5. The applicants sued the local Social Security Committee for an adjustment of their pensions in line with inflation. By judgments of 25 January 2001, the Kominternovskiy District Court of Voronezh awarded them 1,066.98 and 1,083.88 Russian roubles, respectively. 6. The monies were paid to the applicants on 19 October 2006.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 7. Referring to Articles 2, 14 and 17 of the Convention, the applicants complained that the judgments of 25 January 2001 had not been enforced in good time. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 (see Burdov v. Russia, no. 59498/00, § 26, ECHR 2002‑III). The relevant parts of those 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 8.", "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 9.", "The Government acknowledged a violation of the applicants' rights under Article 6 of the Convention and Article 1 of Protocol No. 1. 10. The applicants submitted that the judgments of 25 January 2001 had been enforced in October 2006. 11.", "The Court observes that the judgments of 25 January 2001 had been enforced in full on 19 October 2006. Thus, they remained without enforcement for more than five years. 12. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Burdov, cited above, § 35; Wasserman v. Russia, no.", "15021/02, § 35 et seq., 18 November 2004; and Gerasimova v. Russia, no. 24669/02, § 17 et seq., 13 October 2005). 13. Having regard to its case-law on the subject, the Court finds that by failing, for years, to comply with the enforceable judgments in the applicants' favour the domestic authorities impaired the essence of their right to a court and prevented them from receiving the money they could reasonably have expected to receive. 14.", "There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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.", "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 application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No.", "1. Done in English, and notified in writing on 29 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachLoukis Loucaides Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF OPAŁKO v. POLAND (Application no. 4064/03) JUDGMENT STRASBOURG 15 January 2008 FINAL 15/04/2008 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 Opałko v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Giovanni Bonello,Kristaq Traja,Lech Garlicki,Ljiljana Mijović,Ján Šikuta,Päivi Hirvelä, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 11 December 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4064/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Stanisław Opałko (“the applicant”), on 22 January 2003. 2. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 19 March 2007 the President of the Fourth Section of the Court decided to communicate the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. The President also gave priority to the application, pursuant to Rule 41 of the Rules of the Court. 4. On 10 December 2007 at 5.35 p.m. the Government sent a facsimile to the Court informing it that they were ready to settle the case. However, having regard to the fact that it was considering a draft of a judgment in the case at that stage, the Court decided to treat the Government's initiative as belated and to proceed with its deliberations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1935 and lives in Komorowice. 6. In 1986 the applicant was arrested and detained on remand on a charge of stealing 4 tons of coal.", "The subsequent criminal proceedings against him ended in 1991, when he was finally acquitted. 7. On 22 January 1992 the applicant lodged with the Wrocław Regional Court (Sąd Wojewódzki) an action for compensation for unlawful detention in 1986. 8. On 22 August 1994 the court held the first hearing, which was however adjourned.", "9. At the second hearing held on 31 August 1995 the court dismissed the applicant's action. 10. On 7 September 1995 the applicant lodged an appeal against the decision. However, the case file was transferred to the Wrocław Court of Appeal (Sąd Apelacyjny) only on 21 May 1999.", "11. On 14 July 1999 the Court of Appeal dismissed the appeal. 12. August 1999 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 13.", "On 6 February 2002 the Supreme Court allowed the appeal, quashed both judgments and remitted the case to the Regional Court. 14. The Wrocław Regional Court held the first hearing on 24 September 2002. Subsequently, on seven occasions, the composition of the court changed so the proceedings had to start from the beginning. 15.", "On 16 March 2005 the applicant lodged a complaint about the unreasonable length of the proceedings 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”). 16. On 29 April 2005 the Wrocław Court of Appeal allowed the complaint and granted the applicant PLN 2,000 in compensation (approximately EUR 514). The court analysed the course of the impugned proceedings in the light of the criteria which the Court itself applies and concluded that the Regional Court had violated the applicant's right to a hearing without unjustified delay. 17.", "On 14 October 2005 the Wrocław Regional Court gave judgment. The court allowed the applicant's action and granted him PLN 27,000 in compensation for his unlawful detention in 1986. The applicant appealed. 18. On 19 April 2006 the Wrocław Court of Appeal upheld the judgment.", "19. The applicant did not lodge a cassation appeal and the judgment became final. II. RELEVANT DOMESTIC LAW AND PRACTICE 20. 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 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, 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...” 22. The Government did not comment on the merits of the applicant's complaint. 23. The Court notes that the proceedings commenced on 22 January 1992. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect.", "Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 19 April 2006. It thus lasted almost 13 years for three levels of jurisdiction. A. Admissibility 24. The Government raised an objection that the applicant cannot be considered a “victim”, within the meaning of Article 34 of the Convention, of a violation of his right to a hearing within a reasonable time.", "The Court notes that this issue falls to be determined in the light of the principles established under the Court's case-law (Cocchiarella v. Italy [GC], no. 64886/01, §§ 69‑107, ECHR 2006‑... and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178‑213, ECHR 2006 - ...). 25.", "The Wroclaw Court of Appeal analysed the course of the impugned proceedings in the light of the criteria which the Court itself applies. It concluded that the Regional Court had violated the applicant's right to a hearing without unjustified delay and awarded the applicant the equivalent of EUR 514 in respect of the length of the proceedings. The just satisfaction awarded by the Court of Appeal amounts to approximately 7 per cent of what the Court would be likely to have awarded the applicant at that time in accordance with its practice, taking into account the particular circumstances of the proceedings. The Court thus concludes that the redress provided to the applicant at domestic level, considered on the basis of the facts of which he complains before the Court, was insufficient (see Czajka v. Poland, no. 15067/02, § 56, 13 February 2007).", "In these circumstances, the argument that the applicant has lost his status as a “victim” cannot be upheld. 26. The Government also submitted that the applicant had not exhausted remedies available under Polish law. They maintained that he had not lodged a civil claim for compensation for damage suffered due to the excessive length of proceedings with the Polish civil courts under Article 417 of the Civil Code. 27.", "The applicant contested the Government's arguments and submitted that he had made use of a remedy available to him and, particularly given his advanced age, he should not be required to initiate another set of proceedings. 28. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires an applicant first to use the remedies provided by the national legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp.", "2275–76, §§ 51–52). 29. The Court also reiterates that, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, mutatis mutandis, H.D. v. Poland (dec.), no. 33310/96, 7 June 2001, Kaniewski v. Poland, no.", "38049/02, §§ 32-39, 8 November 2005). 30. The Court notes that the applicant lodged a complaint about the length of the proceedings under the 2004 Act. On 26 April 2005 the Poznan Court of Appeal admitted that the proceedings had been lengthy and awarded the applicant the equivalent to EUR 514 in compensation. The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland (see Michalak v. Poland (dec.) no.", "24549/03, §§ 37-43). 31. The Court considers therefore that, having exhausted the available remedy provided by the 2004 Act, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation (see Cichla v. Poland, no. 18036/03, § 26, 10 October 2006). Accordingly, the Court concludes that, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies.", "For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 32. 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 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.", "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). 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. Moreover, the Court notes that the case lay dormant for three and a half years before being transferred to the Court of Appeal and that the Government failed to give any explanation of this delay (see paragraph 9 above). Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "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 20,000 Polish zlotys (approximately 5,500 euros (EUR) on the date on which the claim had been submitted) in respect of non-pecuniary damage. 38. The Government submitted that the claim was exorbitant. 39. The Court considers that the applicant must have sustained non-pecuniary damage resulting from the protracted length of the proceedings.", "In the particular circumstances of the case it considers that it should award the full sum claimed. B. Costs and expenses 40. The applicant also claimed PLN 3,000 for the costs and expenses incurred before the domestic courts and the Court. 41.", "The Government contested the claim. 42. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 covering costs under all heads. C. Default interest 43.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) for costs and expenses, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident" ]

[ "THIRD SECTION CASE OF SAPEYAN v. ARMENIA (Application no. 35738/03) JUDGMENT STRASBOURG 13 January 2009 FINAL 13/04/2009 This judgment may be subject to editorial revision. In the case of Sapeyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 9 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35738/03) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Zhora Sapeyan (“the applicant”), on 28 August 2003.", "2. The applicant was represented by Mr M. Muller, Mr T. Otty, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers of the Kurdish Human Rights Project (KHRP) based in London, Mr T. Ter-Yesayan and Mr A. Zohrabyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3.", "On 23 June 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in Ashtarak, Armenia.", "He is the chairman of a regional branch of the Republic Party («Հանրապետություն» կուսակցություն). A. The demonstration of 20 February 2003 5. In 2003 a presidential election was held in Armenia with its first and second rounds taking place on 19 February and 5 March respectively. Following the first and second rounds, a series of protest rallies were organised in Yerevan by the opposition parties.", "6. On 20 February 2003 the applicant participated in a demonstration held in Yerevan which was apparently followed by a march. 7. On 26 February 2003, when another demonstration was apparently supposed to take place in Yerevan, the applicant and two other members of his party set off by car from Ashnak village to Yerevan. 8.", "The applicant alleged that on the road to Yerevan their car was stopped by several individuals in civilian clothes who introduced themselves as officers of the Aragatsotn Regional Police Department. The applicant and his colleagues were taken to the Regional Police Department. From there the applicant was transferred to the Central District Police Department of Yerevan where an administrative case was initiated against him on account of his participation in the demonstration of 20 February 2003. 9. On the same date, several hours later, the applicant was taken to the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքներկ առաջին ատյանի դատարան).", "There he was brought before Judge A. who, having heard the applicant and his lawyer, after a brief hearing sentenced the applicant under Article 180.1 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) to ten days of administrative detention, finding that: “On 20 February 2003 [the applicant] participated in an unauthorised march, thus violating the prescribed rules for organising and holding street marches and demonstrations. For this act [the applicant] was brought to the Central District Police Department on 26 February 2003. The fact of [the applicant’s] participation in an unauthorised march was confirmed by the explanation given by [the applicant] in court and the examination of the materials of the administrative case file.” 10. The decision stated that it was not subject to appeal and could be protested against only by the prosecutor. 11.", "On 27 February 2003 the applicant’s lawyer lodged both an appeal with the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) and an application with the General Prosecutor (ՀՀ գլխավոր դատախազ) requesting him to initiate an appeal against the decision of the District Court. The lawyer argued at the outset, relying on various domestic provisions, that he was entitled to lodge an appeal against the decision of the District Court. As to the merits, he submitted that the interference with the applicant’s right to freedom of peaceful assembly was in violation of the Constitution and was not prescribed by law, and the penalty imposed was excessive. The lawyer attached a copy of the contested decision to the appeal. 12.", "On 2 March 2003 the President of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ) reviewed the applicant’s conviction, finding that: “[The applicant, according to the decision of the District Court, was subjected to administrative detention] ... for violating the prescribed rules for organising and holding assemblies, demonstrations, street marches and rallies, by participating in an unauthorised demonstration and street march on 20 February 2003. Having familiarised myself with [the applicant’s] appeal and the materials concerning the administrative offence, I find that the penalty imposed on [the applicant] must be changed.” 13. The President changed the penalty to an administrative fine of 1,000 Armenian drams (AMD) (approximately 1.5 euros (EUR) at the material time) and ordered the applicant’s release. On the same date the applicant was released from detention, after he had served about four days of his sentence. 14.", "By a letter of 4 March 2003 the applicant’s lawyer was informed by the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն) that, on the basis of the applicant’s appeal, the penalty had been changed and the applicant had been released by decision of the Court of Appeal. B. The demonstration of 14 May 2003 15. On 3 December 2003 the applicant supplemented his initial application, complaining about the following events. 16.", "On 14 May 2003 he participated in a demonstration held in Yerevan. 17. On 21 May 2003 he was taken to a police station and then transported to the Kentron and Nork-Marash District Court of Yerevan where an administrative fine of AMD 1,000 was imposed on him for having organised the participation of a group of people from his region in an unauthorised demonstration on 14 May 2003. II. RELEVANT DOMESTIC LAW 18.", "For a summary of the relevant provisions concerning administrative proceedings see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). 19. For a summary of the relevant legislation invoked by the parties in connection with Article 180.1 of the CAO (see paragraphs 33 and 34 below) see the judgment in the case of Mkrtchyan v. Armenia (no. 6562/03, §§ 20-28, 11 January 2007).", "THE LAW I. COMPLIANCE WITH THE SIX-MONTH RULE AS REGARDS THE DECISION OF 26 FEBRUARY 2003 20. The applicant raised a number of complaints under Article 5 §§ 1, 2, 3 and 4, Article 6 §§ 1 and 3 (a-d), Article 10, Article 11, Article 13 and Article 14 of the Convention and Article 3 of Protocol No. 1 thereto in connection with his conviction of 26 February 2003. 21.", "The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies (see, among other authorities, Danov v. Bulgaria, no. 56796/00, § 56, 26 October 2006). However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006‑III). Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the acts or measures complained of, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no.", "57420/00, ECHR 2003-I). Thus, the pursuit of remedies which fall short of the above requirements will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002). 22. Turning to the circumstances of the present case, the Court notes that the applicant raised a number of complaints in his application in connection with the decision of the Kentron and Nork-Marash District Court of Yerevan of 26 February 2003.", "This decision, however, was final and there were no further sufficiently accessible and effective remedies to exhaust, including the extraordinary remedies which could be initiated under Article 294 of the CAO with a prosecutor or the president of a higher court (see Galstyan, cited above, §§ 40-42). The applicant nevertheless tried this avenue for review by submitting both an appeal to the Criminal and Military Court of Appeal and a request for appeal to the General Prosecutor (see paragraph 11 above). On 2 March 2003 the President of the Criminal and Military Court of Appeal decided to review the final decision of the District Court of 26 February 2003, on the basis of the applicant’s extraordinary appeal. The applicant lodged his application with the Court on 28 August 2003, which is more than six months from the date of the District Court’s decision but less than six months from the date of the decision of the Court of Appeal. It is therefore necessary to determine whether the decision of the Court of Appeal taken on the basis of the applicant’s extraordinary appeal restarted the running of the six-month period as far as the final decision of the District Court is concerned.", "23. The Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months from the decisions rejecting their requests for reopening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; and Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000).", "However, the Court has also accepted that situations in which a request to reopen the proceedings is successful and actually results in a reopening may be an exception to this rule (see Pufler v. France, no. 23949/94, Commission decision of 18 May 1994, Decisions and Reports 77-B, p. 140; Korkmaz v. Turkey (dec.), no. 42576/98, 17 January 2006; and Atkın v. Turkey, no. 39977/98, § 33, 21 February 2006). 24.", "It appears that the situation in the present case may be regarded as falling into the category of exceptional cases, given that the applicant’s extraordinary remedy actually led to a review of the final decision on his administrative case. The Court, however, does not consider that the mere fact of reopening proceedings will restart the running of the six month period. It cannot be excluded that a case may be reopened on grounds unrelated to the Convention complaints which an applicant may later lodge with the Court and the Court doubts that such a reopening will affect the calculation of the six month period. Since Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court before his position in connection with his complaint has been finally settled at the domestic level (see Petrie and Others v. the United Kingdom (dec.), no. 29703/05, 6 February 2007), it means that an applicant is required under that Article to seize the Court once his position in connection with his complaint has been finally settled and the reopening of a case on unrelated grounds will not affect the finality of the settlement in respect of that particular issue.", "The Court therefore considers that, in cases where proceedings are reopened or a final decision is reviewed, the running of the six month period in respect of the initial set of proceedings or the final decision will be interrupted only in relation to those Convention issues which served as a ground for such a review or reopening and were the object of examination before the extraordinary appeal body. A different approach would also be contrary to the principle of subsidiarity, on which the Convention machinery is founded and which requires that the complaints intended to be made at the international level should first be aired in substance before the domestic courts (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III). 25. In the present case, the Court notes that the applicant did not raise in his extraordinary appeal to the Court of Appeal, either explicitly or in substance, almost all of the complaints which he is currently raising before the Court (see paragraph 20 above).", "The only issue raised in that appeal concerned the alleged unlawfulness of the interference with his right to freedom of assembly. The Court further notes that the Court of Appeal did not address of its own motion any of those issues either, apart from upholding the applicant’s conviction under Article 180.1 of the CAO and modifying the penalty imposed by the District Court. Thus, the complaints raised by the applicant before the Court in connection with the decision of the District Court, apart from the one concerning the alleged unlawfulness of the interference with his right to freedom of peaceful assembly, were not the object of examination before the Court of Appeal and the grounds on which the Court of Appeal decided to review the final decision of the District Court cannot be seen as being in any way related to those complaints. The Court therefore concludes that the review of the final decision of the District Court by the Court of Appeal upon the applicant’s extraordinary appeal did not re-start the running of the six-month period in respect of those complaints. 26.", "It follows that the applicant’s complaints concerning the decision of 26 February 2003, other than the one under Article 11, were lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 27. The Court considers, however, that different considerations apply to the applicant’s complaint under Article 11. It reiterates that the six-month rule is autonomous and must be construed and applied according to the facts of each individual case, so as to ensure the effective exercise of the right to individual application (see Fernandez-Molina Gonzalez and Others v. Spain (dec.), no. 64359/01, ECHR 2002‑IX (extracts)).", "The Court notes that, even if the applicant pursued his complaint under Article 11 through an extraordinary remedy which has been already found by the Court to be ineffective (see Galstyan, cited above), this actually led to the re-examination of his case on that particular ground and a new decision on the merits. In such circumstances, and bearing in mind that Article 35 must be interpreted with some flexibility (see Ahtinen v. Finland (dec.), no. 48907/99, 31 May 2005), the Court does not consider that this complaint was introduced out of time. II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 28.", "The applicant complained that his conviction had unlawfully interfered with his rights guaranteed by Article 11 of the Convention which, in so far as relevant, provides: “1. Everyone has the right to freedom of peaceful assembly... 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...” A. Admissibility 29. The Court notes that, as already indicated above, this complaint was lodged within six months from the date of the final decision (see paragraph 27 above). 30.", "It 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 31.", "It was not in dispute between the parties whether there had been an interference with the applicant’s right to freedom of peaceful assembly. The Court considers that the applicant’s conviction for participation in an unauthorised march undoubtedly interfered with his right to freedom of peaceful assembly. 32. The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 of this Article and is “necessary in a democratic society” for the achievement of those aims. 33.", "The Government submitted that the interference was prescribed by law. In particular, the applicant was convicted under Article 180.1 of the CAO for “violation of the prescribed rules for organising or holding assemblies, rallies, street marches and demonstrations”. These rules were prescribed by the USSR Law on Approving Decrees of the Chairmanship of the Supreme Soviet of the USSR on Making Amendments and Supplements to Certain USSR Legal Acts of 28 October 1988 and were accessible and formulated with sufficient precision. 34. The applicant submitted that the USSR Law of 28 October 1988 was not applicable in Armenia at the material time and therefore the interference was not prescribed by law.", "35. The Court recalls that an identical complaint was examined in the case of Mkrtchyan v. Armenia where the Court found that Article 180.1 of the CAO was not formulated with such precision as to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions, since there was no legal act applicable in Armenia which contained the “prescribed rules” referred to in that provision. The USSR Law of 28 October 1988 was no longer applicable and a new law on assemblies and rallies was adopted only on 28 April 2004. The Court concluded that the interference was not prescribed by law (see Mkrtchyan, cited above, § 43). 36.", "The Court notes that the interference in the present case similarly took place before the enactment of a new law on assemblies and rallies. It therefore does not see any reasons to depart from its finding reached in the case of Mkrtchyan. It follows that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law. 37. Having reached this conclusion, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in paragraph 2 of Article 11 have been complied with.", "38. Accordingly, there has been a violation of Article 11 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE DECISION OF 2 MARCH 2003 39. The applicant complained that the Criminal and Military Court of Appeal failed to adopt a reasoned decision.", "He invoked 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 ...” Admissibility 40. The Court points out at the outset that Article 6 of the Convention applies to proceedings where a person is charged with a criminal offence until that charge is finally determined. It further reiterates that Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings, after the reopening has been granted, can be regarded as concerning the determination of a criminal charge (see Vanyan v. Russia, no. 53203/99, § 56, 15 December 2005).", "The Court does not, however, consider it necessary to determine this issue in the present case, since the applicant’s complaint under Article 6 about the proceedings before the Criminal and Military Court of Appeal is, in any event, inadmissible for the following reasons. 41. The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the court and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments.", "That is why the question of whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, among other authorities, Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303-B). 42. In the present case, the applicant was convicted under Article 180.1 of the CAO for his participation in an unauthorised demonstration and street march. This reason was stated in the Court of Appeal’s decision.", "In such circumstances, even if this decision was not detailed, it cannot be said that the Court of Appeal failed to indicate the reasons for the applicant’s conviction. 43. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION AS REGARDS THE DECISION OF 2 MARCH 2003 44.", "The applicant alleged discrimination on political grounds also in connection with the decision of the Court of Appeal of 2 March 2003. He invoked Article 14 of the Convention which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Admissibility 45. The Court notes that all the materials in its possession indicate that the applicant was penalised for his participation in an unauthorised demonstration. There is nothing in the case file to suggest that he was subjected to a penalty because of his political opinion. 46.", "The Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. ALLEGED VIOLATION OF THE CONVENTION AND PROTOCOL NO. 1 TO THE CONVENTION AS REGARDS THE DECISION OF 21 MAY 2003 47. Lastly, the applicant also raised all the above complaints in connection with the decision of 21 May 2003. The Court notes, however, that the applicant lodged this part of the application only on 3 December 2003 (see paragraph 15 above).", "48. It follows that this part of the application was similarly lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 50. The applicant claimed EUR 20,000 in respect of non-pecuniary damage. 51. The Government claimed that a finding of a violation of the Convention should be sufficient compensation for any non-pecuniary damage allegedly suffered by the applicant. In any event, the amount claimed was excessive.", "52. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of being unlawfully sanctioned for his participation in a demonstration and a march. Ruling on an equitable basis, it awards him EUR 1,000 in respect of non-pecuniary damage. B. Costs and expenses 53.", "The applicant also claimed 5,850 United States dollars (USD) (approximately EUR 4,916) and 6,332.50 pounds sterling (GBP) (approximately EUR 9,312) for the costs and expenses incurred before the Court. These claims comprised: (a) USD 5,850 for the fees of his two domestic representatives (totals of 25 and 21 hours at USD 150 and 100 per hour respectively); (b) GBP 6,237.50 for the fees of his three United Kingdom-based lawyers, including two KHRP lawyers and one barrister (totals of about 15 and 40 hours at GBP 150 and 100 per hour respectively); and (c) GBP 95 for administrative costs incurred by the KHRP. 54. The Government submitted that these claims were not duly substantiated with documentary proof, since the applicant had failed to produce any contract certifying that there was an agreement with the lawyers to provide legal services at the alleged rate. Furthermore, the applicant had used the services of an excessive number of lawyers, despite the fact that the case was not so complex as to justify such a need.", "Finally, the rates allegedly charged by the domestic representatives were excessive. 55. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court considers that not all the legal costs claimed were necessarily and reasonably incurred, including some duplication in the work carried out by the foreign and the domestic representatives, as set out in the relevant time sheets. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy [GC], no.", "33202/96, § 27, ECHR 2000‑I). The Court notes that only a violation of Article 11 was found in the present case while the entirety of the written pleadings, including the initial application and the subsequent observations, concerned numerous Articles of the Convention and Protocol No. 1. Therefore the claim cannot be allowed in full and a considerable reduction must be applied. Making its assessment on an equitable basis, the Court awards the applicant a total sum of EUR 2,000 for costs and expenses, to be paid in pounds sterling into his representatives’ bank account in the United Kingdom.", "C. Default interest 56. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 11 of the Convention in respect of the proceedings which terminated with the decision of the Criminal and Military Court of Appeal of 2 March 2003 admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 11 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into his 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF COKAN v. SLOVENIA (Application no. 76525/01) JUDGMENT STRASBOURG 29 June 2006 FINAL 29/09/2006 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 Cokan v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrC. Bîrsan,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, 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. 76525/01) 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 Štefan Cokan (“the applicant”), on 6 November 2001. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 16 September 2003 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 5. The applicant was born in 1946 and lives in Ponikva. 6. On 25 January 1996 the applicant was injured in an accident at work.", "The applicant’s employer had taken out insurance with the insurance company ZT. 7. On 4 November 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,304,324 tolars (approximately 9,600 euros) for the injuries sustained. At an undetermined time in 1998, the judge presiding the case was appointed to the Celje Higher Court and the case was transferred to a new judge. On 12 November 1997 and 19 January 1998, the applicant requested that a date be set for a hearing.", "Between 4 May 1998 and 24 May 2000, the applicant lodged four preliminary written submissions and/or adduced evidence. Of the six hearings held between 5 May 1998 and 30 May 2000, none was adjourned at the request of the applicant. During the proceedings, the court appointed three medical 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 13 July 2000.", "8. On 25 July 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 4 July 2001 the court dismissed both appeals. The judgment was served on the applicant on 29 august 2001.", "9. On 14 September 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 4 July 2002 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 10 September 2002. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 10. The applicant complained about the excessive length of the proceedings. 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...” 11. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 12.", "The Government pleaded non-exhaustion of domestic remedies. 13. The applicant contested that argument, claiming that the remedies available were not effective. 14. The Court notes that the present application is similar to the cases of Belinger and Lukenda (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. 15. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.", "16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Article 6 § 1 17. The period to be taken into consideration began on 4 November 1996, the day the applicant instituted proceedings with the Celje District Court, and ended on 10 September 2002, the day the Supreme Court decision was served on the applicant. It therefore lasted over five years and ten months for three levels of jurisdiction. 18.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 19. 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, in particular before the first-instance court, was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 20. 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.", "21. 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 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 23. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 24. The Government contested the claim. 25.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 1,000 under that head. B. Costs and expenses 26. The applicant also claimed approximately EUR 1,230 for the costs and expenses incurred before the Court.", "27. The Government argued that the claim was too high. 28. 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 29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 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 29 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerJohn HediganRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MATWIEJCZUK v. POLAND (Application no. 37641/97) JUDGMENT STRASBOURG 2 December 2003 FINAL 02/03/2004 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 Matwiejczuk v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,MrsV.", "Strážnická,MrM. Fischbach,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki,MrsE.", "Fura-Sandström, judges, and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37641/97) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Tomasz Matwiejczuk (“the applicant”), on 7 November 1996. 2. The applicant, who had been granted legal aid, was represented by Mr W. Hermeliński, a lawyer practising in Warsaw.", "The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki. 3. The applicant alleged, in particular, that the facts of his case disclosed a violation of Articles 5 § 3, 6 § 1, 8 and 34 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No.", "11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1) . This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 7. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "8. By a decision of 4 June 2002, the Court declared the application partly admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1966 and is currently detained in the Radom prison.", "A. The applicant's detention on remand and trial 1. The arrest and detention on remand 10. In July 1996 the applicant was released from prison. On 11 September 1996 the police arrested him.", "The police suspected that on 10 September 1996 the applicant had committed an armed robbery and rape. At the same time, the police enforced a warrant for the arrest of the applicant issued on 28 August 1996 by the Pruszków District Court (Sąd Rejonowy) in the criminal proceedings against the applicant pending before that court. 11. On 13 September 1996 the Warsaw District Court remanded the applicant in custody on charges of armed robbery and sexual assault. The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested.", "12. On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against the District Court's decision to remand him in custody. The Regional Court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant's accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.", "13. On 10 December 1996 the Warsaw Regional Court extended the applicant's detention until 11 March 1997. 14. The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt.", "15. Between 20 January and 27 February 1997 the prosecution service decided that it would seek evidence from five expert witnesses and requested the applicant's medical file from a psychiatric hospital in which he had been treated. 16. On 4 March 1997 the Warsaw Regional Court appointed legal aid counsel to defend the applicant. 17.", "On 5 March 1997 the prosecution service received two expert opinions. On 7 March 1997 the District Prosecutor interviewed the victim of rape. 18. On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure.", "Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. The applicant appealed against that decision to the Supreme Court (Sąd Najwyższy). 19. Between 8 and 18 April 1997 the prosecution service received two expert opinions and decided to request DNA tests.", "20. On 24 April 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 10 March 1997. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt. 21. On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant's letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights.", "The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence. 22. On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant's guilt and the nature of charges against the applicant. It also considered that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.", "Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding. The applicant appealed against that decision. 23. On 16 May 1997 the prosecution service received the results of DNA tests. On 18 June 1997 the District Prosecutor interviewed the applicant and decided to modify charges against him.", "2. The bill of indictment 24. On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant. 25. On 7 July 1997 the Warsaw Regional Court extended the applicant's pre‑trial detention until 11 September 1998.", "26. On 9 July 1997 the trial court dismissed the applicant's challenge to the prosecutor who worked on his case. During the two following days the applicant was consulting the case-file. 27. On 10 July 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 9 May 1997.", "The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court's decision of 7 July 1997 extending the applicant's detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal's decision of 9 May 1997 and therefore constituted “an inappropriate practice”. 28. On 15 July 1997 the applicant's counsel appealed to the Warsaw Court of Appeal against the Regional Court's decision of 7 July 1997. On 25 July 1997 the appellate court rejected the appeal.", "It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant. 29. In the meantime, on 22 July 1997 the applicant lodged with the Warsaw Court of Appeal an appeal against the Regional Court's decision of 7 July 1997. On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant's appeal. The court relied on a medical opinion confirming that the applicant's medical problems could be treated in prison.", "30. In the meantime, on 20 August 1997 the applicant made an application for release. On 16 October 1997 the Warsaw Regional Court dismissed the application. It relied on a medical opinion. The applicant's appeal against that decision was rejected because it was not provided by law.", "31. On 24 March 1998 the Warsaw Regional Court was informed that the applicant had tried to smuggle a message to his accomplices. However, it was seized by the prison service and included in the court's case-file. 32. Between 25 November 1997 and 19 May 1998 the applicant on six occasions attended hearings before the Pruszków District Court in the criminal proceedings against him pending before that court.", "33. On 19 June 1998 the Warsaw Regional Court decided to stop the applicant's letter in which he made threats against one of the prisoners. The letter was included in the court's case-file. 34. On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant's pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years.", "The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant's case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998. 3. The first hearing 35. On 22 July 1998 the first hearing was held before the Warsaw Regional Court.", "The applicant and his co-accused asked that the hearing be adjourned as they had not been able to prepare their defence. The court allowed the request and adjourned the hearing until 3 November 1998. The court took into account heavy workload of judges, the holiday period and the fact that an anonymous witness could not be heard before that date. 36. On 28 August 1998 the Supreme Court allowed the Regional Court's request of 22 July 1998 and extended the applicant's pre-trial detention until 15 December 1998.", "It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant's case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant's detention under Article 222 § 4 of the Code of Criminal Procedure. 37. On 3 November 1998 the Warsaw Regional Court held the second hearing in the applicant's case.", "It took evidence from the victim of sexual assault. The court also made arrangements for taking evidence from an anonymous witness. 38. On 17 November 1998 evidence was taken from an anonymous witness. 39.", "On 19 November 1998 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault. 40. On 23 November 1998 the hearing was adjourned because the prosecution service and witnesses had not been informed about it. 41.", "The applicant made a further application for release at the hearing held on 1 December 1998 but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed that it had not finished taking evidence from certain witnesses. The applicant's appeal against that decision was rejected because it was not provided by law. 42.", "On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison. 43.", "On 17 December 1998 a hearing took place before the Warsaw Regional Court. 44. On 22 December 1998 evidence was taken from an anonymous witness. 45. The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court.", "It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage. 46. On 7 January 1999 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The applicant's appeal against that decision was rejected because it was not provided by law. 47.", "On 12 January 1999 the police informed the Warsaw Regional Court that one of the witnesses for the defence was dead. 48. On 21 January 1999 a hearing was held before the Warsaw Regional Court. It was adjourned until 3 February 1999 because one of the judges was ill. 49. On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention.", "On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention. 50.", "The hearing held on 3 February 1999 was adjourned because the applicant requested that evidence be taken from a new witness. 51. The next hearing was held on 19 February 1999. 52. During the hearing held on 15 March 1999 the applicant applied for release from detention but the court dismissed it.", "The applicant's appeal against that decision was rejected because it was not provided by law. 53. On 25 March 1999 the Supreme Court prolonged the applicant's detention until 31 May 1999. 54. During the hearing held on 7 April 1999 the Warsaw Regional Court dismissed the applicant's request that the case be remitted to the prosecution service for further investigation.", "55. The last hearing before the trial court was held on 28 April 1999. 4. The conviction 56. On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years' imprisonment.", "The applicant appealed against that judgment to the Warsaw Court of Appeal. 57. On 9 November 1999 the Warsaw Court of Appeal held a hearing. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms. B.", "The monitoring of the applicant's correspondence 58. The Court's case-file contains the following documents pointing to the monitoring of the applicant's correspondence: (i) the applicant's letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a hand‑written note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral); (ii) the applicant's letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a hand‑written note: “Censored” and an illegible signature; (iii) the applicant's letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature; (iv) an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a hand‑written note: “Censored” and an illegible signature; (v) a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature; (vi) an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature. II. RELEVANT DOMESTIC LAW A.", "The pre-trial detention 1. The Code of Criminal Procedure 1969 59. The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 60. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures.", "Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” Article 225 of the Code provided: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant: “Detention on remand may be imposed if: 1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or 2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or 3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or 4. the accused was charged with the commission of an act which constituted significant danger to society.” Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when: 1. it may seriously jeopardise the life or health of the accused; or 2. it would entail excessively burdensome effects for the accused or his family.” 61. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage. Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences.", "In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. 2. The Code of Criminal Procedure 1997 62.", "On 1 September 1998 the Code of Criminal Procedure 1997 replaced the 1969 Code. Article 263 of the new Code, insofar as relevant, provides: “§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months. § 2. If the special circumstances of a case made it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by: the trial court – for up to 6 months, the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.", "§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years. § 4. Detention on remand may be prolonged for a fixed period exceeding periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”. B.", "Monitoring of correspondence 1. Provisions in force before 1 September 1998 63. Article 89 § 2 of the Code of Execution of Criminal Sentences 1969 provided, in so far as relevant, as follows: “(...) [the detainee's] correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” 64. Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provided, in so far as relevant, as follows: “(1) A detainee has a right to correspond. (2) Detainee's correspondence shall be censored by the organ at whose disposal he remains (...).", "(3) Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).” 2. Provisions in force since 1 September 1998 (a) The Code of Execution of Criminal Sentences 1997 65. On 1 September 1998 the Code of Execution of Criminal Sentences 1997 replaced the 1969 Code. The relevant part of Article 103 § 1 of the 1997 Code provides as follows: “Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” Article 105 § 4 provides: “The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [and] shall inform about it the penitentiary judge and the convict.” Article 209 “The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.” Article 214 § 1 “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison.", "No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” Article 217 § 1 reads, in so far as relevant, as follows: “(...) detainee's correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” Article 242 § 5 of reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” (b) The Rules of Detention on Remand 1998 66. On 1 September 1998 the Rules of Detention on Remand 1998 entered into force. § 36 of the Rules provides: “The detainee's correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.” § 37 provides: “1. If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences]. 2.", "The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education. 3. The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording. 4. The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content, which shall take place in the presence of a detainee.” § 38 provides: “1.", "Detainee's correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences]. 2. Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file. 3. The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure.", "4. For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee's personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 67. The applicant complained that the length of his pre-trial detention was in breach of Article 5 § 3, which in so far as relevant provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 68.", "The Government contended that the facts of the case disclosed no breach of that provision. A. Period to be taken into consideration 69. The applicant did not comment on the period to be taken into consideration. The Government submitted that the relevant period began on 13 September 1996 and ended on 4 May 1999.", "70. The Court agrees that the end of the relevant period fell on 4 May 1999, as under its case-law the end of period referred to in Article 5 § 3 is the day on which the charge is determined, even if only by a court of first instance (see the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, § 9). However, it considers that the period began on 11 September 1996, when the applicant was taken into custody (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 145, ECHR 2000-IV).", "71. The period to be taken into consideration therefore lasted two years, seven months and twenty-two days. B. The reasonableness of the length of detention 1. Arguments before the Court 72.", "The applicant agreed that his pre-trial detention was initially justified by reasonable suspicion that he had committed the offence with which he was charged. However, with the lapse of time it could not justify his prolonged detention. The courts relied on the gravity of the charges against the applicant and the evidence of his guilt to prolong his detention. However, these grounds were not “relevant” and “sufficient”. He pointed out that the investigation in his case ended on 27 June 1997 when the prosecution service lodged with the trial court a bill of indictment against him.", "In spite of this, the case lay dormant for over one year, i.e. until the date of the first hearing on 22 July 1998. 73. The Government submitted that the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds.", "One of those grounds was the fact that the applicant went into hiding and therefore obstructed criminal proceedings against him pending before the Pruszków District Court. Moreover, he was of no fixed abode and could try to collude with his accomplices who were not arrested because the police could not find them. The charges laid against him carried out a severe penalty. 74. Furthermore, the Government pointed out that “immediately after the commission of the alleged crime there had been an attempt to contact the victim of rape”.", "What is more, the applicant tried to smuggle a message out of the prison and tried to send a letter containing threats against one of the prisoners. Finally, the Government observed that domestic courts on twenty‑three occasions issued decisions concerning the applicant's pre‑trial detention and the Supreme Court four times prolonged the detention. 2. The Court's assessment (a) Principles established under the Court's case-law 75. Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto.", "Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30). 76. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time.", "To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention. 77. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.", "Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see the Labita judgment cited above, § 153). (b) Application of the principles to the circumstances of the present case 78. The Court firstly notes that it appears that the parties agree that the applicants pre-trial detention was initially justified by reasonable suspicion that he had committed the offence with which he was charged. It sees no reason to hold otherwise. Moreover, the Court considers that, in the particular circumstances of the instant case, the grounds given by judicial authorities satisfied the requirement of being “relevant” and “sufficient”.", "It follows that the Court must ascertain whether the competent national authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant (see paragraph 77 above). 79. In this connection, the Court notes that no hearing took place during a period of almost thirteen months between 27 June 1997, when the bill of indictment was lodged with the trial court and 22 July 1998 (see paragraphs 24-35 above). The Court is not convinced that such a long period without a hearing can be explained by a fact that the applicant on six occasions appeared before the Pruszków District Court in separate criminal proceedings against him. In addition, two days needed by the applicant for consulting a case-file and the necessity to consider his challenge to a prosecutor and applications for release do not justify such a delay.", "It follows that the domestic authorities did not display “special diligence” in the conduct of the proceedings. There has therefore been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 80. The applicant also complained that the criminal proceedings in his case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 81.", "The Government contended that the facts of the case disclosed no breach of that provision. A. Period to be taken into consideration 82. The Court notes that the period to be taken into consideration began on 11 September1996, when the applicant was taken into custody and ended on 9 November 1999, when the Warsaw Court of Appeal dismissed his appeal (see paragraphs 10 and 57 above). Accordingly, the proceedings lasted almost three years and two months.", "B. Reasonableness of the length of the proceedings 1. Arguments before the Court 83. The applicant submitted that the case was not complex and that he did not contribute to the delay. He also pointed to the period of inactivity of the trial court between 27 June 1997 and 22 July 1998. Furthermore, the applicant contested the Government's explanation that the inactivity resulted from the fact that the applicant on six occasions was brought before the Pruszków District Court.", "In this connection, he stated that such an explanation was “unacceptable because of a simple reason: the hearings took only six days as the whole year consists of 365 days”. 84. The Government submitted that the proceedings were concluded within reasonable time. They averred that the length of the proceedings could be explained by the complexity of the case, difficulties in taking evidence from witnesses and the conduct of the applicant. In this respect, the Government pointed out that the trial court could not take evidence from the anonymous witness before 3 November 1998.", "Another witness could not be found by the police until 12 January 1999, when his dead body was discovered. Furthermore, the Government observed that the applicant on three occasions filed appeals against decisions dismissing his applications for release, despite the fact that such a remedy was not provided by law. Consequently, the case-file had to be transmitted between different courts. 85. Finally, with respect to the period of inactivity between 27 June 1997 and 22 July 1998, the Government pointed out that during that time the applicant on six occasions was brought before the Pruszków District Court, which conducted separate criminal proceedings against him.", "2. The Court's assessment 86. The Court recalls its finding that domestic authorities did not display “special diligence” in the conduct of the criminal proceedings against the applicant (see paragraph 79 above). In this connection, it notes that although the overall length of the proceedings may not seem excessive, the period of eighteen months without a hearing in a criminal case shows the lack of diligence required in such cases. It therefore considers that the length of the proceedings assessed from the angle of the “reasonable time” requirement under Article 6 § 1 did not meet that requirement.", "There has therefore been a violation of Article 6 § 1. III. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE CONVENTION A. The monitoring of correspondence 87. The applicant further complained about a breach of Article 8 (right to respect to correspondence) and Article 34 (effective exercise of the right to file individual applications).", "Article 8 of the Convention provides, as relevant: “1. Everyone has the right to respect for (...) his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 88. The Government contended that the facts of the case disclosed no breach of those provisions.", "1. Arguments before the Court (a) Monitoring of the correspondence before 1 September 1998 89. The applicant submitted that the prosecutor interfered with his correspondence. He referred to the Niedbała judgment, where the Court found a violation of Article 8. 90.", "The Government admitted that the prosecutor “had a margin of discretion in deciding whether to censor the correspondence” and “exercised its discretion with reference to a few letters of the applicant”. At the same time, they pointed out that no interference with the text of the letters took place. As the letters of 5 March, 16 May, 3 September 1997 and an undated letter received on 19 March 1997 were only marked with an illegible signature, there was no sufficient evidence of their censorship. The Government also averred that “neither could it be said that a stamp indicating the name of the Public Prosecutor and its illegible signature on the envelope of a letter addressed to the European Commission is a sufficient proof of its censorship”. 91.", "The Government reserved their opinion on the alleged breach of Article 8 on account of the censorship of the applicant's correspondence. (b) Monitoring of the correspondence since 1 September 1998 92. The applicant further submitted that the monitoring of the correspondence sent to him by the Court on 23 February 1999 was in breach of Article 8 of the Convention. He pointed out that under Article 103 § 1 of the Code of Execution of Criminal Sentences 1997, which entered into force on 1 September 1998, the prisoner's correspondence should have been delivered to him without delay and was not subject to censorship. Furthermore, contrary to § 37(4) of the Rules of Detention on Remand 1998 the letter of 23 February 1999 was not opened in the applicant's presence.", "93. With respect to the letter of 23 February 1999, the Government averred that the applicant had not submitted “any evidence of the interference into its content”. The fact that an envelope bore a stamp “Censored” did not prove that the correspondence was censored. 2. The Court's assessment (a) Monitoring of the correspondence before 1 September 1998 94.", "The Court considers on the evidence before it that the domestic authorities monitored the correspondence listed in points (i), (iv) and (v) in paragraph 58 above. Therefore there was an “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of the applicant's right to respect for his correspondence. 95. The Court notes that in the judgment of 4 July 2000 in the case of Niedbała v. Poland it found that Polish law concerning the control of correspondence in force before 1 September 1998 did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on public authorities (see Niedbała v. Poland, no. 27915/95, §§ 81‑82, 4 July 2000).", "96. The Court sees no reason to distinguish the present case from the Niedbała case. It follows that the monitoring of the applicant's correspondence was not “in accordance with the law”. There has therefore been a breach of Article 8 of the Convention. (b) Monitoring of the correspondence since 1 September 1998 (i) Principles established under the Court's case-law 97.", "An “interference by a public authority” with the exercise of the right to respect for his correspondence will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve them (see, among other authorities, the Labita judgment cited above, § 179). 98. The expression “in accordance with the law” requires that the interference in question must have some basis in domestic law. A law must be adequately accessible: the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case. Moreover, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.", "Finally, a law which confers discretion must indicate the scope of that discretion. However, the Court has recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity (see, among other authorities, Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, p. 33, §§ 86-88). (ii) Application of the principles to the circumstances of the present case (α) Existence of an interference 99. The Court notes that an envelope mailed to the applicant on 23 February 1999 bears a stamp: “Censored on, signature” (Ocenzurowano dn.", "podpis), a hand-written date: 5 March and an illegible signature (see paragraph 58 above). It considers that even if there is no separate stamp on the letter as such, there is, in the particular circumstances of the case, a reasonable likelihood that the envelope was opened by the domestic authorities. In coming to such a conclusion, the Court takes into account that, in the Polish language, the word ocenzurowano means that a competent authority, after having controlled the content of a particular communication, decides to allow its delivery or expedition. Consequently, as long as the domestic authorities continue the practice of marking the detainees' letters with a simple ocenzurowano stamp, the Court would have no alternative but to presume that those letters have been opened and their contents read. It is the matter for the domestic authorities, to elaborate a procedure of giving clearance for delivery and expedition of letters to and from the European Court of Human Rights in a way clearly indicating that neither the relevant envelopes have been opened nor the letters have been read.", "The Court would also point out that the risk of such a stamp being forged by prisoners in order to fabricate evidence in the Strasbourg proceedings is so negligible that it must be discounted. Had domestic authorities been concerned about the risk of fabrication, they could have avoided it by adding to the register of incoming mail information about its condition (see, mutatis mutandis, Campbell v. the United Kingdom, judgment of 28 February 1992, Series A no. 233, p. 22, § 62; Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1016, § 48). 100. It follows that the monitoring of the Court's correspondence addressed to the applicant constituted an “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of the applicant's right to respect for his correspondence.", "(β) Whether the interference was “in accordance with the law” 101. The Court notes that the impugned interference was based on the provisions of the Code of Execution of Criminal Sentences 1997 and the Rules of Detention on Remand 1998 (see paragraphs 65-66 above). It considers that these provisions were adequately accessible. Furthermore, bearing in mind impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity, the Court accepts that the provisions were formulated with sufficient precision and indicated the scope of discretion conferred. 102.", "The Court further notes that § 37 (4) of the Rules of Detention on Remand 1998 requires that the inspection of detainee's correspondence take place in his presence (see paragraph 66 above). In the present case the Government failed to present any evidence rebutting the applicant's claim that the opening of the Court's letter of 23 February 1999 had not taken place in his presence. It follows that the opening of the letter was not “in accordance with the law”. There has therefore been a breach of Article 8 of the Convention. 103.", "As the Court has found that there has been a breach of Article 8 on account of monitoring of the applicant's correspondence, it does not consider it necessary to examine the applicant's assertion that there was also an interference with the exercise of his right of individual petition pursuant to Article 34 of the Convention (see, mutatis mutandis, Foxley v the United Kingdom, no. 33274/96, § 47, 20 June 2000). B. The delaying of correspondence 104. The applicant further complained under Articles 8 and 34 about the delaying of his correspondence.", "105. The Government disagreed with the applicant. They submitted details of the movement of the applicant's correspondence based on prison records. The Government pointed out that the records showed that the applicant's letters had never been delayed by domestic authorities. 106.", "The Court considers that the evidence before it shows that the applicant's correspondence was not delayed. It follows that there has been no violation of Articles 8 and 34 on that account. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 107. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 108. The applicant claimed 50,000 Polish zlotys for non‑pecuniary damage. 109. The Government averred that the applicant's claim was inordinate. They asked the Court to rule that a finding of a violation of the Convention constituted in itself sufficient just satisfaction.", "Alternatively, the Government requested that the award be made on the basis of case-law in similar cases with reference to domestic economic conditions. 110. The Court considers that, in the circumstances of this particular case and deciding on an equitable basis, the applicant should be awarded the sum of 2,000 euros (EUR) for non-pecuniary damage. B. Costs and expenses 111.", "The applicant also claimed EUR 2,000 by way of legal costs and expenses incurred in the preparation and defence of his case before the Court. This included 10 hours' work at an hourly rate of EUR 200. 112. The Government asked the Court to award the costs and expenses only in so far as they have been actually and necessarily incurred and were reasonable as to quantum. 113.", "The Court notes that it was not considered necessary to invite the parties to an oral hearing in Strasbourg. Having regard to the particular circumstances of the present case, it awards the applicant EUR 1,500 together with any value‑added tax that may be chargeable, less EUR 790 already paid by way of legal aid. C. Default interest 114. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 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 8 of the Convention as regards the monitoring of the applicant's correspondence; 4. Holds that it is unnecessary to examine the applicant's complaint that the monitoring of his correspondence constituted an alleged interference with the exercise of his right of individual petition provided in Article 34 of the Convention; 5. Holds that there has been no violation of Articles 8 and 34 of the Convention as regards the alleged delaying of the applicant's correspondence; 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 2,000 (two thousand euros) in respect of non-pecuniary damage, and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, less EUR 790 (seven hundred and ninety euros), 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 2 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleMatti PellonpääRegistrarPresident" ]

[ "FIRST SECTION CASE OF BAUMANN v. AUSTRIA (Application no. 76809/01) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 9 June 2005 STRASBOURG 7 October 2004 FINAL 07/01/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Baumann v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrA. Kovler,MrV. Zagrebelsky,MrsE. Steiner,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 16 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 76809/01) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mrs Ulrike Baumann (“the applicant”), on 30 October 2001. 2. The applicant was represented by Mr W. Strigl, a lawyer practising in Vienna.", "The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. On 10 February 2003 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4.", "The applicant was born in 1950 and lives in Vienna. Proceedings concerning the division of the matrimonial property and savings (the first round) 5. On 4 December 1987 the applicant’s former husband A., and on 15 December 1987 the applicant herself, requested the division of the matrimonial property and savings (Aufteilung des ehelichen Gebrauchsvermögens und der ehelichen Ersparnisse) following their divorce. 6. On 13 March 1989 the Döbling District Court (Bezirksgericht), after having held seven hearings, divided the matrimonial property.", "It decided, inter alia, to transfer A.’s title concerning the land and the house to the applicant, who was ordered to pay to A. the sum of 2,876,000 Austrian Schilling (ATS) by way of compensation. The applicant and A. appealed against this decision. 7. On 31 August 1989 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) allowed the appeals due to procedural deficiencies and remitted the case to the District Court. Both parties filed an appeal on points of law (Revisionsrekurs) against this decision.", "8. On 29 January 1991 the Supreme Court dismissed these appeals. The second round of the proceedings 9. Subsequently, due to the District Court’s rule concerning the distribution of cases (Geschäftsverteilung), another judge was assigned who held three more hearings, heard additional witnesses in order to assess the applicant’s contribution to the matrimonial property and obtained an expert opinion concerning the value of the property at issue. 10.", "On 24 July 1991 the District Court divided the matrimonial property. It decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay the applicant the sum of ATS 3,358,200 by way of compensation. Both parties appealed. 11. On 18 March 1992 the Regional Civil Court allowed the appeals and remitted the case to the District Court.", "It found that the District Court had failed to consider the applicant’s observations on the expert opinion. The third round of the proceedings 12. On 23 October 1992 the District Court, after having held two hearings on 19 May and 22 July 1992, took a partial decision and decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay to the applicant the sum of ATS 4,000,000 by way of compensation. As regards the applicant’s additional claim for compensation for her contribution to A.’s business, it decided to suspend the proceedings as tax assessment proceedings against A. were pending. The outcome of the tax assessment had to be taken into account in the instant proceedings.", "The applicant and A. again appealed. 13. On 10 March 1993 the Regional Civil Court allowed the appeals and remitted the case to the District Court. It found that the District Court had failed to calculate properly the value of the house. The fourth round of the proceedings 14.", "Subsequently, the case was assigned to another judge due to the court’s rule concerning the distribution of cases. On 16 July, 13 September, 14 October, 3 and 17 November 1993, A. requested extensions of time-limits for the submission of documents or comments, respectively. 15. On 27 September 1993 and 19 January 1994 the District Court held another two hearings. 16.", "On 21 July 1994 the applicant filed a request for the acceleration of the proceedings under Section 91 of the Austrian Court Act (Fristsetzungsantrag). In particular she requested that a time limit be set for the District Court to reach its decision. 17. On 12 August 1994 the District Court took a partial decision and decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay to the applicant the sum of ATS 4,300,000 by way of compensation. As regards the applicant’s additional claim, the court again decided to suspend the proceedings until the termination of the tax assessment proceedings.", "Both parties appealed. 18. On 13 February 1995 the applicant filed a further request for an acceleration of the proceedings under Section 91 of the Court Act. In particular, she requested that a time limit be set for the Regional Court to determine her appeal against the decision of 12 August 1994. 19.", "On 22 February 1995 the Regional Civil Court partly confirmed the decision of 12 August 1994. It allowed the applicant’s appeal as regards the interest to be paid on the award of compensation, but dismissed the remainder as being otherwise unfounded or out of time. A request by A. for his reinstatement in the proceedings was unsuccessful. 20. On 20 September 1995 the Supreme Court rejected A.’s appeal on points of law.", "Thereby, the proceedings were terminated concerning the transfer of the land and the house and the related compensation payment. As regards possible further compensation to the applicant for her contribution to A.’s business, the proceedings remained pending until the termination of the tax assessment. The applicant’s claim for further compensation 21. On 11 October 1995 the applicant asked the court to obtain information on the current state of the tax assessment proceedings. This the court did and the applicant commented on it.", "22. On 3 June 1996 the applicant asked the court to take a final decision. 23. On 4 July 1996 the District Court replied that the tax assessment proceedings were still pending. 24.", "On 30 July 1996 the applicant filed a request to continue the suspended proceedings. 25. On 28 November 1996 the District Court dismissed the request as the tax assessment proceedings were still pending. 26. On 13 October 1997 the District Court held a hearing and decided to continue the suspension of the proceedings.", "27. On 21 April 1998 the District Court dismissed a further request by the applicant to continue the proceedings. 28. In August 1998 the Vienna Tax Office (Finanzamt) determined A.’s tax liability. This decision became final.", "29. On 1 September 1998 the applicant requested the resumption of the suspended proceedings and submitted that, meanwhile, the tax assessment proceedings against A. had been terminated. 30. On 3 November 1998 A. requested the postponement of a hearing until after 7 January 1999, on the ground that his counsel was unable to attend. 31.", "On 12 January and 21 October 1999 the District Court held two hearings. 32. On 15 May 2000 the District Court partly allowed the applicant’s additional claims and awarded her ATS 300,000. It found that each party had to bear its own costs. 33.", "On 13 June 2000 the applicant filed an appeal. She submitted that the court should have awarded her ATS 550,000 and that the costs decision was unreasonable. 34. On 8 November 2000 the Regional Civil Court partly allowed the applicant’s appeal and awarded her ATS 550,000, but dismissed the complaint against the costs order. Further, it ordered A. to pay the applicant’s legal costs in the appeal proceedings.", "It found that, when taking a decision about such costs under Section 234 of the Non-Contentious Proceedings Act (Außerstreitgesetz), it had to take into account, inter alia, the outcome of the proceedings, the financial standing of the parties and their conduct in the proceedings. Given that neither party could be regarded as being predominantly successful in the case, that both parties had about the same income and that neither of them had made any marked contribution to the acceleration of the proceedings, the decision that each party bear its own legal costs appeared equitable. A. appealed on points of law against this decision. 35. On 2 May 2001 the Regional Civil Court refused leave to appeal on points of law.", "This decision was served on the applicant’s counsel on 22 May 2001. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS 36. 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...” 37. The Government contested that argument.", "38. The period to be taken into consideration began on 15 December 1987, when the applicant filed her request for the division of the matrimonial property and savings following her divorce, and ended on 22 May 2001, when the Regional Court’s decision was served on the applicant’s counsel. It thus lasted thirteen years and five months for three levels of jurisdiction, with re-hearings. A. Admissibility 39. The applicant referred to her former husband’s application, which concerned the length of the same proceedings, albeit at an earlier stage, and in which a friendly settlement was concluded after it had been declared admissible (see Baumann v. Austria, no.", "25818/94, the Commission’s decision of 10 September 1997). 40. The Court finds that the applicant’s complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 41. The Government submitted that the proceedings were complex as two proceedings were joined; the parties made repeated requests for the taking of evidence and several expert opinions had to be obtained. Moreover, the decision on the division of the matrimonial property and savings required the prior clarification of existing tax liabilities by the fiscal authorities which lasted seven years. Delays were mainly attributable to the parties, particularly because of their numerous requests to and lack of co‑operation with the District Court, whereas the Austrian courts conducted the proceedings speedily and constantly worked on the case.", "Responsibility for the delay which occurred after the partial decision of 12 August 1994, when the courts had to wait for the final determination of the fiscal debts of the applicant’s former husband A., had to be born by the latter, who apparently tried to conceal his income vis-à-vis the tax authorities for quite some time. 42. The applicant contested this view and submitted that the proceedings were not complex. They only involved the determination of the value of the house, for which expert opinions had to be obtained as her former husband had underestimated its value. The applicant, as the claimant in the proceedings, was interested in their expeditious conduct and only made use of the legal remedies available in order to obtain her rights.", "Delays were mainly attributable to the domestic courts which conducted the proceedings with unusual slowness. In particular, the judge dealing with the case was replaced several times. Even the appeal proceedings took an exceptionally long time, necessitating a request under Section 91 of the Courts Act for an acceleration of the proceedings. The case was remitted to the first instance court for the taking of further evidence about five times. 43.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the 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). 44. The Court shares the applicant’s view that the financial nature of the claim did not, of itself, make the proceedings especially complex. It notes that the applicant did not cause significant delays, but requested on several occasions that the proceedings be accelerated or resumed.", "Some delays are attributable to the applicant’s former husband who requested extensions of time-limits or the postponement of hearings. Both parties made appeals against certain decisions, which were mostly successful. Thus, the case was remitted three times to the first instance court for the taking of further evidence. Major delays occurred due to the suspension of the proceedings pending the outcome of the related tax assessment case. 45.", "The Court reiterates in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see, among other authorities, Pélissier and Sassi v. France, judgment of 25 March 1999, Reports of Judgments and Decisions 1999-II, p. 301, § 74). Consequently, it takes the view that an overall period of thirteen years and five months could not, in itself, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention. 46. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE COSTS ORDER AND THE LACK OF A FURTHER APPEAL 47. The applicant further complained that the decision that each party had to bear its own costs was unreasonable and that there was no further remedy against the Regional Court’s dismissal of her appeal against the costs order. A. Admissibility 48. The Court reiterates that Article 6 § 1 is applicable to costs proceedings, provided that the legal costs which form the subject matter of the proceedings were incurred during the resolution of a dispute which involved the determination of civil rights and obligations (see Beer v. Austria, no. 30428/96, § 12, 6 February 2001).", "Since the costs order in the present case was clearly related to the principal civil claim, Article 6 § 1 of the Convention was also applicable to the costs procedure. 49. As regards the alleged unreasonableness of the costs order, the Court considers that it is not for the Court to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no.", "235-B, pp. 32-33, § 32; Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34). 50. The Court finds that the legislative policy reflected in the Non-Contentious Proceedings Act, leaving the costs issue to the discretion of the domestic courts, which take account of the outcome of the proceedings, the financial standing of the parties and their conduct in the proceedings, appears neither arbitrary nor unreasonable (see mutatis mutandis, Fransson and Fransson v. Sweden (dec.), no.", "8719/02, 16 March 2004). Further, there is no indication that the procedures or decisions adopted by the domestic courts in the costs proceedings infringed the core fairness requirement of Article 6 § 1 of the Convention. 51. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 52.", "As regards the applicant’s complaint about the lack of a further remedy against the costs order of the appeal court, the Court reiterates that the right of appeal in civil cases does not feature among the rights and freedoms guaranteed by the Convention. No provision of the Convention, therefore, requires a State to grant persons under its jurisdiction an appeal to a Supreme Court acting as a third instance court (see Suslo v. Ukraine (dec.), no. 30605/02, 5 November 2002, with further references). It follows that this complaint must also 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 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 30,000 euros (EUR) in respect of non-pecuniary damage. 55.", "The Government submitted that the claim was excessive. 56. The Court finds that the applicant has sustained non-pecuniary damage which cannot be compensated by the finding of a violation. Assessing the claim on an equitable basis, it awards EUR 9,000 under this head. 57.", "In so far as the applicant may be understood to seek reimbursement of her legal costs incurred in the domestic proceedings under the head of pecuniary damage, no award can be made as the applicant has not specified her claim. Further, the Court cannot speculate what the outcome would have been if the applicant had obtained a final decision on her action within a reasonable time. The Court accordingly dismisses this aspect of her claim. B. Costs and expenses 58.", "The applicant also claimed reimbursement of EUR 97,000 for costs and expenses incurred before the domestic courts and EUR 13,081.11 for those incurred before the Court. The applicant did not submit any supporting documents. 59. The Government pointed out that only costs incurred in an attempt to redress the violation found could be reimbursed. Assessing the claim on the basis of the applicable law, only EUR 2,906.91 could possibly be claimed for the two applications under Section 91 of the Courts Act.", "The Government did not comment on the costs claim concerning the Convention proceedings. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of such costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court agrees with the Government as regards the amount to be reimbursed for the applications under Section 91 of the Austrian Courts Act. It accordingly awards the sum of EUR 2,906.91.", "However, the Court does not consider it necessary to determine whether the applicant’s costs related to her requests for the resumption of the proceedings meet this requirement as she has failed to specify them. Nevertheless, it cannot be excluded that the excessive duration of the proceedings increased the overall costs incurred (see Bouilly v. France, no. 38952/97, § 33, 7 December 1999). It therefore awards EUR 1,000 in this respect. 61.", "As to the costs in the Convention proceedings, the Court notes that the applicant, who was represented by counsel, did not have the benefit of legal aid. It considers it reasonable to award the applicant EUR 2,000 under this head. 62. In sum, the Court awards a total of EUR 5,906.91 for the applicant’s costs and expenses. C. Default interest 63.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, (i) EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage; (ii) EUR 5,906.91 (five thousand nine hundred and six euros and ninety-one cents) in respect of costs and expenses; (iii) 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 7 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF RAILEAN v. MOLDOVA (Application no. 23401/04) JUDGMENT STRASBOURG 5 January 2010 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 Railean v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "23401/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mihail Railean (“the applicant”), on 26 May 2004. 2. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant alleged, in particular, that the domestic authorities had failed to conduct an appropriate investigation into his son's death, contrary to their obligations under Article 2 of the Convention.", "4. The application was allocated to the Fourth Section of the Court. On 6 November 2008 the President of that 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). On the same date the Ukrainian Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b), but they did not communicate any intention to avail themselves of this right.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Krutoyarovka, Ukraine. 6. On 2 January 2001 the applicant's son was hit by a car and died a few hours later in hospital.", "The driver fled from the scene of the accident. A criminal investigation was initiated, but was suspended on 14 November 2001 because it had been impossible to identify the driver. The car had belonged at some stage to a police officer (S.) working in Chişinău. On the same day, a prosecutor sent a letter to the applicant informing him of the decision taken and of his right to read that decision in the prosecutor's office. 7.", "On 29 November 2002 Mr Papuc, the Moldovan Minister of Internal Affairs, informed the applicant that the investigation had established the identity of the driver, and that the case had been sent for further investigation by the prosecution. According to the letter, the criminal investigation had started on 11 January 2001. In response to the applicant's complaint that his son had been killed in order to obtain his internal organs for a transplant, the Minister informed him that the autopsy of the applicant's son's body had not revealed any missing internal organs. 8. On 8 September 2003 a prosecutor decided to reopen the investigation into the applicant's son's death.", "He found that the decision of 14 November 2001 (see paragraph 6 above) had been taken unlawfully since the investigation into the circumstances of the case had been carried out “in a manifestly unilateral and superficial manner”. He noted, in particular, that during the interviews in early 2001 witness R.H., who had said that she was a passenger in the car which had hit the applicant's son, had mentioned that her son B.H., who was 13 years old at the time and could not be held criminally liable, had been driving the car at the time of the accident. B.H. confirmed that statement. However, subsequently both withdrew their statements.", "B.H. declared that I., his relative living in Tatarbunar, had been driving the car. Moreover, it became clear during the investigation that B.H. did not know how to drive a car. The prosecutor had not identified and interviewed the driver of the taxi which had allegedly taken R.H. home from the scene of the accident.", "The list of telephone calls made by R.H. and by S. before and after 2 January 2001 had not been obtained and analysed. In addition, eyewitness P.O. remembered the face of the driver and subsequently recognised him at an identity parade as being officer S. 9. In reply to a complaint made by the applicant on an unknown date, on 31 January 2003 the Prosecutor General's Office informed him that operational measures were being taken to identify the person responsible for his son's death. 10.", "On an unspecified date in August 2004 the applicant wrote to the Prosecutor General's Office, asking about the reasons for the delays in the investigation. He also inquired as to why no complaint had been lodged and no investigation had been carried out into the theft of the car which had hit his son. If that car had not been stolen, then it was unclear why its owner had not been prosecuted. 11. In a letter dated 10 October 2004, the Prosecutor General's Office informed the applicant that it had established a failure to perform, in a timely manner, the required investigation and operational measures.", "Consequently, the decision to discontinue the investigation was annulled and the case was sent for further investigation. The case was transferred to a group of prosecutors from the Chişinău prosecutor's office, under the supervision of the Prosecutor General's Office. The letter ended with apologies to the applicant for the delay in investigating the case. 12. In a letter to the Prosecutor General's Office in August 2004, the applicant complained about the failure to exhume his son, as he had requested earlier, in order to verify whether any of his internal organs had been removed.", "He also complained about the failure to initiate a criminal investigation into the alleged hijacking of the car which had hit his son, which led him to believe that this had only been an excuse for not prosecuting the policeman who owned the car. He finally stated that he did not have the means to hire a lawyer or travel to Moldova in order to examine the materials in the case file, but asked for a copy of the decision to discontinue the proceedings to be sent to his address in Ukraine. The applicant addressed similar letters to the President of Moldova and the Human Rights Centre. 13. S. was eventually charged and put on trial.", "On 23 May 2007 he was acquitted by the Botanica District Court since it had not been proved that he had committed the crime. It was established that he had sold the car a couple of weeks before the accident. That judgment was upheld by the Chişinău Court of Appeal on 26 September 2007. 14. On 22 November 2007 the prosecutor lodged an appeal in cassation with the Supreme Court of Justice, requesting S.'s conviction and referring to evidence showing that he had been driving his car at the time of the accident.", "15. On 9 December 2008 the Supreme Court of Justice upheld the lower court's judgment, finding that it had not been established that S. had been in the car at the time of the accident. II. RELEVANT DOMESTIC LAW 16. The relevant provisions of the Code of Criminal Procedure (“the CCP”), in force before 12 June 2003, read as follows: “Article 195.", "Complaints against acts of the prosecutor in charge of the investigation. Complaints against acts of the prosecutor in charge of the investigation or other investigative measures shall be addressed to the hierarchically superior prosecutor.” “Article 1951. Challenging before the court the actions of the investigation authority or the prosecutor. The ... victim ... may challenge before the court the actions of the investigation authority or the prosecutor, if the relevant complaint has been rejected by the prosecutor. The persons mentioned in paragraph (1) of the present Article may challenge in court ... decisions concerning the suspension ... of an investigation ...”.", "17. Article 93 of the Code of Criminal Procedure, as in force at the material time, provided that after receiving a complaint about a criminal offence the investigating body could request only supplementary material or explanations but could not conduct any investigative measures until after criminal proceedings had been formally instituted. It had to decide within three days whether or not to institute criminal proceedings. In exceptional cases such a decision was to be taken within fifteen days. THE LAW 18.", "The applicant complained of a violation of Article 2 of the Convention in that no effective investigation was carried out into the circumstances of the accident which resulted in the death of his son. Article 2 § 1 of the Convention 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. ...” 19. The applicant also complained of a violation of Article 6 of the Convention since he had not obtained any decision concerning the investigation into his son's death.", "The relevant part of Article 6 reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 20. The Government disputed this. I. ADMISSIBILITY A. The Government's preliminary objection 21. The Government submitted that the applicant had failed to exhaust available domestic remedies.", "In particular, he had failed to challenge in court the decision of 14 November 2001 to suspend the investigation (see paragraph 6 above), as he was allowed to do under Articles 195 and 1951 of the Code of Criminal Procedure in force at the relevant time (see paragraph 16 above). 22. The Court considers that the issue raised by the Government is closely related to the substance of the complaint under Article 2 of the Convention. It will therefore examine this objection together with the arguments concerning the complaint under Article 2. B.", "The applicant's complaint under Article 6 of the Convention 23. The applicant complained of a violation of Article 6 of the Convention in view of the alleged failure to provide him with the relevant decisions concerning his son's case. The Court considers that this complaint raises essentially the same issue as that raised under Article 2 of the Convention, namely, whether the authorities complied with their procedural obligations under Article 2. It will therefore not examine this complaint separately. C. Conclusion as to admissibility 24.", "The Court considers that the applicant's complaint under Article 2 of the Convention raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and that no other grounds for declaring this complaint 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 these complaints. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 25.", "The applicant complained of a violation of Article 2 of the Convention as a result of the failure to carry out a full and timely investigation into his son's death. Moreover, he was not kept fully informed of the course of the proceedings and did not receive any decisions made during the investigation phase. 26. The Government submitted that a thorough investigation had been carried out immediately after the car accident which had resulted in the applicant's son's death. Witnesses had been heard on the same day and the house of the main suspect (S.) had been searched, his telephone tapped for a month, and information concerning the sale of his car to a third person verified.", "The obligation to carry out an effective investigation was one of means, not of result, so that when it was impossible to identify the person responsible for another person's death the State could not be held responsible. The investigators verified all the versions of the applicant's son's death and found that he had died as a result of an accident. On 20 April 2006 the investigation was completed and the case was submitted to the trial court. Moreover, the applicant had not submitted any evidence that he had tried to obtain access to any materials of the case and was refused such access. Furthermore, the prosecutors had kept him informed of the course of the investigation.", "27. 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, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III), Article 2 § 1 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 v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998‑VIII). 28. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when individuals have died in suspicious circumstances.", "This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see Sabuktekin v. Turkey, no. 27243/95, § 98, ECHR 2002‑II (extracts); Kavak v. Turkey, no. 53489/99, § 45, 6 July 2006; and Al Fayed v. France (dec.), no. 38501/02, 27 September 2007).", "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, 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 mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002‑II). 29. The scope of the above-mentioned obligation is 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 Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003‑V, and Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007). 30.", "The Court recalls that in the above-cited Al Fayed and Rajkowska cases it was not disputed that the State's obligations under Article 2 of the Convention arose in the context of a death resulting from a traffic accident. In the present case, the Court notes that a number of investigative measures were carried out on the day of the fatal accident (2 January 2001), as described by the Government (see paragraph 26 above). 31. However, it is also clear from the Minister of Internal Affairs' letter to the applicant that the criminal investigation into the matter started only on 11 January 2001, that is, nine days later. In this connection the Court reiterates its finding that “in accordance with Articles 93, 96 and 109 of the Code of Criminal Procedure, no investigative measures at all could be taken in respect of the offence allegedly committed [...] unless criminal proceedings were formally instituted ...” (see, mutatis mutandis, Guţu v. Moldova, no.", "20289/02, § 61, 7 June 2007). This suggests that the failure to initiate a criminal investigation as soon as it became clear that a hit-and-run offence resulting in the victim's death had occurred may have limited the authorities' ability to carry out all reasonable investigative measures aimed at discovering the identity of the driver responsible for the applicant's son's death. The Government submitted no reasons for the delay. 32. The Court observes that in 2003 the prosecuting authority found that the investigation had been “manifestly unilateral and superficial” (see paragraph 8 above).", "A number of serious deficiencies in the investigation made in 2001 were identified, and the decision suspending the examination was annulled. The Court notes that B.H. told the prosecutors that his relative I. had been driving the car at the time of the accident, and identified the place where I. lived. However, it appears from the documents submitted to the Court that no attempt was made to find that person and verify his whereabouts at the time of the accident. The Court also notes that if it was considered that B.H.", "had been driving the car, it appears from the documents that nobody was prosecuted for letting an underage person without a driving licence drive a car. Similarly, the owner of the car at the time of the event was only questioned as a witness and was never charged with any crime, even though in the official version of events it still remains unclear who was driving the car, which belonged to R.H. at some stage. In a subsequent letter to the applicant on 10 October 2004 the Prosecutor General's Office also acknowledged deficiencies in the investigation (see paragraph 11 above). 33. The Court further notes that the investigation lasted for over five years (January 2001 - 20 April 2006, see paragraphs 6 and 26 above), with interruptions, which the authorities themselves subsequently considered unlawful (see paragraph 8 above) and protracted (see paragraph 11 above).", "The Court considers that such a long period of investigation, in the absence of complicating factors (apart from the disappearance of the perpetrator) and with the shortcomings mentioned above does not satisfy the requirement of promptness implied in the procedural obligation under Article 2 of the Convention. 34. The Court notes that starting from 2002 the applicant made complaints to various State authorities, including the Prosecutor General's Office and the President of Moldova, and that he was informed that while the investigation had been suspended, measures aimed at identifying the perpetrator were ongoing (see paragraphs 7 and 9 above). Moreover, following his complaints the investigation was reopened, but continued for another three years. In such circumstances, the Court considers that a challenge in court to the decision of 14 November 2001 to suspend the investigation could not offer sufficient redress since the court could only order the investigator to reopen the investigation (see, for example, Corsacov v. Moldova, no.", "18944/02, §§ 15, 21-32 and 34-44, 4 April 2006), which was exactly what he obtained from the Prosecutor General's Office. Therefore, the Government's objection concerning the applicant's failure to exhaust available domestic remedies must be rejected. 35. There has, accordingly, been a violation of Article 2 in the present case. III.", "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.” 37. The applicant did not make any claims for just satisfaction. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government's preliminary objection regarding non-exhaustion of domestic remedies and declares the application admissible; 2.", "Holds that there has been a violation of Article 2 of the Convention under its procedural limb and dismisses in consequence the Government's above-mentioned preliminary objection. Done in English, and notified in writing on 5 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF A.L. (X.W.) v. RUSSIA (Application no. 44095/14) JUDGMENT STRASBOURG 29 October 2015 FINAL 29/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.", "In the case of A.L. (X.W.) v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44095/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr A.L.", "(X.W.) (“the applicant”), whose nationality – Russian or Chinese – is disputed by the parties, on 16 June 2014. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicant was represented by Ms O. Tseytlina and Mr S. Golubok, lawyers practising in St Petersburg.", "The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that if he were to be forcibly returned to China, he would be at risk of being convicted and given the death penalty. He also alleged that the conditions of his detention in a detention centre for aliens and in a police station had been inhuman. 4.", "On 17 June 2014 the Acting President of the Section to which the case was allocated indicated to the respondent Government that the applicant should not be expelled or otherwise forcibly removed to China or any other country for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). 5. On 13 October 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "According to the applicant, he is a Russian national, A.L., born in 1972. According to the Government, the applicant is a Chinese national, X.W., born in 1973. He lives in Elista. A. Extradition, administrative removal and exclusion proceedings against the applicant 1.", "Extradition proceedings 7. On 19 March 2014 the applicant was arrested in St Petersburg on suspicion of murdering a Chinese policeman in 1996. He was in possession of a Russian national passport in the name of A.L., born in 1972 in the Primorskiy region of Russia. 8. On 21 March 2014 the Smolninskiy District Court of St Petersburg ordered the applicant’s detention until 17 April 2014, pending receipt of an official extradition request from the Chinese authorities.", "The District Court noted that the applicant had been identified by means of photographic comparisons as X.W., a Chinese national born in China in 1973. His name was on Interpol’s list of wanted persons. The Chinese authorities had issued an arrest warrant in his name dated 15 December 2011 from which it was apparent that he was suspected of a criminal offence under Article 232 of the Chinese Criminal Code. That offence was punishable by the death penalty, life imprisonment or at least three years’ imprisonment, and the limitation period was twenty years. The limitation period in respect of a comparable criminal offence in the Russian Criminal Code was fifteen years, but this was suspended if the suspect had fled from justice.", "The court further noted that a Russian national passport in the name of A.L. had apparently been unlawfully obtained by the applicant after he submitted false information to the competent Russian authorities. It was clear that he was not a Russian national but a Chinese national and could be therefore extradited to China. 9. The Chinese authorities failed to submit an official extradition request within the thirty-day time-limit established by the Bilateral Treaty on Extradition of 26 June 1995.", "10. On 17 April 2014 the St Petersburg Transport Prosecutor ordered the applicant’s release. At the same time he noted that it was necessary to start administrative removal proceedings against the applicant on the grounds that his residence in Russia was unlawful. 11. Despite the release order, the applicant remained in detention.", "2. Administrative removal proceedings 12. On 18 April 2014 the St Petersburg transport police drafted a report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code (unlawful residence in Russia of a foreign national, see paragraph 47 below). 13. On the same day, 18 April 2014, the Smolninskiy District Court found the applicant guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences and ordered his administrative removal to China.", "The court took note of a letter dated 21 March 2014 by the Federal Migration Service which showed that it was impossible to establish whether or not the applicant was a Russian national. He had received a Russian national passport in the name of A.L. in 2000 after declaring that he had lost his previous passport, which had been issued in 1988. However, according to the Federal Migration Service, the allegedly lost passport never existed. The court further relied on the extradition case‑file, from which it was apparent that the applicant was in fact a Chinese national, X.W., rather than a Russian national A.L.", "Being a Chinese national, he was residing in Russia unlawfully without a valid visa or residence permit. The court noted that the applicant was sought by the Chinese authorities on suspicion of murder. He was therefore dangerous and it was necessary to sentence him to administrative removal from Russia. Lastly, the court observed that, although the applicant had a Russian wife, he did not have any children who were minors living in Russia. In such circumstances, and taking into account his dangerousness, the public interest outweighed his personal interest in maintaining his family life in Russia.", "14. The applicant appealed. He submitted, in particular, that his passport as a Russian national had never been cancelled and was therefore still valid. He further argued that his administrative removal was extradition in disguise. The fifteen-year limitation period established by Russian criminal law had expired and he could no longer be lawfully extradited to China.", "If he was administratively removed to China he would be immediately arrested and very probably subjected to the death penalty. His removal to China would therefore be in breach of Articles 2 and 3 of the Convention. 15. On 24 April 2014 the Federal Migration Service found that the applicant was not a Russian national. He had obtained the Russian national passport in the name of A.L.", "unlawfully. 16. On 28 August 2014 the St Petersburg City Court quashed the judgment of 18 April 2014, finding that the administrative offence report of 18 April 2014 had been procedurally defective, and remitted the case to the District Court for a new examination. These proceedings were later discontinued. 17.", "On 29 August 2014 the Krasnoselskiy District police drafted a new report on the commission by the applicant of an offence under Article 18.8 of the Administrative Offences Code. 18. On 30 August 2014 the Krasnoselskiy District Court of St Petersburg discontinued the administrative offence proceedings against the applicant, finding that the administrative offence report of 29 August 2014 had been procedurally defective. 3. Exclusion proceedings 19.", "On 31 August 2104 the applicant was released. His passport, seized upon arrest, was not returned to him. He was served with a decision by the St Petersburg and Leningrad Region Interior Department, dated 29 August 2014, declaring the undesirability of his presence in Russia (the “exclusion order”) which read in its entirety as follows: “On 27 August 2014 the Interior Ministry of the Russian Federation decided that your presence (residence) in Russia was undesirable in accordance with section 25 of [the Entry and Exit Procedures Act]. You must therefore leave the Russian Federation before 3 September 2014. If you do not leave before the stated deadline, you will be deported.", "In accordance with section 27 of [the Entry and Exit Procedures Act], if a decision declaring the undesirability of an individual’s presence (residence) in the Russian Federation has been issued, that individual may no longer enter the Russian Federation.” 20. The applicant challenged the exclusion order before the Smolninskiy District Court. He also complained that his passport had been unlawfully seized. He submitted that he could not cross the Russian border without a passport and could not therefore comply with the exclusion order by leaving Russia for another country. In these circumstances, the exclusion order would automatically entail his deportation to China.", "If he was deported to China he would be immediately arrested and very probably subjected to the death penalty. His deportation would therefore be in breach of Articles 2 and 3 of the Convention. 21. On 12 November 2014 the Smolninskiy District Court found that the exclusion order had been lawful. It had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons.", "Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there were sufficient reasons to find that he represented a real threat to public order and security. The court further noted that the applicant did not dispute the above facts. The thrust of his complaint was that his deportation to China would expose him to a risk of being subjected to the death penalty that amounted to inhuman treatment. Those arguments could not, however, serve as grounds for annulling the lawfully adopted exclusion order. The court also held that the applicant’s argument that the exclusion order would automatically entail his deportation to China was unconvincing.", "Firstly, deportation was not automatic and required a separate administrative decision that could be challenged before a court. Secondly, the applicant had the possibility of avoiding deportation to China by leaving Russia for another country. 22. The court further held that the seizure of the applicant’s passport in the name of A.L. had been lawful.", "By the decision of 24 April 2014 the Federal Migration Service had found that that passport had been issued unlawfully and that the applicant was not a Russian national. Those were lawful grounds for seizing a passport. The procedure prescribed by law had been respected. 23. The applicant appealed.", "He submitted, in particular, that the domestic law did not require a separate administrative decision on deportation. The exclusion order alone constituted a sufficient legal basis for deportation and his failure to leave Russia before the stated deadline could therefore entail automatic deportation to China. He did not have any remedies with suspensive effect in such a situation. He further reiterated his argument that he could not leave Russia for another country because his passport had been seized by the authorities and he did not have any other identity documents. Lastly, he argued that his deportation to China would amount to a breach of not only Articles 2 and 3 of the Convention, but also of Article 8, because he was married to a Russian national.", "24. On 25 February 2015 the St Petersburg City Court upheld the judgment of 12 November 2014 on appeal, finding that it had been lawful, well-reasoned and justified. It added that a genetic test had established that the applicant’s genetic profile matched the genetic profiles of X.W.’s parents. There was therefore no doubt that the applicant’s real name was X.W. It further agreed with the District Court that the applicant could avoid deportation to China by leaving Russia for another country using his Chinese passport.", "B. Conditions of the applicant’s detention 1. Detention centre for aliens 25. From 18 April to 29 August 2014 the applicant was detained in a detention centre for aliens (Центр для содержания иностранных граждан) located in Krasnoye Selo in St Petersburg. (a) The applicant’s description 26.", "From 18 to 21 April 2014 the applicant was held in a punishment cell. From 18 to 20 April 2014 he was handcuffed. The cell had no windows and was empty. It had no bunk or chair and the applicant had to stand or remain in the squatting position all the time. There was no lavatory bowl or running water.", "His requests to allow him to use the toilet were refused and he had to relieve himself in a plastic bottle. He was given food only once during that period but was anyway unable to eat it because of his handcuffs. 27. On 21 April 2014 the applicant was transferred to solitary confinement cell no. 412 on the fourth floor where he remained until 2 July 2014.", "The cell measured 9 sq. m and was equipped with a bed, a bedside cabinet, a table, a sink and a lavatory bowl that stank. The window did not open so the applicant could not air his cell. The window was also covered with paint which blocked the daylight. The artificial lights were dim.", "The cell was damp and cold and the applicant had to sleep with his coat on. The cell was swarming with mice. 28. From 2 July to 29 August 2014 the applicant was held in solitary confinement cell no. 413.", "The conditions of detention in that cell were similar to those in cell no. 412. 29. Both cells nos. 412 and 413 were locked and the applicant remained alone all the time.", "Neither the other inmates nor the warders ever entered the cells. The cells were not equipped with a radio or TV set. The applicant was not given any books or newspapers. He was not allowed to use his mobile telephone. As he was in total isolation, he counted the days by drawing sticks on paper.", "30. It was not until 5 June 2014 that he was allowed to take walks in the yard. In particular, he was allowed to go out in the yard on 10, 11, 12, 14, 15, 17, 18, 21 and 30 June, 13, 7, 11, 13, 15, 19, 27 and 29 July and 3, 6, 9, 11, 12, 18, 21, 24 and 25 August 2014. The walks lasted between ten minutes and half an hour. The exercise yard measured 30 m by 8 m and was enclosed by a three-metre-high fence.", "The applicant was always alone in the yard. 31. It was very difficult to get permission for family visits. He was allowed only four visits from his wife, each time for less than half an hour and in the presence of warders. 32.", "The detention centre had no canteen and the food was brought from other detention facilities. It was always cold and did not contain any vegetable, fruit, meat or dairy products. The warders gave him food through a small window in the door. No drinking water was provided and the applicant had to drink tap water which was of poor quality. 33.", "During his four-month stay in the centre the applicant was allowed to take a shower only five times. The water in the shower was cold. There was no laundry service and the applicant had to wash his clothes himself. (b) The Government’s description 34. According to the Government, the applicant was held in cell no.", "412 which measured 27.4 sq. m. The cell had windows, artificial light and central heating. It was equipped with a lavatory bowl, running hot and cold water, a bed, a bedside cabinet and a dining table. 35. Inmates were provided with hot meals three times per day.", "They could walk in the exercise yard every morning in accordance with applicable regulations. 36. The detention centre for aliens had a library which the applicant was allowed to use on request. 37. The detention centre for aliens had no punishment cells and its warders never used handcuffs.", "2. Police station 38. On 29 August 2014 the applicant was transferred to an administrative detention cell at Krasnoselskiy District police station no. 9 where he remained until 31 August 2014. (a) The applicant’s description 39.", "The applicant was placed in a cell at about 4.30 p.m. on 29 August. However, he remained handcuffed until 11.30 p.m. of the same day. 40. The cell measured 3.75 sq. m. It had concrete walls and ceiling and no windows.", "There was an opening in the wall measuring 40 cm by 60 cm blocked by a metal sheet with ventilation holes. 41. The cell was equipped with a narrow wooden bench. There was no table, chair, sink or lavatory bowl. The applicant was not given any food or water.", "He was not allowed to go to the toilet until about 1 p.m. on 30 August before a court hearing. He remained handcuffed from 1 to 5 p.m. on 30 August 2014 during the entire court hearing and until his return to the police station. 42. The applicant’s representatives were not allowed to visit him. 43.", "The applicant was released at about 4.30 p.m. on 31 August 2014. (b) The Government’s description 44. The Government submitted the floor plan of police station no. 9. It is apparent from the plan that there were three administrative detention cells, two of them measuring 7.55 sq.", "m and one measuring 6.5 sq. m. Each cell was equipped with two benches. There was no other furniture and no lavatory facilities in the cell. 45. The Government confirmed that the windows were blocked by metal screens with holes in them.", "46. According to the police officers’ statements, the applicant was given food but refused to eat it. He preferred to eat food brought by his wife. He was allowed to go to the police station toilet on request. The applicant was not handcuffed.", "II. RELEVANT DOMESTIC LAW A. Administrative removal 47. Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national or a stateless person who infringes the procedure for entry into the Russian Federation or the regulations on staying or residing in the Russian Federation ‒ such as the regulations on migration, travel or choice of permanent or temporary residence ‒ will be liable to punishment by an administrative fine and possible administrative removal from the Russian Federation. A foreign national or stateless person living on the territory of the Russian Federation without a document confirming their right to reside or stay in the Russian Federation will be liable to punishment by an administrative fine and administrative removal from the Russian Federation.", "The above offences, if committed in the federal-level cities of Moscow and St Petersburg or in the Moscow or Leningrad Regions, are punishable by an administrative fine and administrative removal from the Russian Federation. 48. Pursuant to Article 28.3 § 2 (1), a report on the offence described in Article 18.8 must be drawn up by a police officer. Article 28.8 requires the report to be transmitted within a day to a judge or an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation is to be made by a judge of a court of general jurisdiction.", "Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or a higher court. B. Exclusion orders and deportation 49. The Entry and Exit Procedures Act (no. 114-FZ of 15 August 1996) provides that a competent authority may issue a decision declaring that a foreign national’s presence on Russian territory is undesirable. Such a decision may be issued if a foreign national is unlawfully residing on Russian territory or if his or her residence is lawful but constitutes a real threat to the defensive capacity or security of the State, to public order or health, etc.", "If such a decision has been taken, the foreign national must leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10). C. Passport seizure 50. Order no. 178 of 11 March 2014 by the Federal Migration Service on Seizure of Russian national passports provides that a Russian national passport must be seized if it has been issued unlawfully – that is to say if it has been issued on the basis of false information submitted by the claimant, for instance, or to a person who, according to the Federal Migration Service’s records, was not a Russian national (§ 2).", "A decision declaring that a passport has been issued unlawfully is taken by the head of the local department of the Federal Migration Service (§ 4). D. Death penalty 51. In its decision no. 1344-O-P of 19 November 2009 the Russian Constitutional Court held as follows: “4.1. There is a steady trend in international law towards abolition of the death penalty (Protocol No.", "6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Protocol to the American Convention on Human Rights to Abolish the Death Penalty), including its complete and unconditional abolition by Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms which entered into force in 2003 ... The Russian Federation’s intention to establish a moratorium on the execution of death sentences and to take other measures to abolish the death penalty was one of the prerequisites for admission into the Council of Europe. ... By acceding to the statutory documents of the Council of Europe, the Russian Federation has confirmed its commitment to its promises and to fulfilling the obligations it assumed before being admitted into the Council of Europe ... 4.2. ...", "The Russian Federation signed Protocol No. 6 on 16 April 1997 and was bound (by the obligation ‒ expressly accepted at the moment of accession, on 28 February 1996 ‒ to ratify that Protocol no later than three years after its accession to the Council of Europe) to ratify it before 28 February 1999. A Draft Law on the Ratification of Protocol No. 6 was submitted by the President of the Russian Federation to the State Duma on 6 August 1999 ... 4.3. The fact that Protocol No.", "6 has not yet been ratified ... does not prevent it being an essential part of the legal framework governing the right to life. According to Article 18 of the Vienna Convention on the law of treaties of 23 May 1969, a State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made clear its intention not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. Thus, the Russian Federation is obliged under Article 18 of the Vienna Convention on the law of treaties to refrain from acts which would defeat the object and purpose of Protocol No. 6, which it has signed, until it has made clear its intention not to become a party to it. The main obligation under Protocol No.", "6 is to abolish the death penalty, that is to remove this type of punishment from domestic law and to refrain from its application in respect of all criminal offences, except ‘in respect of acts committed in time of war or of imminent threat of war’. Therefore, starting from 16 April 1997, the death penalty may not be applied in Russia, which means that no one may be condemned to such penalty or executed ... 6. ... the death penalty is an exceptional penalty included in the Criminal Code of the Russian Federation. In accordance with Article 20 of the Russian Constitution it was established as a temporary measure (‘until its abolition’) during a transitional period. At present the relevant provisions of the Criminal Code may not be applied because the legal framework governing the right to life, shaped in the Russian Federation on the basis of Article 20 of the Constitution, taken together with its Articles 15 (part 4) and 17 and of the rulings of the Constitutional Court, provides for a ban on imposing the death penalty and executing previously imposed death sentences.", "The Russian Federation is bound to apply a ban on the death penalty by its constitutional obligations, which stem from its international treaties and domestic legal instruments adopted by ... the Parliament, the President of the Russian Federation and the Constitutional Court of the Russian Federation. This means that there is in the Russian Federation a complex moratorium on the death penalty implementing the constitutional guarantees of the right to life. The moratorium ... was initially intended to be of a short duration. However, it has now been in force for more than ten years (from the moment of Russia’s acceptance of its obligations upon accession to the Council of Europe on 28 February 1996 and its signature of Protocol No. 6 on 16 April 1997, as well as the explicit imposition of a ban on the death penalty on the grounds of the lack of requisite procedural guarantees by the Constitutional Court’ judgment of 2 February 1999 no.", "3-П). The moratorium has been confirmed and followed in practice through the rulings of the Constitutional Court and the judgments of the courts of general jurisdictions. 7. Thus, in the Russian Federation, in compliance with its Constitution and other legal instruments implementing it, no death sentences have been imposed or executed for a long time. As a result of the lengthy existence of the moratorium on the death penalty ... a constitutional regime providing for firm guarantees of the right not to be subjected to the death penalty has been formed.", "Taking into account the international [abolitionist] trend and the [international] obligations assumed by the Russian Federation, an irreversible process of abolishing the death penalty is underway [in Russia], where it has always been an exceptional measure of a temporary nature (‘until its abolition’) permitted for a transitional period only. That process is fully compliant with the aim proclaimed in Article 20 (part 2) of the Constitution of the Russian Federation.” III. INTERNATIONAL MATERIAL A. Reports on the death penalty in China 52. Amnesty International’s “Annual report: China 2013” provides: “Death sentences continued to be imposed after unfair trials.", "More people were executed in China than in the rest of the world put together. Statistics on death sentences and executions remained classified. Under current Chinese laws, there were no procedures for death row prisoners to seek pardon or commutation of their sentence.” 53. Amnesty International’s 2014 report “Death Sentences and Execution” reads, in so far as relevant, as follows: “Amnesty International monitors the use of the death penalty in China through available, but limited, sources, including media reports. On the basis of these sources, the organization estimates that in 2014 China continued to execute more than the rest of the world combined, and sentenced thousands to death.", "Death sentences continued to be imposed after unfair trials and for non-lethal acts. Approximately 8% of all recorded executions in China, were carried out for drug-related crimes. Economic crimes, including embezzlement, counterfeiting and taking bribes accounted for approximately 15% of all executions. In some instances family members only found out about the executions of their relatives on the same day the death sentences were implemented ... On 16 June, 13 people involved in seven separate cases were executed. They had been convicted of various offences including organizing, leading and participating in terrorist groups; murder; arson; theft; and illegal manufacture, storage and transportation of explosives ... Several cases of wrongful convictions and executions emerged in 2014 ...” B. Solitary confinement of prisoners 54.", "Recommendation (Rec(2006)2) of the Committee of Ministers of the Council of Europe to Member States on the European Prison Rules, adopted on 11 January 2006 (“European Prison Rules”) provide, in so far as relevant, as follows: “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.", "53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. ... 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority ...” 55. The relevant extracts from the 21st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (2011) 28) read as follows: “53.", "Solitary confinement of prisoners ... can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is ... 54. The CPT understands the term “solitary confinement” as meaning whenever a prisoner is ordered to be held separately from other prisoners, for example, as a result of a court decision, as a disciplinary sanction imposed within the prison system, as a preventative administrative measure or for the protection of the prisoner concerned ... 55. Solitary confinement further restricts the already highly limited rights of people deprived of their liberty. The extra restrictions involved are not inherent in the fact of imprisonment and thus have to be separately justified.", "In order to test whether any particular imposition of the measure is justified, it is appropriate to apply the traditional tests enshrined in the provisions of the European Convention on Human Rights and developed by the case-law of the European Court of Human Rights. ... (a) Proportionate: any further restriction of a prisoner’s rights must be linked to the actual or potential harm the prisoner has caused or will cause by his or her actions (or the potential harm to which he/she is exposed) in the prison setting. Given that solitary confinement is a serious restriction of a prisoner’s rights which involves inherent risks to the prisoner, the level of actual or potential harm must be at least equally serious and uniquely capable of being addressed by this means. ... The longer the measure is continued, the stronger must be the reason for it and the more must be done to ensure that it achieves its purpose.", "(b) Lawful: provision must be made in domestic law for each kind of solitary confinement which is permitted in a country, and this provision must be reasonable. It must be communicated in a comprehensible form to everyone who may be subject to it. The law should specify the precise circumstances in which each form of solitary confinement can be imposed, the persons who may impose it, the procedures to be followed by those persons, the right of the prisoner affected to make representations as part of the procedure, the requirement to give the prisoner the fullest possible reasons for the decision ..., the frequency and procedure of reviews of the decision and the procedures for appealing against the decision. The regime for each type of solitary confinement should be established by law, with each of the regimes clearly differentiated from each other. (c) Accountable: full records should be maintained of all decisions to impose solitary confinement and of all reviews of the decisions.", "These records should evidence all the factors which have been taken into account and the information on which they were based. There should also be a record of the prisoner’s input or refusal to contribute to the decision-making process. Further, full records should be kept of all interactions with staff while the prisoner is in solitary confinement, including attempts by staff to engage with the prisoner and the prisoner’s response. (d) Necessary: the rule that only restrictions necessary for the safe and orderly confinement of the prisoner and the requirements of justice are permitted applies equally to prisoners undergoing solitary confinement. Accordingly, during solitary confinement there should, for example, be no automatic withdrawal of rights to visits, telephone calls and correspondence or of access to resources normally available to prisoners (such as reading materials).", "Equally, the regime should be flexible enough to permit relaxation of any restriction which is not necessary in individual cases. (e) Non-discriminatory: not only must all relevant matters be taken into account in deciding to impose solitary confinement, but care must also be taken to ensure that irrelevant matters are not taken into account. Authorities should monitor the use of all forms of solitary confinement to ensure that they are not used disproportionately, without an objective and reasonable justification, against a particular prisoner or particular groups of prisoners. 56. ... Withdrawal of a prisoner from contact with other prisoners may be imposed under the normal disciplinary procedures specified by the law, as the most severe disciplinary punishment.", "... Given the potentially very damaging effects of solitary confinement, the CPT considers that the principle of proportionality requires that it be used as a disciplinary punishment only in exceptional cases and as a last resort, and for the shortest possible period of time. ... The CPT considers that the maximum period should be no higher than 14 days for a given offence, and preferably lower. Further, there should be a prohibition of sequential disciplinary sentences resulting in an uninterrupted period of solitary confinement in excess of the maximum period.", "Any offences committed by a prisoner which it is felt call for more severe sanctions should be dealt with through the criminal justice system. 57. ... The reason for the imposition of solitary confinement as a punishment, and the length of time for which it is imposed, should be fully documented in the record of the disciplinary hearing. Such records should be available to senior managers and oversight bodies.", "There should also be an effective appeal process which can re-examine the finding of guilt and/or the sentence in time to make a difference to them in practice. A necessary concomitant of this is the ready availability of legal advice for prisoners in this situation. Prisoners undergoing this punishment should be visited on a daily basis by the prison director or another member of senior management, and the order given to terminate solitary confinement when this step is called for on account of the prisoner’s condition or behaviour. Records should be kept of such visits and of related decisions. 58.", "The cells used for solitary confinement should meet the same minimum standards as those applicable to other prisoner accommodation. Thus, they should be of an adequate size, enjoy access to natural light and be equipped with artificial lighting (in both cases sufficient to read by), and have adequate heating and ventilation. They should also be equipped with a means of communication with prison staff. Proper arrangements should be made for the prisoners to meet the needs of nature in a decent fashion at all times and to shower at least as often as prisoners in normal regime. Prisoners held in solitary confinement should be allowed to wear normal prison clothing and the food provided to them should be the normal prison diet, including special diets when required.", "As for the exercise area used by such prisoners, it should be sufficiently large to enable them genuinely to exert themselves and should have some means of protection from the elements ... 61. As with all other regimes applied to prisoners, the principle that prisoners placed in solitary confinement should be subject to no more restrictions than are necessary for their safe and orderly confinement must be followed. Further, special efforts should be made to enhance the regime of those kept in long-term solitary confinement, who need particular attention to minimise the damage that this measure can do to them. It is not necessary to have an “all or nothing” approach to the question. Each particular restriction should only be applied as appropriate to the assessed risk of the individual prisoner.", "Equally, as already indicated, there should be a clear differentiation between the regimes applied to persons subject to solitary confinement, having regard to the type of solitary confinement involved. (b) Prisoners undergoing solitary confinement as a disciplinary sanction should never be totally deprived of contacts with their families and any restrictions on such contacts should be imposed only where the offence relates to such contacts. And there should be no restriction on their right of access to a lawyer. They should be entitled to at least one hour’s outdoor exercise per day, from the very first day of placement in solitary confinement, and be encouraged to take outdoor exercise. They should also be permitted access to a reasonable range of reading material ....", "It is crucially important that they have some stimulation to assist in maintaining their mental wellbeing... 63. ... Health-care staff should be very attentive to the situation of all prisoners placed under solitary confinement. The health-care staff should be informed of every such placement and should visit the prisoner immediately after placement and thereafter, on a regular basis, at least once per day, and provide them with prompt medical assistance and treatment as required. They should report to the prison director whenever a prisoner’s health is being put seriously at risk by being held in solitary confinement.", "...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 13 OF THE CONVENTION ON ACCOUNT OF IMMINENT FORCIBLE RETURN TO CHINA 56. The applicant complained that if he were to be forcibly returned to China, he would be at risk of being convicted and given the death penalty. He further complained that he did not have an effective remedy for the above complaint. He relied on Articles 2, 3 and 13 of the Convention, the relevant parts of which provide: Article 2 “1.", "Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 57. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Articles 2 and 3 (a) Submissions by the parties 58. The Government submitted that the domestic courts had examined the applicant’s argument that his deportation to China would expose him to the risk of being subjected to the death penalty and receiving inhuman treatment.", "Those arguments had been rejected because the aim of the domestic proceedings against him had been to declare his presence in Russia undesirable rather than to extradite or deport him to China. The exclusion order would not automatically entail his deportation to China; the applicant could still leave Russia for another country using his Chinese passport. 59. The Government further submitted that the domestic courts had found that the exclusion order against the applicant had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons. Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there had been sufficient reasons to find that he represented a real threat to public order and security.", "60. The applicant submitted that he was being sought on the capital charge of murder by the Chinese authorities. The Russian authorities had initially envisaged extraditing him to China but the extradition proceedings had eventually been abandoned. An attempt to remove him to China through administrative removal proceedings had proved unsuccessful because the domestic courts had refused to order his administrative removal. The Russian authorities had then initiated exclusion proceedings, which were purely administrative in nature and did not require approval by a court.", "Although an exclusion order could be challenged in court, the judicial review proceedings did not have suspensive effect. The domestic authorities relied explicitly on the charges brought against him in China as grounds for finding that he presented a security risk justifying an exclusion order. 61. The applicant further argued that neither the Interior Ministry which had issued the exclusion order nor the domestic courts which had carried out the judicial review thereof had assessed the risks of being subjected to the death penalty and receiving inhuman treatment which his forcible return to China would entail. He disputed the Government’s assertion that the exclusion order would not entail automatic deportation to China.", "He pointed out that the exclusion order mentioned explicitly that if he did not leave Russia before the stated deadline he would be deported. Indeed, the Entry and Exit Procedures Act provided for an automatic deportation of any foreign national who failed to leave Russia as required (see paragraph 49 above). Given that his passport had been seized by the authorities and he did not have any other identity documents, he could not leave Russia for another country. The only option open to him was therefore forcible removal to China by the Russian authorities. (b) The Court’s assessment (i) General principles 62.", "The Court reiterates its general principles as set out in the case of Al‑Saadoon and Mufdhi v. the United Kingdom (no. 61498/08, ECHR 2010): “115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain.", "In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings”. 116.", "Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that “[n]o 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”. However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe (see paragraph 95 above; see also paragraph 96 above). Protocol No.", "6 to the Convention, which abolishes the death penalty except in respect of “acts committed in time of war or of imminent threat of war”, was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No.", "6 and all save Russia have ratified it. 117. ... Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No.", "13 has been ratified by forty-two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol ... 119. In Öcalan (cited above), the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions [:] ‘... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia.", "This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment. ...", "Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.’ Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in Öcalan went on to examine the position as regards capital punishment in all circumstances: ‘164.", "The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.", "165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.’ 120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty.", "Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (compare Soering, cited above, §§ 102-04) ... 123.", "The Court further reiterates that 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 (see Saadi, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and, mutatis mutandis, Soering, cited above, § 111; S.R.", "v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).” (ii) Application of these principles to the present case 63. The Court notes that, upon becoming a member of the Council of Europe, Russia undertook to abolish the death penalty as a condition of its admission into the organisation.", "Immediately after that a de facto moratorium on the death penalty was applied in Russia: no one has been given the death penalty or executed since 1996. In 2009 the Russian Constitutional Court confirmed the moratorium and held that a constitutional regime providing for firm guarantees of the right not to be subjected to the death penalty had been formed in Russia. It also found that an irreversible process of abolishing the death penalty was underway in Russia on the basis of its Constitution and its international obligations, including Protocol No. 6, which was signed but not ratified by it (see paragraph 51 above). It is notable that the moratorium in force in Russia, as confirmed by the Constitutional Court, does not make an exception allowing imposition of the death penalty in time of war.", "64. In view of Russia’s unequivocal undertaking to abolish the death penalty, partly fulfilled through an initially de facto moratorium that was subsequently confirmed de jure by the Constitutional Court, the Court considers that the finding made in the case of Al-Saadoon and Mufdhi ‒ namely that capital punishment has become an unacceptable form of punishment that is no longer permissible under Article 2 as amended by Protocols Nos. 6 and 13 and that it amounts to “inhuman or degrading treatment or punishment” under Article 3 (see paragraph 62 above) ‒ applies fully to Russia, even though it has not ratified Protocol No. 6 or signed Protocol No. 13.", "Russia is therefore bound by an obligation that stems from Articles 2 and 3 not to extradite or deport an individual to another State where there exist substantial grounds for believing that he or she would face a real risk of being subjected to the death penalty there. 65. Turning to the circumstances of the present case, the Court notes that the domestic courts did not make an assessment of the risks of being subjected to the death penalty and receiving inhuman treatment if the applicant were deported to China. Their reasoning on that issue was limited to stating, without reliance on any domestic provision, that the exclusion order issued against the applicant did not automatically entail his deportation to China and that the applicant could still leave Russia for another country. The Court is not convinced by that argument.", "The Entry and Exit Procedures Act provides that any foreign national who is the subject of an exclusion order and fails to leave Russia as required is to be deported (see paragraph 49 above). The exclusion order against the applicant mentioned explicitly that if he did not leave Russia before the stated deadline he would be deported (see paragraph 19 above). The Court also notes that the applicant’s Russian passport was seized and there is no evidence that he possesses any other valid identity document or the requisite visas allowing him to cross the Russian border and enter a third country. In such circumstances, the Court accepts the applicant’s submission that it was impossible for him to leave Russia for another country within the three-day time-limit imposed by the exclusion order and that he is now at imminent risk of deportation to China as a direct and inevitable consequence of that exclusion order. 66.", "It has not been disputed by the parties that there is a substantial and foreseeable risk that, if deported to China, the applicant might be given the death penalty following trial on the capital charge of murder. The Court therefore concludes that the applicant’s forcible return to China would expose him to a real risk of treatment contrary to Articles 2 and 3 of the Convention and would therefore give rise to a violation of these Articles. 2. Article 13 67. While considering this complaint admissible, in view of the reasoning and findings made under Article 3, the Court does not consider it necessary to deal separately with the applicant’s complaint under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION IN THE DETENTION CENTRE FOR ALIENS 68. The applicant complained that the conditions of his detention in the Krasnoe Selo detention centre for aliens had been inhuman and degrading and that he had been placed in solitary confinement and thus in social isolation. He relied on Article 3 of the Convention. A. Admissibility 69.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Submissions by the parties 70. The Government submitted that the conditions of the applicant’s detention in the detention centre for aliens had been satisfactory and had complied with both the domestic regulations and Article 3 of the Convention. He had had sufficient personal space, an individual sleeping place and unrestricted access to lavatory facilities. All sanitary and hygiene standards had been met. The applicant had been provided with hot meals three times per day, had been able to walk in the yard and to use the library.", "He had not been handcuffed or placed in a punishment cell as the centre for aliens did not have such cells. 71. The applicant submitted that the conditions of his detention in the detention centre for aliens had been inhuman and degrading. During the first few days he had been held in a windowless punishment cell with no access to food, water or toilet facilities. He disputed the Government’s assertion that there were no punishment cells in the detention centre for aliens.", "He argued that the Government had not submitted the floor plan of the detention centre or any other documents in support of their assertion. The applicant produced a letter from the head of the local department of the Federal Migration Service in an unrelated case from which it was apparent that unruly detainees were held on the fourth floor of the centre in locked cells. It was clear from that letter that the detention centre for aliens used the cells on the fourth floor as punishment cells. 72. The applicant further submitted that he had been held in solitary confinement and total isolation for more than four months.", "No reasons had been given to justify this solitary confinement. The applicant did not have a record of unruly or disorderly behaviour and had not required protection from other inmates. Despite that, he had been held alone in a locked cell without any interaction with other inmates. He had had no radio or TV set and had not been given any books, newspapers or magazines. He had not left his cell for more than a month and a half.", "He had been then allowed to take short walks in the yard, but only occasionally. The lengthy total isolation had caused him intense mental suffering. 73. Lastly, the applicant submitted that the cells in question had been smelly, damp, cold and dark. The food had been of poor quality and drinking water had not been provided.", "The applicant produced affidavits by two inmates of the centre who, like the applicant, had also been held on the fourth floor. They provided a similar description of the detention centre, its cells and the detention regime in force. 2. The Court’s assessment 74. The Court will first examine the applicant’s complaint that he had been placed in solitary confinement, and thus in total social isolation, without any justification.", "75. The Court reiterates in this connection that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 191, ECHR 2005‑IV). Whilst prolonged removal from association with others is undesirable, the question of whether or not such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).", "76. Solitary confinement is one of the most serious measures which can be imposed within a prison. In view of the gravity of the measure, the domestic authorities are under an obligation to assess all the relevant factors in an inmate’s case before placing him in solitary confinement (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 83, 27 January 2009, and Onoufriou v. Cyprus, no. 24407/04, § 71, 7 January 2010).", "In order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. Firstly, solitary confinement measures should be ordered only in exceptional cases and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules (see paragraph 54 above). Secondly, the decision imposing such solitary confinement must be based on genuine grounds both at the outset and also when its duration is extended. Thirdly, the decisions issued by the authorities should allow it to be established that those authorities have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour, and they must provide substantive reasons in support thereof. The statement of reasons should be increasingly detailed and compelling as time goes by.", "Finally, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances (see Ramirez Sanchez v. France [GC], no. 59450/00, § 139, ECHR 2006‑IX, and Onoufriou, cited above, § 70). 77. It has not been disputed by the Government in the present case that the applicant was detained in solitary confinement for the entirety of his stay in the detention centre for aliens, from 18 April to 29 August 2014, that is to say a period of more than four months. According to the applicant, he did not have any contact with other inmates.", "His contact with the warders was limited to the delivery of food through a small window in the door and occasional escorting to the exercise yard, where he was again left alone. The number of family visits was also restricted, meaning that the applicant was allowed only four half-hour visits from his wife during the entire period of his detention. Being locked in his cell, the applicant did not have access to the detention centre’s library or to a radio or TV set. He was not given any books or newspapers. He was not allowed to use his mobile telephone.", "Cut off from any outside information or meaningful communication, the applicant was reduced to counting days by drawing sticks on paper. The Court notes that, while the applicant’s allegations were supported by a letter from the local Federal Migration Service and affidavits from inmates (see paragraphs 71 and 73 above), the Government have provided no information to counter the applicant’s allegations that he was kept in nearly absolute social isolation (see, for similar reasoning, Gorbulya v. Russia, no. 31535/09, § 79, 6 March 2014). The Court considers that the type of solitary confinement to which the applicant was subjected, without appropriate mental or physical stimulation, was likely to have had a damaging effects on him, resulting in the deterioration of both his mental faculties and his social skills (see Csüllög v. Hungary, no. 30042/08, § 30, 7 June 2011).", "78. No justification for the applicant’s solitary confinement has ever been offered either at domestic level or before the Court. It has never been claimed that the applicant had any record of disorderly or unruly conduct, was in any manner dangerous, had ever mounted threats against ‒ or attacked ‒ other inmates or warders, or had himself been the victim of threats of violence. 79. The Court observes that there is no evidence in the case-file that an assessment has ever been made by the domestic authorities of the necessity of cutting the applicant off from the rest of the inmate population, taking into account his individual circumstances, situation and behaviour.", "It appears that no formal decision to place the applicant in solitary confinement, stating the legal basis and the reasons for that measure or its duration, was ever issued. No such decision was given to the applicant or submitted to the Court by the Government. The applicant was therefore in complete ignorance as to why he had been placed in solitary confinement or for how long a period. Such a state of uncertainty undoubtedly increased his distress. The Court takes note in this connection of the conclusions of the Committee for the Prevention of Torture, which in its 2011 general report stated that the damaging effects of solitary confinement can be immediate and that they intensify the longer the measure lasts and the more indeterminate it is (see paragraph 55 above).", "It is deeply concerned by the fact that a person may be placed in solitary confinement without being offered at the very least some explanation for such isolation (see A.B. v. Russia, no. 1439/06, § 106, 14 October 2010). 80. Furthermore, the parties have not disputed the fact that the applicant’s physical and psychological aptitude for long-term isolation was never assessed.", "Nor does it appear from the Government’s submissions that domestic law enabled the applicant to institute proceedings by means of which he could have challenged the grounds for his solitary confinement and the necessity for its continuation. In view of the above, the Court considers that none of the guarantees described in paragraph 76 above was respected in the present case. 81. To sum up, the Court finds that the applicant was placed in solitary confinement without any objective assessment as to whether or not the measure in question was necessary and appropriate and with no procedural safeguards guaranteeing his welfare and the proportionality of the measure. The applicant’s solitary confinement therefore amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.", "In these circumstances, the Court does not need to consider separately the applicant’s arguments concerning the physical conditions of his detention (see A.B, cited above, § 112). 82. There has therefore been a violation of Article 3 of the Convention on account of the applicant’s detention in the detention centre for aliens from 18 April to 29 August 2014. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION IN THE POLICE STATION 83.", "The applicant further complained under Article 3 of the Convention about the conditions of his detention in the Krasnoselskiy District police station no. 9. 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 85. The Government submitted that the conditions of the applicant’s detention in the police station had been satisfactory and had complied with the domestic regulations. Taking into account the short duration of the applicant’s stay in the police station, the conditions of his detention were also compatible with Article 3 of the Convention.", "86. The applicant maintained his claims. 87. The Court reiterates that it has already examined the conditions of detention obtaining in police stations in various Russian regions and found them to be in breach of Article 3 (see Fedotov v. Russia, no. 5140/02, § 66‑70, 25 October 2005; Shchebet v. Russia, no.", "16074/07, §§ 86-96, 12 June 2008; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 69 et seq., 3 March 2011; and Ergashev v. Russia, no. 12106/09, §§ 128-34, 20 December 2011). It noted that cells in police stations were designed for short-term administrative detention not exceeding three hours. There was no provision for supplying detainees with food or drinking water, and toilet access was problematic.", "Being dark, poorly ventilated, dirty, and devoid of any of the amenities required for prolonged periods of detention, such as a toilet, a sink, and any furniture other than a bench, administrative-detention cells in police stations were therefore unacceptable for periods of detention longer than just a few hours. The Court, for instance, found a violation of Article 3 in a case where an applicant had been kept in an administrative‑detention police cell for twenty‑two hours (see Fedotov, cited above, § 68). 88. In the present case the Court finds the same deficiencies. The applicant was held in an administrative-detention police cell for two days despite the fact that it had been designed for detention not exceeding three hours.", "By its design, the cell lacked the amenities required for prolonged periods of detention. It did not have a toilet or a sink. It was equipped only with a bench, there being no bed, chair or table or any other furniture. Toilet access was restricted. The window was covered with a metal sheet blocking access to fresh air and daylight.", "89. It was disputed by the parties whether or not the applicant had been given food and drink. The Court notes that the Government did not submit copies of the police officers’ statements on which they relied to support their allegation that the applicant had been given food. Nor did they refer to any domestic provision requiring the police station to make arrangements for providing inmates of administrative‑detention cells with food or drinking water. Indeed, the Court has found on several earlier occasions that such inmates were not provided with food or water and that the possibility for their relatives to bring them food could not make up for the lack of the most basic necessities during his detention (see Fedotov, cited above, §§ 67 and 68; Shchebet, cited above, § 93; and Ergashev, cited above, § 132).", "90. In view of the above the Court considers that the conditions of detention in the Krasnoselskiy District police station no. 9 diminished the applicant’s dignity and caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. 91. There has accordingly been a violation of Article 3 of the Convention on account of the inhuman and degrading conditions of the applicant’s detention at the police station from 29 to 31 August 2014.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 93. The applicant claimed compensation in respect of non-pecuniary damage.", "He left the determination of the amount to the Court’s discretion. He also asked that the sums payable to him be transferred to the bank account of his representative Ms O. Tseytlina in view of his inability to open a bank account in his own name because of the lack of identity documents. 94. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. 95.", "The Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. It also grants the applicant’s request to have the sum paid to the account of Ms O. Tseytlina. B. Costs and expenses 96. Relying on legal fee agreements and invoices confirming the payment of the legal fees, the applicant claimed EUR 2,247 for the legal fees and postal expenses incurred before the domestic courts and the Court.", "He asked that the amount be paid to the bank account of Ms O. Tseytlina. 97. The Government submitted that the amounts claimed were excessive. 98. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, the applicant did not submit any proof of the postal expenses. The Court therefore rejects this part of the claim. As regards the legal fees, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,100 for costs and expenses under this head, plus any tax that may be chargeable to the applicant, to be paid into Ms O. Tseytlina’s bank account. C. Default interest 99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "V. RULE 39 OF THE RULES OF COURT 100. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not 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 for referral under Article 43 of the Convention. 101. 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 the Court takes a further decision in this connection. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares, the application admissible; 2. Holds, that the forcible return of the applicant to China would give rise to a violation of Articles 2 and 3 of the Convention; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Krasnoe Selo detention centre for aliens; 5. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Krasnoselskiy District police station no.", "9; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State and to be paid into the bank account of the applicant’s representative Ms O. Tseytlina: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction; 8. 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 or otherwise forcibly remove the applicant to China or any other country until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 29 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenAndrás SajóRegistrarPresident" ]

[ "THIRD SECTION CASE OF STECK-RISCH AND OTHERS v. LIECHTENSTEIN (Application no. 63151/00) JUDGMENT STRASBOURG 19 May 2005 FINAL 19/08/2005 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 Steck-Risch and Others v. Liechtenstein, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrL. Caflisch,MrC. Bîrsan,MrsM. Tsatsa-Nikolovska,MrsA. Gyulumyan,MrE.", "Myjer, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 14 February 2004 and 28 April 2005, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 63151/00) against the Principality of Liechtenstein lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Liechtenstein nationals, Mrs Maria Karolina Steck-Risch, Mr Anton Georg Risch, Walter Risch, Paul Arnold Risch and Mamertus Risch (“the applicants”), on 12 October 2000. 2. The applicants were represented by Mr W.L.", "Weh, a lawyer practising in Bregenz. 3. The applicants alleged, in particular, that one judge of the Constitutional Court lacked impartiality and that the Administrative Court failed to give them an opportunity to reply to the opposite party's comments on their appeal. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 10 October 2002 the Court declared the application partly inadmissible and communicated the above complaints plus one further complaint to the respondent Government. By a decision of 14 February 2004 the Court declared the application partly admissible. 6.", "On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1926, 1927, 1930, 1937 and 1939 respectively. The first and second applicants live in Vaduz, the third applicant lives in Schaan and the fourth and fifth applicants live in Triesen. 9. The applicants, who are siblings, were joint owners (one-fifth each) of two adjacent plots of land in Schellenberg, registered under files nos.", "55/IV and 67/IV of the Schellenberg land register, which they inherited in 1983. 10. On 29 September 1972, when the property at issue still belonged to the applicants' father, the Schellenberg municipality issued a provisional area zoning plan (Zonenplanfestsetzungsbeschluss) designating the two parcels of land as non-building land. Before that, the property was not covered by any area zoning plan. 11.", "On 14 May 1980 the Schellenberg Municipal Council (Gemeinderat) dismissed an appeal by the applicants' father. 12. On 24 November 1981 the area zoning plan (Zonenplan) was approved by the Liechtenstein Government. 13. The applicants' request for a change of the designation of their land into building land (Bauland), dated 24 August 1994, was to no avail.", "14. On 15 July 1997 the applicants claimed compensation of 4.9 million Swiss Francs (CHF) for damage allegedly incurred due to the designation of their land as non-building land. They claimed that that designation amounted to de facto expropriation. 15. On 2 June 1998 the Liechtenstein Government, sitting in camera, dismissed their claim.", "They found that the impugned designation of the applicants' property, not previously subject to any area zoning plan, as non-building land did not amount to a de facto expropriation conferring a right to compensation. In particular, the applicants' land had not been opened up for building, nor had there been any plans of the municipality to prepare it for development. 16. On 18 June 1998 the applicants filed an appeal against the above Government decision with the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz). They claimed, inter alia, that the elements on which the Government had based their decision had not been established in adversarial proceedings.", "In particular, the applicants alleged that they had not been given an opportunity to present their views on the question of whether or not their land had been opened up for development purposes, which, in fact, had been the case. Thus, they requested that the parties be heard on the matter and that an inspection of the property be carried out. Further, they requested that the Administrative Court obtain the minutes of the Schellenberg Municipal Council's meeting of 5 July 1995, which showed that the municipality had considered the possibility of including their property in a building area. 17. On 21 October 1998 the Schellenberg municipality, as respondent, filed submissions (Gegenschrift) requesting the Administrative Court to dismiss the appeal.", "They referred to the reasons underlying the designation of the applicants' property as non-building land and claimed that the applicants' predecessor had not appealed against the area zoning plan. Further, the municipality contested the applicants' assertion that the said property had been opened up. Contrary to the applicants' assertions, the adjacent parcels had equally been designated as non-building land. The municipality also submitted the minutes referred to by the applicants. The municipality's comments were not served on the applicants.", "18. On 25 June 1999 the Administrative Court, sitting in camera, dismissed the applicants' appeal. The Court was presided over by judge G.W. 19. In its decision, the Administrative Court described the conduct of the proceedings so far, including a detailed summary of the comments submitted by the Schellenberg municipality, noting that the conditions for compensation were not met, inter alia because the applicants' property had not been opened up.", "The neighbouring parcels were also undeveloped. When the zoning plan was issued, the applicants could not legitimately expect a designation of their property as building land. Pointing out that the applicants had filed very detailed written submissions, the Administrative Court found that they had been given sufficient opportunity to submit their arguments and evidence. 20. On 7 July 1999 the applicants filed a complaint with the Constitutional Court (Staatsgerichtshof) under Section 23 of the Constitutional Court Act (Staatsgerichtshofsgesetz), claiming that the principle of equality of arms had been infringed in that the Administrative Court had based its decision on new submissions made by the Schellenberg municipality (concerning the issue of whether the applicants' predecessors had appealed against the zoning plan and concerning the question of whether the applicants' property had been opened up), to which they had had no opportunity to reply.", "They also complained about procedural defects, in particular that the Administrative Court had failed to hear them and to carry out an inspection of the property at issue. In sum they asserted that the Administrative Court's decision violated their right to property. 21. On 10 February 2000 the Constitutional Court informed the applicants of the composition of the panel of five judges that would examine their case in private on 29 February 2000. 22.", "Subsequently, on 21 February 2000, the applicants filed a challenge for bias against H.H., one of the panel judges, claiming that he was to be disqualified on account of his partnership in a law firm (Kanzleigemeinschaft) with G.W., i.e. with the presiding judge of the proceedings before the Administrative Court. 23. On 29 February 2000 the Constitutional Court, sitting in camera, dismissed the applicants' complaint, confirming that the designation of their property as non-building land did not amount to a de facto expropriation requiring compensation. 24.", "Bearing in mind that the principle of equality of arms was a basic element of the fairness of proceedings, it agreed in principle with the applicants' argument that they should have been afforded an opportunity to be informed of and to comment upon the Schellenberg municipality's observations in reply to their appeal. In that regard, the Court observed that the submissions in issue had contained new information, in particular, the alleged fact that the applicants' predecessor had never filed an objection against the area zoning plan. If established, that fact would have had a negative effect on the applicants' legal position. However, the Constitutional Court noted that this submission had not played any role in the Administrative Court's decision. Thus, no prejudice had resulted from this procedural deficiency.", "Considering these special circumstances as well as the fact that the proceedings as a whole had been adversarial, the Constitutional Court concluded that the applicants' procedural rights had not been impaired. 25. As far as the applicants' allegations of bias were concerned, the Constitutional Court, referring to an academic commentary on Liechtenstein administrative law, recalled that a country of the size of Liechtenstein had limited human resources in the public sector. It stressed that, in such circumstances, questions of replacement should be dealt with cautiously if one did not wish to jeopardise the proper functioning of the Liechtenstein authorities. The court pointed out that, by virtue of section 6 of the Constitutional Court Act, a judge of the Constitutional Court, being at the same time a judge at another Liechtenstein court had to be disqualified from proceedings where a complaint concerned a decision issued by that court.", "However, the Constitutional Court found that the same did not apply in cases where a judge was merely acquainted with a judge who had taken part in the impugned decision. Moreover, it noted that, in a State based on the rule of law, the quashing of a decision by the Constitutional Court was nothing unusual and did not cast doubt on the professional skills of the judges involved in that decision. In those circumstances, the Court found that the applicants' fears of bias could not be considered to be objectively justified. 26. The Constitutional Court's decision was served on the applicants on 14 April 2000.", "II. RELEVANT DOMESTIC LAW A. Composition of the Constitutional Court 27. Section 2 of the Constitutional Court Act (Staatsgerichtshofgesetz) concerns the composition of the Constitutional Court. It provides as follows: “1.", "The Constitutional Court shall consist of the President, his alternate, four additional members and their alternates, all of whom serve part-time. 2. The President, the Vice-President, two additional members and their alternates must be native citizens of Liechtenstein; at least two members and their alternates must be versed in the law.” 28. Section 4 of the Constitutional Court Act regulates the election of the Constitutional Court's judges. So far as material, it reads as follows: “1.", "The members of the Constitutional Court and their alternates shall be elected by Parliament for a term of five years. 2. If, for whatever reasons, the State Court cannot be properly constituted even with the use of alternates, the necessary supplementary elections shall be held for the case in question.” B. Rules on challenging judges for bias 29. Section 7 of the National Administrative Justice Act (Landesverwaltungspflegegesetz) provides that officials, including the members of the Administrative Court, may be challenged, inter alia, in the following cases: “(b) if the official in question ... can expect a substantial advantage or disadvantage depending on the outcome of the administrative matter; ... (d) if there is any other sufficient reason to doubt the impartiality of the official in question, in particular if the official in question is too close a friend or foe of one of the parties to a legal or administrative dispute.” 30.", "By virtue of section 6 (3) of the Constitutional Court Act, these rules also apply to the judges of the Constitutional Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. The applicants raised complaints under Article 6 § 1 of the Convention, which insofar as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 1. The parties' submissions 32.", "The applicants complained that H.H., one of the judges of the Constitutional Court deciding on their complaint against the Administrative Court's decision, lacked impartiality as he and G.W., who had presided over the proceedings before the Administrative Court, were partners in a law firm. 33. Referring to the Court's case-law, the applicants emphasised that even appearances are of importance where a judge's objective impartiality was at stake. It was therefore not decisive whether judges G.W. and H.H.", "only shared offices, as submitted by the Government, or whether they lived on common earnings, as they had initially alleged. What was decisive was that they were colleagues in the same law-office and, thus, had a long-established personal relationship and appeared as a unit to the outside. In these circumstances, the applicants had an objective justification to fear that Constitutional Court judge H.H. might have discussed the case with judge G.W. at an earlier stage or that he might hesitate to overturn the Administrative Court's decision in which his colleague sat as president as such a decision could have had negative effects for the reputation of the law-office.", "34. As far as the Government argued that disqualification of judges should not be assumed lightly, the applicants replied that this was more important in a dispute between private individuals. However, in the present case the applicants were opposed to the State authorities. It was therefore all the more important to avoid the participation of a judge who lacked impartiality. The possible scarcity of qualified human resources in a small State could not justify such a shortcoming.", "Apparently, there would not have been any difficulty to replace judge H.H. with an alternate judge. 35. The Government contended that there was nothing to indicate that judge H.H. lacked the necessary impartiality.", "They argued, in particular, that under section 7 of the National Administrative Justice Act a judge may be challenged if he is “too close a friend of one of the parties to the dispute”, while the fact the he is a friend or an acquaintance of another judge who has decided on the dispute is not considered a ground for bias. The additional argument that judge H.H. was a partner in the same law-office as judge G.W., who had presided over the proceedings before the Administrative Court, did not affect that position, all the more so as judges H.H. and G.W. were only sharing offices while each of them dealt with his own cases and earned his own income.", "36. The fact that H.H. and G.W. were sharing offices could not justify the applicants' fears of bias. In their capacity as judges they were bound by professional secrecy and therefore prevented from discussing a given case.", "In a State governed by the rule of law it was a normal feature of the judicial system that the Constitutional Court could set aside the judgment of a lower court. Such a decision would not have had any negative repercussions on the law firm in which H.H. and G.W. were partners. 37.", "The Government conceded that it would have been possible to replace judge H.H. with one of the two alternate judges having Liechtenstein citizenship, or if they had likewise been unable to sit, with an ad hoc judge appointed by Parliament pursuant to section 4 § 2 of the State Court Act. However, the disqualification of a judge should not be assumed lightly. The right to have one's case dealt with by a properly constituted court could be violated not only if a disqualified judge participated in the decision but also if a judge was disqualified without sufficient grounds. In the present case, there was no appearance of a lack of impartiality and the recourse to an alternate or ad hoc judge who was necessarily less experienced than judge H.H., a senior member of the Constitutional Court, was therefore not justified.", "2. The Court's assessment 38. According to the Court's constant case-law, the existence of impartiality must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, for instance, Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII; Pétur Thor Sigurđsson v. Iceland, no. 39731/98, § 37, ECHR 2003-IV; Puolitaival and Pirttiaho v. Finland, no.", "54857/00, § 41, 23 November 2004). 39. The Court notes at the outset that the complaint is to be seen against the background of a part-time judiciary operating in a small country like Liechtenstein, where the same persons perform double functions as judges, on the one hand, and as practicing lawyers, on the other. The Court has no reason to doubt that legislation and practice on the part-time judiciary can be framed so as to be compatible with Article 6. As usual in proceedings originating in an individual application, the Court will confine itself, so far as possible, to an examination of the concrete case before it (see Wettstein, cited above, § 41).", "40. The subjective impartiality of a judge must be presumed until there is proof to the contrary (ibid, § 43). The applicants have not adduced any evidence to cast doubt on judge H.H's personal impartiality. 41. What is at stake, therefore, is the objective impartiality of judge H.H.", "Here it must be determined whether, quite apart from the judge's conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. This implies that, in deciding whether in a given case there is legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (Wettstein, cited above, § 44; Pétur Thor Sigurđsson, cited above, § 37).", "42. In the present case, judge H.H., as a member of the Constitutional Court, was called upon to decide on the applicants' appeal against the Administrative Court's judgment, in which G.W., who was his law-office colleague, had acted as presiding judge. 43. In the Wettstein case, the Court's finding that the applicant's fear that judge R. lacked the necessary impartiality was objectively justified was mainly based on the dual role of R: there was an overlapping in time of two sets of proceedings in which R. had exercised the function of judge in one case and that of legal representative of the party opposing the applicant in the other. Whereas the fact that R. and one other judge were also office colleagues of another lawyer who had represented the party opposing the applicant in another set of proceedings was considered to be of minor importance (ibid., §§ 47- 48).", "44. The Court notes at the outset that neither judge H.H. nor judge G.W. exercised any dual functions in the present case. The applicants based their allegation that judge H.H.", "lacked impartiality on the simple fact that both judges were partners in their capacity as practising lawyers. 45. In the Court's view, the nature of this partnership is of importance when determining whether the applicants' fears were objectively justified. It notes that, according to the Government, H.H. and G.W.", "merely shared their office premises but did not obtain a common income. The applicants who had initially claimed that H.H. and G.W. were living of common earnings, did not contest this. They rather argued that the mere fact that they were office colleagues created an appearance justifying their fear that H.H.", "lacked impartiality. 46. Although appearances are of importance where a judge's objective impartiality is at stake (Pétur Thor Sigurđsson, cited above, § 37), the Court has to subject the specific circumstances of the case to careful scrutiny. Given that H.H. and G.W.", "only shared office premises, the Court considers that their partnership did not involve any professional or financial dependence that may cast doubt on H.H. 's impartiality. This distinguishes the present case from a case in which the court found a violation of Article 6 § 1 as the judge in question had professional and financial ties with the party opposing the applicant: He performed duties as an appeal court judge and those of an associate professor in receipt of an income from the university which was the applicant's opponent in the proceedings at issue (Pescador Valero v. Spain, no. 62435/00, § 27, ECHR 2003‑VII). 47.", "The Court further points out that doubts as to a judge's independence and objective impartiality may arise where that judge is, in a context outside the proceedings, a subordinate of one of the parties (see Sramek v. Austria, judgment of 22 October 1984, Series A no. 84, p. 20, § 42; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, p. 282, §§ 75-76). No such relationship of subordination existed in the present case. G.W and H.H. were equal and independent partners in their law-office.", "The Court is not convinced either by the applicants' argument that it might have had negative repercussions on their law-office, had the Constitutional Court quashed the Administrative Court's judgment. The quashing of a lower court's decision by a supreme jurisdiction is a normal feature in any legal system, which does not cast doubt on the competence of the judges who gave the decision. 48. Finally, there is nothing to indicate that the H.H. and G.W.", "were particularly close friends, in other words, that their relationship went beyond a professional relationship as office colleagues. Nor is there any indication that, despite their obligation to observe professional secrecy as judges, they had shared any substantial information concerning the applicants' case which would have led judge H.H. to reach a preconceived view on the merits of the case. 49. In sum, having particular regard to the lack of any form of dependence between judges G.W.", "and H.H., be it professional, financial or hierarchical, the Court finds that the mere fact that they were sharing offices, does not suffice to justify objectively the applicants' fears that judge H.H. lacked impartiality. 50. Accordingly, there has been no violation of Article 6 § 1 in this respect. B.", "The alleged breach of the principle of equality of arms 51. The applicants submitted that the principle of equality of arms had been infringed in that the Schellenberg municipality's comments on their appeal against the Liechtenstein Government's decision of 2 June 1998 had not been communicated to them. 52. They contended in particular that the Administrative Court's decision not only gave a detailed summary of the comments of the Schellenberg municipality but also relied on them in its establishment of the facts, in particular regarding the question of whether the property at issue was opened up for construction. In any case, the Schellenberg municipality was the respondent in the proceedings before the Administrative Court and its comments were of vital interest to the applicants.", "53. The Government asserted that the present case had to be distinguished from Ziegler v. Switzerland (no. 33499/96, 21 February 2002). According to the Constitutional Court's findings, the Administrative Court had not relied on the submissions of the Schellenberg municipality. Thus, this procedural irregularity did not entail any prejudice for the applicants.", "54. The Court reiterates that, in civil proceedings, the principle of equality of arms implies that each party must be afforded a reasonable opportunity to present his or her case - including evidence – under conditions that do not place him/her at a substantial disadvantage vis-à-vis his/her opponent (see Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 33). 55. The concept of a fair trial, of which equality of arms is one aspect, implies the right for the parties to have knowledge of and to comment on all evidence adduced or observations filed (see, for instance, Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 108, § 24, and Ziegler, cited above, § 33).", "56. In the present case, the Schellenberg municipality, being the opposing party in the compensation proceedings at issue, filed comments on the applicants' appeal to the Administrative Court, requesting it to dismiss that appeal. It is not contested that these comments were not served on the applicants and that they had no opportunity to reply to them. This deficiency it not remedied by the fact that the applicants could complain to the Constitutional Court, as the latter does not carry out a full review of the case. 57.", "The Court is not convinced by the Government's argument that, in contrast to the Ziegler case (cited above), the Administrative Court did not rely on these comments. It is true that that Court did not rely on the municipality's assertion that the applicants' father had not filed an objection against the area zoning plan. However, it did have regard to its submissions on the question of whether the applicants' land was opened up for building. In any case, the municipality's observations contained a reasoned opinion on the merits of the applicants' appeal. The Court has repeatedly held that in such a situation the effect which the observations actually had on the judgment is of little consequence.", "What is particularly at stake here is the litigants' confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (Nideröst-Huber, cited above, p. 108, §§ 27, 29; Ziegler, cited above, § 38). 58. In the present case, respect for the right to a fair trial, guaranteed by Article 6 § 1 of the Convention, required that the applicants be given an opportunity to have knowledge of and to comment on the observations submitted by the opposing party, namely the Schellenberg municipality. However, the applicants were not afforded this possibility. 59.", "Consequently, there has been a violation of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 61.", "Under the head of pecuniary damage the applicants submitted that their land would be worth 8,6 million Swiss francs (CHF), if it were designated as building land, which – in their contention – would be the case had the violations of the Convention not occurred. They claimed CHF 2,236,000 as compensation for the loss of utility value since the beginning of the proceedings at issue. The applicants did not allege that they suffered any non-pecuniary damage. 62. The Government contested the applicants' claim for pecuniary damages in their entirety.", "They argued that it was not transparent how the applicants calculated the sum claimed as compensation for alleged pecuniary damage. In any case, there was no causal link between the violations at issue and the pecuniary damage claimed. 63. The applicants replied that even if one accepted the lack of a causal link, which they did not, they had suffered pecuniary damage as a result of the delay and the uncertainty as to the designation of their property, caused by proceedings which were not in conformity with the Convention. 64.", "The Court observes that there is no causal link between the breaches complained of and the violation found. It holds that it is not called upon to speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 (see, for instance, Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72). Consequently, no award is made under the head of pecuniary damage. B. Costs and expenses 65.", "The applicants claimed CHF 23,906.40 for costs incurred in the domestic proceedings, composed of CHF 3,640 for fees of the Administrative Court and CHF 20,266,40 for cost and expenses incurred before the Constitutional Court. Moreover, the applicants claimed CHF 36.291,10 for costs incurred in the Convention proceedings. The latter were based on a lump sum agreement, fixing CHF 18,587.10 as payment for the lodging of the application, CHF 8,852 for the observations in reply and CHF 8,852 for the proceedings on the merits. The applicants' emphasised that the case was complex and that its preparation necessitated extensive research. 66.", "The Government contended that the applicants' claim was excessive. As to the costs of the domestic proceedings, the Government asserted that the costs of the proceedings before the Administrative Court were not incurred to prevent the alleged violations of the Convention. The costs incurred before the Constitutional Court were based on an excessive estimate of the value of the property at issue. In the Government's view a total amount of CHF 4,703.80 would be appropriate for this part of the proceedings. However, a reduction should be made as the proceedings before the Constitutional Court did not exclusively relate to the alleged violations of the Convention.", "Secondly, as to the costs claimed for the Convention proceedings, the Government argued that, again, the claim was based on an excessive estimate of the value in dispute and that moreover, as the applicants had agreed to pay a lump sum for their representation, it was not possible to verify the details of their counsel's activity. In any case only two complaints out of the initial five were declared admissible. 67. In accordance with its case-law, the Court will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Wettstein, cited above, § 56). 68.", "The Court agrees with the Government that the costs of the proceedings before the Administrative Court were not incurred to prevent the violation found. As to the costs of the proceedings before the Constitutional Court, they were only in part incurred in order to complain about the violation of the principle of equality of arms. Moreover, the costs claimed are excessive. The Court considers an amount of EUR 3,000 as appropriate. 69.", "As to the costs claimed for the Strasbourg proceedings, the Court finds them excessive. It notes that only two of the complaints raised were declared admissible. It therefore awards EUR 7,000 in respect of the Convention proceedings. 70. In sum, the Court awards EUR 10,000 for costs and expenses.", "C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. D. Further requests 72. The applicants requested the Court, as part of their just satisfaction claim, to order a re-opening of the domestic proceedings. 73.", "The Court reiterates that it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (see, among many others Assanidze v. Georgia, no. 71503/01, § 202, ECHR 2004-II). Only in very exceptional circumstances has the Court ordered individual measures of redress (ibid, §§ 202-203). No such circumstances pertain in the present case.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 6 § 1 of the Convention as regards the alleged lack of impartiality of Constitutional Court judge H.H. ; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in that there was a breach of the principle of equality of arms; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 19 May 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. Zupančič RegistrarPresident" ]

[ "FOURTH SECTION CASE OF NINA KUTSENKO v. UKRAINE (Application no. 25114/11) JUDGMENT STRASBOURG 18 July 2017 FINAL 18/10/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nina Kutsenko v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Ganna Yudkivska, Faris Vehabović,Egidijus Kūris, Georges Ravarani,Marko Bošnjak, Péter Paczolay, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 27 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 25114/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Nina Ivanivna Kutsenko (“the applicant”), on 17 April 2011. 2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.", "3. The applicant alleged that the domestic authorities had been responsible for and had failed to effectively investigate the death of her son. 4. On 26 June 2015 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1949 and lives in Vyshneve, the Kyiv region. A. Background 6. The applicant’s son (born in 1972), V.K., had a long history of chronic alcoholism and opium addiction.", "He also suffered from a number of chronic diseases (see paragraph 51 below). 7. On 13 August 2001 an officer of the Fastiv railway station police, K.M., apprehended him on suspicion of a drugs-related offence. 8. In February 2002 V.K.", "complained to the prosecution authorities that for more than a year he had been suffering from psychological pressure and physical ill-treatment by the Fastiv railway station police officers. It is not clear whether there was any follow-up to that complaint. The fact that V.K. had raised it was established by the domestic courts during the subsequent criminal proceedings against K.M. The trial court dealing with that case stated in its judgment that it had inspected the documents regarding the above-mentioned events on 27 February 2007 (see paragraph 78 below).", "9. From 17 June to 1 July 2003 the applicant’s son was treated for opium addiction in the Kyiv regional hospital. There is no information in the case file whether that treatment was successful and in what condition V.K. was discharged from the hospital. B. V.K.’s disappearance and related events in August 2003 10.", "On 13 August 2003 V.K. left home and never returned. 11. On 18 August 2003 the applicant reported his disappearance to the Vyshneve town police. 12.", "On the same date an unidentified unconscious man was found in Vasylkiv, the Kyiv region. He was taken by ambulance to the local hospital with a preliminary diagnosis of “poisoning by unknown substance”, which was not, however, confirmed by laboratory tests. 13. On 19 August 2003 the man regained consciousness and identified himself as V.K. As subsequently stated by many witnesses, he had no visible injuries at that time.", "The only available information about V.K.’s treatment is that his condition improved considerably. 14. On 21 August 2003 an official of the Vasylkiv town police informed his counterparts in Vyshneve that the applicant’s son had been found and that he was in hospital. There was no follow-up to the message and it was not passed on to the applicant. 15.", "On 22 August 2003 V.K. left hospital without authorisation. 16. Shortly after midnight on 25 August 2003 he was found injured and unconscious at Fastiv railway station (further details are provided in paragraph 20 below). 17.", "After V.K.’s subsequent death (see paragraph 36 below), the domestic authorities tried to establish what had happened to him between the two above-mentioned events. It took them five years to establish some of the facts (see paragraph 74 below). 18. In that regard, several people who had been detained in the police unit at Fastiv railway station on the evening of 22 August 2003 stated that they had witnessed the following events. At about 8 p.m. two police officers had brought in an apparently drunk man (subsequently recognised as V.K.)", "and placed him in a cell. As V.K. had protested loudly against his detention, one of the officers, who already was at the police station when V.K. had arrived (subsequently recognised as K.M. – see paragraphs 7 and 8 above), had entered his cell and hit him in the face with a rubber truncheon.", "V.K. had fallen down and his nose had started bleeding. K.M. had then kicked him twice, on the head and torso. The two officers who had apprehended V.K.", "joined K.M. From that moment the other inmates chose not to watch the beating but heard it going on. At about 6 a.m. on 23 August 2003, after the other detainees had been taken out for various procedural acts, V.K. had remained in the police unit, lying motionless on the floor. By noon that day he was no longer seen there.", "19. The time and circumstances of V.K.’s departure from the police unit and his arrival at the railway station have never been established. None of the police unit’s documents contained any information about his detention. The two officers who apprehended him and subsequently participated in his ill-treatment have never been identified. 20.", "About thirty minutes after midnight on 25 August 2003, supposedly after a telephone call from a passer-by whose identity remained unknown, K.M. called an ambulance for an unidentified, unconscious man (later identified as V.K.) found at the railway station. The incident was not mentioned in the police unit’s log. When the ambulance arrived, K.M., who was waiting for it, made no mention of knowing V.K.", "or of having any information about him. 21. The applicant’s son was taken to the State-run Fastiv Central Town Hospital (“the Fastiv Hospital”; see paragraphs 25-36 below). 22. The case file contains fragmentary and contradictory information as to whether the police showed any interest in V.K.", "thereafter. As stated in a letter from the chief doctor to the applicant of 25 January 2005, the nurse on duty had immediately informed the Fastiv town police by telephone about the arrival of a man with injuries. Subsequently, on 13 August 2005 there was a confrontation between that nurse and the police officer who had been on duty that day, with the police officer denying any such telephone call. It is not clear in what context the above confrontation was conducted. Furthermore, two nurses stated during questioning in February 2010 (also in an unclear context) that at about 7 a.m. on 25 August 2003 two police officers had arrived at the hospital to see “the newly arrived patient with injuries”.", "Given the considerable lapse of time, the nurses were unable to recognise the officers or give any further details. However, none of the four patients with whom V.K. had shared his ward remembered seeing the police. 23. On 28 August 2003 the applicant, who remained unaware of the whereabouts of her son, once again asked the police to look for him.", "24. On the same day the police officer K.O., who was in charge of the search at Vyshneve police, issued a report on questioning Vasylkiv Hospital staff, which said V.K. had been discharged on 22 August 2003 in good health. As subsequently established (see paragraph 61 below), K.O. did not in fact talk to the hospital’s staff and forged the report.", "Relying on that document, he issued a decision refusing to open a criminal case concerning V.K.’s disappearance, which was approved by his superior, A.V. (see paragraph 62 below). C. V.K.’s treatment and death in Fastiv Hospital 25. At about 2.35 a.m. on 25 August 2003 the applicant’s son was taken by ambulance to Fastiv Hospital, where he was registered as an unidentified person. He was dirty and his wounds were covered with scabs.", "26. He was examined by the admissions doctor, a traumatology doctor and the anaesthesiologist on duty. They diagnosed him as having a closed craniocerebral injury and cerebral contusion and contused wounds to the head. As subsequently stated by numerous doctors in the context of the criminal proceedings against their colleague P.V. (see paragraphs 63-73 below), an X-ray examination of V.K.’s skull was carried out and did not reveal any fractures.", "However, there were no X-rays in his medical file and none of the hospital’s staff could explain their disappearance. 27. At about 9 a.m. on 25 August 2003 V.K. recovered consciousness, but hardly responded to any attempts of contact. He did not remember who he was.", "For most of the time his mental state was blurred and he mumbled incomprehensibly. 28. On the same day he was examined by a neuropathologist, who carried out a lumber puncture. It indicated elevated intracranial pressure. The doctor prescribed some drugs for V.K.", "via intravenous drip, but it appears that he received only glucose, which was administered on 29 August 2003 (see paragraph 34 below). 29. It is not clear what medicine was administered to V.K. during his stay in Fastiv Hospital. It appears that he was prescribed anti-edema drugs and two different types of antibiotic.", "As stated by numerous patients, including those sharing the ward with V.K., all medications were at their own expense. Furthermore, none of the nurses questioned in the course of the criminal proceedings against P. (see paragraphs 63-73 below) was able to say what medication the hospital had had at its disposal to administer to patients free of charge. 30. On 26 August 2003 the traumatology doctor P.V. was appointed to oversee V.K.’s treatment and examined him.", "On that day and the next the applicant’s son was also examined by the head of the traumatology department and a neuropathologist. 31. On 28 August 2003, following a serious deterioration in V.K.’s condition, a panel of six of the hospital’s doctors examined him and it was decided to consult a neurosurgeon. 32. A neurosurgeon from Kyiv Regional Clinical Hospital examined V.K.", "that evening and stated that he needed a computerised brain tomography scan for a proper diagnosis. As there was no such machine at Fastiv Hospital he needed to be transferred to the regional hospital. 33. However, for unknown reasons that recommendation was not followed. P.V.", "stated in the course of his trial (see paragraphs 63-73 below) that, firstly, he had considered V.K. to be too ill to be moved and, secondly, that it had been impossible to overcome all the administrative formalities needed to obtain the required vehicle, for which he blamed his superiors. 34. On 29 August 2003 V.K. was given an intravenous infusion of glucose and his condition improved slightly.", "That was the only intravenous infusion carried out. 35. On 2 September 2003 V.K. slipped into a coma. Although the change in his condition was brought to their attention, the medical staff did not react.", "V.K. was not examined by his doctor or any other specialist. He was kept in the same ward in the traumatology department and no resuscitation measures were undertaken. 36. He died at 6.20 p.m. on 3 September 2003.", "D. Investigation into the death of the applicant’s son and related events 37. On 4 September 2003 a forensic medical expert, G.S., conducted an autopsy of V.K. (documented as an unidentified person) and issued a preliminary death certificate. He stated that V.K. had died of toxic hypoxic encephalopathy (a brain dysfunction caused by oxygen deprivation resulting from toxic exposure) complicated by swelling of the brain on a background of proliferative leptomeningitis (inflammation of the tissues surrounding the brain), pericarditis (inflammation of the sac surrounding the heart), and chronic hepatitis.", "The expert also reported some minor injuries but stated that they had had nothing to do with his death. He did not mention the numerous tattoos on V.K.’s body (see also paragraph 48 below). 38. On 5 September 2003 the chief doctor at Fastiv Hospital wrote a letter to the Fastiv town police informing them that an unidentified man with head injuries had been brought to the hospital on 25 August 2003 and that he had died on 3 September 2003. The hospital’s administration therefore requested that the police identify that person.", "39. On 9 September 2003 the applicant found out about her son’s death from unspecified sources and immediately went to the Fastiv police. However, V.K. had already been buried in Fastiv as an unidentified person earlier that day. The applicant identified him from photographs of his body.", "According to her, “he was all dirty, shaggy, wizened, and his hair was covered with dried blood”. 40. On 12 September 2003, at the applicant’s wish, the body was reburied in Vyshneve. She had the coffin opened so she could see her son. According to her, his body bore signs of torture.", "She submitted, in particular, that there were numerous injuries, including handcuff marks on his wrists and traces of electrical burns between the fingers. The applicant also alleged that one of her son’s tattoos appeared to have been “burnt off”. It appears that she complained to the prosecution authorities about the above matters. 41. On 10 October 2003 G.S.", "issued a post-mortem examination report reiterating his earlier findings (see paragraph 37 above). 42. On the same date the Prosecutor General’s Office (“the PGO”) opened a criminal case in respect of the suspected murder of V.K., however, no suspects were identified. That case was subsequently joined to and eventually severed from numerous other related criminal proceedings (see the sections below). 43.", "On 29 October 2003 G.S. issued a forensic examination report with similar conclusions as before. He also stated that V.K.’s medical condition had been caused by lengthy alcohol and drug intoxication. As regards his injuries, they were insignificant and might have resulted from his falling on a hard surface. 44.", "On 30 October 2003 the applicant took her son’s clothes and shoes from Fastiv Hospital and handed them over to the prosecution (the exact name of the authority is not legible in the copy of the document concerned). The clothes were covered with stains which looked like blood and the shoes had no laces. Given that removing the shoelaces of detainees was a well-known police practice, the applicant suspected that her son had been detained and asked the authorities to investigate that possibility. 45. Forensic immunological examinations of the clothes and shoes, which were carried out on 5 December 2003 and 1 July 2005, established, respectively, that the stains were blood and that it could have been V.K.’s.", "46. The investigation was entrusted to various prosecution and law‑enforcement authorities at different times: the town prosecutor’s offices in Fastiv, Vasylkiv and Bila Tserkva, the Kyiv Regional Prosecutor’s Office and the PGO. It was discontinued and resumed on many occasions. Overall, from 2003 to 2016 the investigator in charge of the case was changed at least twenty times. 47.", "On 15 October 2004 V.K.’s body was exhumed on the PGO’s order. 48. On 15 November 2004 a forensic medical expert (S.A.) completed a report after examining the body. He documented the following injuries: a fracture of the nose, three wounds on the right side of the head, an unspecified number of haematomas in the soft tissues under the scalp and on the face, and three haematomas under the pericranium. All the injuries had been inflicted by blunt objects, possibly by hands and/or feet, without further specification being possible.", "The report also noted large tattoos on the arms and shoulders. 49. According to the applicant, the forensic examination also found that the left kidney, the suprarenal glands and the pancreatic gland were missing from her son’s body. The expert report stated in that regard: “In the place where the left kidney should be is a greyish-brown mass resembling a kidney in texture. [...] It has not been possible to identify secretions from the suprarenal glands or the pancreatic gland.” 50.", "The mass resembling a kidney was taken for a forensic histological analysis, which did not discover anything of note. S.A. was asked during G.S.’s subsequent trial whether any organs were missing from the body and he replied in the negative. 51. Between 2004 and 2009 numerous forensic medical examinations were carried out on the basis of the material in the case file (at least six). They found that although, as established by the forensic histological examinations, V.K.", "had been suffering from various diseases (namely chronic leptomeningitis, chronic encephalopathy, granular myocardial dystrophy, interstitial hepatitis with the first signs of cirrhosis, granular kidney degeneration, diffuse proliferative nephritis and chronic bronchitis), none of them, either taken separately or together, could have caused his death. It was eventually established that the direct cause of death had been swelling of the brain and meninx, which had blocked the circulation of blood in the brain. Only a computerised brain tomography could have diagnosed that condition while V.K. was still alive, but that had not been done. The experts held that the fatal brain injuries could have resulted from him being beaten.", "It was stated in that connection that he had sustained at least eight blows to the head from blunt objects (possibly a rubber truncheon, fists and/or feet). At the same time, it was impossible to establish precisely the nature and scope of all the injuries to V.K.’s head given the omissions and deficiencies of the post-mortem examination. Details of additional forensic medical examinations, carried out in 2010 and 2012, are provided in paragraphs 65-66 and 81 below. 52. On 21 December 2008 the investigator in charge of the case inspected V.K.’s cell at Fastiv railway station police unit and took several samples from the walls and floor (see paragraph 75 below for the context of that investigative measure).", "A number of forensic immunological examinations were carried out in 2008, 2009 and 2010. They found that the samples contained traces of blood, which could have come from the applicant’s son. 53. On 6 December 2012 an investigator at Bila Tserkva City Prosecutor’s Office (it is not known when and in what circumstances the investigation had been handed over to that authority) made an entry in the Unified Register of Pre-Trial Investigations regarding an investigation into abuse of office by two unidentified police officers on account of V.K.’s ill‑treatment on 22 August 2003. Such an entry was a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure, which had come into effect on 19 November 2012.", "The case was transferred to the Kyiv Regional Prosecutor’s Office on 10 September 2013. 54. There is no information in the case file about further developments in the investigation. According to the Government’s observations, it was still ongoing as of September 2016. E. Criminal proceedings against G.S.", "(the forensic medical expert who conducted the autopsy) 55. On 7 April 2005 the PGO opened a criminal case against the forensic medical expert G.S. on suspicion of negligence. Further charges were subsequently brought against him (see below). 56.", "On 5 May 2010 the Kyyevo-Svyatoshynskyy District Court (“the Kyyevo-Svyatoshynskyy Court”) found G.S. guilty of abuse of office and forgery in office leading to grave consequences and of delivering a knowingly false expert conclusion. More specifically, the trial court held that the expert had knowingly given false data on the cause of V.K.’s death, had failed both to collect all the requisite tissue samples and to carry out a number of essential analyses. However, it acquitted G.S. of concealing a serious crime.", "He was also exempted from punishment for forgery and a false expert conclusion as those charges had become time-barred. He was sentenced on the charge of abuse of office to three years and six months’ imprisonment and a three-year ban on holding expert positions. The Kyyevo-Svyatoshynskyy Court allowed a civil claim by the applicant in part. It awarded her 1,851 Ukrainian hryvnyas (UAH; at the time equivalent to 175 euros (EUR)) in respect of pecuniary damage and UAH 10,000 (about EUR 950) in respect of non-pecuniary damage, to be paid by G.S. In addition, the applicant was awarded UAH 50,000 (about EUR 4,700) in respect of non-pecuniary damage, to be paid by the Kyiv Regional Bureau of Forensic Medical Examinations.", "57. On 18 August 2010 the Kyiv Regional Court of Appeal (“the Regional Court of Appeal”) allowed an appeal by G.S., quashed the first‑instance court’s judgment in the part which convicted him of making a knowingly false expert conclusion and discontinued proceedings on that charge, because there were no constituent elements of an offence in his actions. The appellate court also reclassified the remaining charges. Instead of abuse of office and forgery in office leading to grave consequences, he was found guilty of professional negligence with grave consequences and was sentenced to three years’ imprisonment and a ban on holding expert positions for three years. As that new charge had become time-barred, the Regional Court of Appeal absolved him from the penalty.", "The judgment upheld the applicant’s civil claim. 58. On 18 October 2010 the Supreme Court rejected a prosecution request for leave to appeal on points of law. 59. On 28 October 2010 G.S.", "paid the amount due to the applicant. 60. According to the applicant, she has never received any money from the Kyiv Regional Bureau of Forensic Medical Examinations. F. Criminal proceedings against the Vyshneve police officials 61. Following numerous complaints by the applicant about the inadequacy of Vyshneve police’s search for her son in August 2003, on 16 April 2007 the PGO opened a criminal case against officer K.O., who had been in charge of the search.", "Courts at two levels of jurisdiction (the Kyyevo-Svyatoshynskyy Court on 9 July 2012 and the Regional Court of Appeal on 9 April 2014) found him guilty of abuse of office with grave consequences and of forgery in office (see paragraph 24 above). They sentenced him to five years’ imprisonment and a prohibition on holding positions related to the performance of public duties for two years. He was, however, exempted from serving the sentence given the expiry of the statutory limitation period. The decision became final as there were no appeals on points of law. 62.", "The applicant also unsuccessfully sought the prosecution of A.V., K.O.’s supervisor. G. Criminal proceedings against P.V. (the doctor in charge of V.K.’s treatment at Fastiv Hospital) 63. On unspecified dates the prosecution authorities refused to institute criminal proceedings in respect of V.K.’s death against the chief doctor, the head of the traumatology department, the anaesthesiologist and the neuropathologist at Fastiv Hospital. The case file does not contain any further information or documents in that regard.", "Nor is there any information as to whether there were any disciplinary proceedings. 64. On 24 October 2007 the PGO opened a criminal case against P.V., the traumatology doctor at the hospital, on suspicion of failure to provide V.K. with the requisite medical care, which had led to the latter’s death. 65.", "On 14 September 2010 the investigator ordered a forensic examination of the case file by a panel of experts with a view to assessing the care provided to V.K. at Fastiv Hospital. The panel had to answer thirty specific questions, including the following: (a) Were there any legal standards for the treatment of craniocerebral injuries and, if so, had they been complied with in V.K.’s case? (b) Was the neurosurgeon’s recommendation to undertake a computerised brain tomography binding on P.V.? (c) How had the failure to carry out the computerised brain tomography influenced the quality of the medical care provided to V.K.", "and his health condition? (d) Would a timely computerised brain tomography have helped to detect the pathological developments that caused V.K.’s death? If so, would a timely medical response have made it possible to prevent them? (e) Had it been feasible to transport V.K. to the better equipped Kyiv Regional Hospital given the state of his health?", "(f) Were there any legal standards for such transportation? (g) Were any resuscitation measures carried out once V.K. had gone into a coma? (h) Did his coma result from low blood sugar? (i) Was V.K.", "so ill when he had arrived at Fastiv Hospital that he had been bound to die, regardless of any medical care? 66. The experts issued their report on 28 January 2011. It stated that there had been no legal standards for treating craniocerebral injuries until 13 June 2008. However, according to general practice, treatment was to consist of sedatives and pain relief; treatment of symptoms; an initial surgical debridement of wounds; anti-inflammatories, and, if required, hormonal, dehydrating, anti-edemic, antioxidant and nootropic treatment.", "The experts noted that the drugs prescribed for the applicant’s son (see paragraph 29 above) appeared to correspond to that practice. The report also observed that there were no regulations that had obliged P.V. to comply with the neurosurgeon’s recommendation. A timely computerised brain tomography would have helped to clarify the nature and scope of V.K.’s craniocerebral injuries, which, in turn, would have led to the right treatment. Accordingly, the failure to carry out that diagnostic measure had impaired the quality of the medical care given to V.K.", "and had contributed to aggravating his condition. Transporting him had been necessary and possible using a special intensive care vehicle, which the hospital had had at its disposal. In the absence of any relevant legal standards, questions concerning the transportation of patients were at the discretion of the doctor treating the patient and the hospital’s administration. The panel of experts further noted that V.K.’s medical file made no mention of resuscitation measures. As regards the cause of V.K.’s coma, there appeared to be no conclusive evidence that it had been due to low blood sugar.", "At the same time, the experts noted that given V.K.’s inability to eat and drink on his own it was probable his sugar level had dropped. Furthermore, they observed that although his condition had warranted regular infusions of glucose under the supervision of an endocrinologist, there had been only one such intravenous infusion, on 29 August 2003. Lastly, the report stated that there was no indication of an inevitable fatal outcome for V.K., regardless of any medical assistance. 67. In March 2011 the investigation was completed and the case was sent for trial.", "68. On 19 September 2013 the Vasylkiv Town Court remitted the case for additional investigation. However, on 6 February 2014 the Kyiv City Court of Appeal quashed that ruling. 69. On 29 July 2014 the Kyyevo-Svyatoshynskyy Court (to which the case had been transferred at the applicant’s request) found P.V.", "guilty of a failure to provide the applicant’s son with the requisite medical care, which had led to grave consequences. The court held, in particular, that P.V., without any good reason, had failed to make sure V.K. was transferred to the regional hospital for a computer brain tomography, which had seriously undermined the effectiveness of his treatment. Furthermore, it was concluded that P.V. had failed to take even the minimum measures in response to V.K.’s coma on 2 and 3 September 2003.", "The court sentenced him to three years’ imprisonment, but released him from serving the sentence as the limitation period for that type of offence had expired. Furthermore, the court allowed a civil clam by the applicant in part and awarded her UAH 100,000 (at the time equivalent to about EUR 6,100) in respect of non-pecuniary damage, to be paid jointly by P.V., the Fastiv District State Administration and Fastiv Hospital. 70. On 5 November 2014 the Regional Court of Appeal upheld that judgment. The only amendment it ordered was to make Fastiv Hospital solely responsible for paying the applicant.", "71. As there was no appeal on points of law the judgment became final. 72. The Government submitted an information note from the unified register of enforcement proceedings along with their observations. It stated that the bailiffs service had on 23 January 2015 terminated enforcement of the above judgment at the applicant’s request.", "73. Without commenting on that document, the applicant submitted that as of 1 August 2016 she had not received any payment from Fastiv Hospital. H. Criminal proceedings against K.M. (one of the police officers who ill-treated the applicant’s son) 74. On 19 November 2008 the investigator questioned several persons, who had been detained at the Fastiv railway station police unit on the evening of 22 August 2003.", "They submitted that they had witnessed the ill‑treatment of another inmate (see paragraph 18 above). 75. On 8 December 2008 a former detainee, S.P., recognised K.M. as one of the police officers who had beaten V.K. On various dates thereafter several other former detainees made similar statements.", "76. On 26 December 2008 the PGO detained K.M. 77. Subsequently, several criminal cases were opened against him on suspicion of abuse of office by a law-enforcement official with grave consequences, the exceeding of authority associated with ill-treatment of the victim, also with grave consequences, and infliction of grievous bodily harm leading to the death of the victim. K.M.", "consistently denied being present at the police unit on the evening on 22 August 2003, let alone having beaten V.K. 78. On 7 September 2011 the Bila Tserkva City Court found K.M. guilty of abuse of office by a law-enforcement official with grave consequences, and exceeding his authority associated with ill-treatment of the victim, also with grave consequences. The court acquitted him in respect of the charge of inflicting grievous bodily harm leading to the victim’s death.", "It sentenced him to six years’ imprisonment and a prohibition on holding positions related to public duties for three years. It also ordered the confiscation of his property. The court noted that the applicant had lodged a civil claim, however, it left it without examination on the grounds that there were a number of related criminal proceedings still ongoing and that she could later bring a civil claim under the civil procedure. 79. On 7 December 2011 the Regional Court of Appeal quashed K.M.’s acquittal and remitted that part of the case for additional investigation.", "It upheld the rest of the judgment. 80. On 7 March 2012 S.P. took part in a reconstruction of the events of 22 August 2003 (see paragraph 75 above). 81.", "On 12 March 2012 the investigator ordered a forensic medical examination to verify S.P.’s account. Furthermore, the expert was to establish the cause of V.K.’s death and the existence of any cause and effect between the death and his being beaten by K.M. The report was issued on 21 March 2012 and stated that the injuries sustained by V.K., as documented by the earlier forensic examination reports, could have been inflicted in the manner and in the circumstances described by S.P. As regards the cause of death, the panel referred to its earlier findings and stated that V.K. could have died of the brain and meninx injuries (see paragraph 51 above).", "Lastly, they concluded that the injuries could have resulted from K.M.’s assault on V.K., as described by S.P. 82. On 30 October 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the lower courts’ decisions of 7 September and 7 December 2011 (see paragraphs 78 and 79 above). 83. K.M.", "was released on parole on 2 November 2012. 84. However, on 15 November 2012 he was remanded in custody as a preventive measure pending his trial on the remaining charge (see paragraph 79 above). 85. On 12 August 2013 the Kyyevo-Svyatoshynskyy Court found K.M.", "guilty of inflicting grievous bodily harm on V.K., which had led to the victim’s death, and sentenced him to ten years’ imprisonment. The court saw no aggravating or mitigating circumstances in the case. At the same time, the case file material referred to in the judgment included the testimony of two witnesses who stated that K.M. was prone to violence. One of them, Vo., a retired teacher, stated that he had been arbitrarily detained in December 2003 and that K.M.", "had punched him in the face and used a pepper spray on him when he had complained. Being scared, Vo. had written a statement that he had no complaints against the police. Another witness, M., submitted that she had been in a café in October 2005 when K.M., clearly drunk, had passed by her and pushed her. She was pregnant and had told him his behaviour was unacceptable.", "K.M. had reacted by punching her in the face. Later, in the presence of the police, he had hit her again and she had fallen to the ground. Both K.M. and his superior had subsequently apologised to her and asked her not to lodge a complaint so she had not.", "86. On 27 November 2013 the Regional Court of Appeal quashed the first-instance court’s judgment and discontinued the proceedings in that part as time-barred. The appellate court noted that the statutory ten-year limitation period had not been interrupted as K.M. had not absconded or committed other criminal offences. K.M.", "was released in the courtroom. 87. The applicant appealed on points of law. She submitted, in particular, that K.M. had for many years concealed the truth about both knowing V.K.", "and ill-treating him. Accordingly, the applicant contended that he had been seeking to evade justice. 88. On 21 August 2014 the Higher Specialised Court for Civil and Criminal Matters upheld the appellate court’s ruling. I.", "Criminal proceedings against G.V. (the officer on duty at the Fastiv railway station police unit on 22 August 2003) 89. On 9 August 2012 the Baryshivka Town Prosecutor’s Office (in the Kyiv region) opened a criminal case against G.V., who had not stopped his colleague K.M. from beating the applicant’s son. 90.", "During the pre-trial investigation and the trial G.V. consistently denied that either V.K. or K.M. had been present at the police unit on 22 August 2003. 91.", "On 14 October 2013 the Kyyevo-Svyatoshynskyy Court found G.V. guilty of negligence with grave consequences and of concealing a criminal offence. It sentenced him to five years’ imprisonment and a prohibition on holding any office related to the performance of public duties for three years. G.V. was absolved from the penalty as the charges had become time‑barred.", "A civil claim by the applicant was allowed in part. The court ordered G.V. to pay her UAH 80,000 (equal to about EUR 7,100 at the time) in compensation for non-pecuniary damage. 92. On 10 December 2013 the Regional Court of Appeal upheld the first-instance court’s judgment, increasing the compensation to UAH 100,000 (about EUR 8,800).", "93. There was no appeal on points of law against those decisions. 94. The applicant states that as of 1 August 2016 she has received no payment. II.", "RELEVANT DOMESTIC LAW 95. The relevant provisions of the Criminal Code of 2001 (as worded at the material time) are summarised below. 96. Article 49 provided for exemption from criminal liability on the grounds of the expiry of the statutory limitation period after five years in the case of a medium-gravity offence; ten years for a grave offence; and fifteen years for a particularly grave offence. It stated that the running of the limitation period would be interrupted if the offender absconded.", "97. Under Article 74, a court could deliver a verdict but decide to exempt the guilty person from punishment on the same grounds as in Article 49. 98. Article 121 penalised the premeditated infliction of grievous bodily harm causing the victim’s death by imprisonment for seven to ten years. 99.", "Article 139 provided for up to four years’ restriction of liberty or up to three years’ imprisonment, with or without a ban on holding certain offices or carrying out certain activities for a period of up to three years, as punishment for a medical specialist’s failure to provide assistance (§ 2). 100. Article 364 provided for five to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for abuse of power or office with grave consequences (§ 2). If the same offence was committed by a law‑enforcement official, the possible term of imprisonment was between five and twelve years, with confiscation of property, in addition to a three‑year ban on holding certain offices or carrying out certain activities (§ 3). 101.", "Article 365 envisaged three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim (§ 2). The same acts, if they caused grave consequences, were punishable by seven to ten years’ imprisonment, with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years (§ 3). 102. Article 366 provided for imprisonment from two to five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities, as the penalty for forgery in office (forgery of documents by an official) with grave consequences (§ 2). 103.", "Article 367 sanctioned neglect of official duty with grave consequences by imprisonment for two to five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities, and a fine of one hundred to two hundred and fifty times the amount of the non-taxable minimum-level income. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 104. Relying on Articles 2, 6 and 13 of the Convention, the applicant complained that the State had been responsible for her son’s death and that there had been no effective domestic investigation. The Court considers that the complaints fall to be examined under Article 2 of the Convention only, which reads as follows: “1.", "Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 105. The Government did not raise any objections as regards the admissibility of the application.", "At the same time, they drew the Court’s attention to the numerous criminal proceedings brought in respect of the death of the applicant’s son, most of which had resulted in the conviction and sentencing of the persons concerned. The Government also stated in their observations on the merits of the case that adequate amounts had been awarded and paid to the applicant under her civil claims (see paragraphs 121 and 122 below). 106. The circumstances referred to by the Government might be considered as suggesting that the applicant has lost her victim status. Regardless of the possible interpretation of those submissions, the Court notes that the issue of the applicant’s victim status concerns a matter of compatibility ratione personae, which goes to the Court’s jurisdiction and does not depend on the existence of an objection by the Government to that effect (see, for example, R.P.", "and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012, and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts)). 107. The Court considers it necessary to examine, of its own motion, whether the applicant can be regarded as having lost her victim status.", "108. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive that person of his or her 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 Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V, with further references). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no.", "22978/05, § 116, ECHR 2010). 109. In the present case the question of the applicant’s victim status is closely linked to the issue of the State’s compliance with its procedural obligations under Article 2 of the Convention. The Court therefore joins this matter to the merits of that complaint (see Özcan and Others v. Turkey, no. 18893/05, § 55, 20 April 2010).", "110. For the sake of the completeness of its analysis, the Court takes note of the fact that the applicant did not lodge an appeal on points of law in most of the criminal proceedings concerning her son’s death (see paragraphs 58, 71 and 93 above). That is a relevant factor for assessing whether she exhausted domestic remedies before lodging her application with the Court. 111. It is noteworthy, however, that the scope of review of the applicant’s compliance with the rule on exhaustion of domestic remedies is limited by the Government’s objections.", "In other words, if the Government have not raised this point in their submissions, the Court is not in a position to rule, of its own motion, on whether the application is inadmissible for non‑exhaustion of domestic remedies (see, for example, Mechenkov v. Russia, no. 35421/05, § 78, 7 February 2008, and, more recently, International Bank for Commerce and Development AD and Others v. Bulgaria, no. 7031/05, § 131, 2 June 2016, with further references). Accordingly, the Court will not deal with this issue in the present case. 112.", "The Court further notes that the application is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 113.", "The applicant submitted that her son had died because of a chain of crimes and omissions by the State authorities, in particular, as a result of his ill‑treatment by the police and the subsequent failure to provide him with adequate and timely medical assistance. 114. The applicant emphasised the arbitrariness of V.K.’s detention and the violence inflicted on him. She further drew the Court’s attention to the connivance with those crimes by other State officials and the overall environment of impunity in the State authorities and institutions involved. 115.", "She contended that in addition to having been severely beaten, her son had been tortured with electric current, without further details. Furthermore, referring to the forensic medical examination report of 15 November 2004 (see paragraph 48-50 above), the applicant stated that certain organs had been missing from V.K.’s body. 116. As regards the deficiencies in the medical treatment provided to V.K. in Fastiv Hospital, the applicant maintained that they had been possible owing to numerous gaps in Ukrainian legislation.", "In that connection, she pointed to the absence at the time of any legal standards governing the treatment of cerebrocranial injuries or on decision-making on and the implementation of a patient’s transfer from one hospital to another. 117. The applicant further contended that the lack of diligence by the Vyshneve police in searching for V.K. after his disappearance on 18 August 2003 had also to a certain extent contributed to his death. According to her, if they had performed their duties properly, this would have saved him.", "118. The applicant complained about the overall ineffectiveness and length of the domestic investigation. She found it inconceivable that it had not been possible to identify the other two police officers involved in the ill‑treatment of her son. 119. Lastly, she submitted that only a very small amount of the compensation awarded to her under her civil claims had actually been paid (see paragraph 59 above).", "(b) The Government 120. The Government confined their observations to the issue of the effectiveness of the investigation concerning V.K.’s death. 121. They contended that the domestic authorities had done everything that could reasonably have been expected of them to elucidate the circumstances of his death and to bring those responsible to account. The Government observed that guilty verdicts had been delivered against five persons.", "They further maintained that all the requisite investigative measures had been carried out to identify the two police officers involved in V.K.’s ill-treatment and bring them to justice. 122. Lastly, the Government observed that the applicant’s civil claims had been allowed and that she had received all the money awarded. 2. The Court’s assessment 123.", "Given that the issue of the applicant’s victim status was joined to the merits of her complaint about the allegedly ineffective domestic investigation into the death of her son, the Court considers it appropriate to start its examination of the merits of the application with that complaint. (a) Alleged failure to carry out an effective investigation into V.K.’s death (i) General principles 124. The obligation to carry out an effective investigation into unlawful or suspicious deaths is well established in the Court’s case-law. When considering the requirements flowing from the obligation, it must be remembered that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Furthermore, 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 Brecknell v. the United Kingdom, no.", "32457/04, § 65, 27 November 2007, with further references). 125. The obligation of effective official investigation under Article 2 of the Convention is not confined to cases where it has been established that the death was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see Vasîlca v. the Republic of Moldova, no. 69527/10, § 28, 11 February 2014, with further references).", "The same principle applies when there are reasons to believe that an individual has sustained life-threatening injuries in suspicious circumstances (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 171, 14 April 2015). 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, the investigation assumes even greater importance (see Keller v. Russia, no. 26824/04, § 93, 17 October 2013).", "126. The above investigative duty, which has been implied in varying contexts under the Convention, may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it. While an official investigation and/or a criminal trial must be regarded as furnishing the strongest safeguards to provide protection under Article 2 in cases of intentional taking of life, where the allegations raise issues of negligence, the procedural obligation may come into play upon the institution of proceedings by the deceased’s relatives and a civil, administrative or even disciplinary remedy may be sufficient (see Petrović v. Serbia, no. 40485/08, § 73, 15 July 2014, with numerous further references). 127.", "In the particular sphere of medical negligence, the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I). 128. Regardless of its specific context, in order to comply with the requirements of Article 2 of the Convention, the investigation must be, inter alia, thorough, impartial and careful (see, for example, Mustafa Tunç and Fecire Tunç, cited above, § 169). The investigation must also be effective in the sense that it is capable of leading 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, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002‑IV). The requirements of promptness and reasonable expedition are implicit in this context (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009).", "129. The persons responsible for an investigation should be independent of anyone implicated or likely to be implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Aliyev and Gadzhiyeva v. Russia, no. 11059/12, § 96, 12 July 2016). 130.", "Lastly, an 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, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, 4 May 2001). (ii) Application of the above principles to the present case (α) Scope of issues for the domestic investigation 131. Before starting its analysis of whether the domestic investigation into the death of the applicant’s son in the present case complied with the requirements of Article 2 of the Convention as outlined above, the Court finds it necessary to establish the scope of the issues which had to be dealt with by the Ukrainian investigating authorities.", "132. The Court notes that V.K. died after sustaining a number of injuries in circumstances which were unknown at the time and following allegedly deficient medical treatment in a State-run hospital. Furthermore, it is of relevance to note that he had been suffering from various chronic illnesses and had had a health-related concern which had warranted admission to hospital shortly before the incident in August 2003. 133.", "Accordingly, the domestic investigation had to establish, first of all, the nature and scope of the injuries sustained by V.K. and their role in his death, as well as all the circumstances in which he had been injured with a view to bringing those responsible to account. Another issue for examination was the adequacy of the medical treatment provided to V.K. prior to his death. (β) Investigation regarding V.K.’s injuries 134.", "The Court notes that on 25 August 2003 V.K., severely beaten and unconscious, was found at Fastiv railway station and taken by ambulance to the local hospital. Having regard to the seriousness of his injuries, the Court considers that it was important to bring that matter to the knowledge of the law-enforcement authorities without delay with a view to launching an investigation. 135. It appears, however, that the only law-enforcement officials who had information about V.K.’s injuries at that stage were those involved in his ill-treatment. Thus, the applicant’s son was not able to talk or identify himself, let alone raise any complaints or give details about his ill-treatment.", "The hospital administration’s statement that it informed the town police of the incident appears to be without basis (see paragraph 22 above). Nor is there any indication in the case file that any efforts were made to establish V.K.’s identity. The Court can hardly blame the hospital administration for that, given that they themselves had received the information about him from a police officer (see paragraph 20 above). 136. As confirmed by the documents to hand, the first official notification by Fastiv Hospital to the town police about the arrival, treatment and death of an unidentified man with head injuries was made on 5 September 2003, that is two days after his death (see paragraph 38 above).", "While, strictly speaking, that delay was not such as to undermine the effectiveness of the subsequent investigation, the Court finds no justification for it, even more so given that the identity of V.K. remained unknown and it was likely that his relatives were looking for him. 137. The Court observes that an autopsy was performed by the forensic medical expert G.S. the day after V.K.’s death, on 4 September 2003.", "In the preliminary death certificate issued that day, as well as in the post-mortem examination report finalised on 10 October 2003 and in another forensic medical examination report of 29 October 2003, G.S. stated that V.K. had died of a number of medical conditions and diseases, mainly caused by long-running alcohol and drug intoxication (see paragraphs 37, 41 and 43 above). As subsequently established by the domestic authorities, that statement was “knowingly false”. Furthermore, G.S.", "failed to record all the injuries on the body or the numerous tattoos. He also failed to collect all the required tissue samples and carry out a number of essential analyses (see paragraphs 37 and 55-60 above). 138. Those flagrant omissions undermined all later attempts to establish the truth regarding V.K.’s death and at least six further forensic expert evaluations were undertaken, by different experts, between 2004 and 2009. Although they did shed some light on the matter, it was found to be impossible to establish with precision all the injuries to V.K.’s head (see paragraph 51 above).", "139. It does not escape the Court’s attention that criminal proceedings were eventually instituted against G.S. and that he was found guilty of professional negligence with grave consequences. By the time of his conviction in 2010, however, that criminal offence had become time-barred. He paid the applicant about EUR 950 in compensation for non-pecuniary damage (see paragraphs 57 and 59 above).", "Although the institution for which he worked was also ordered to pay the applicant about EUR 4,700 in damages, there is no evidence that that amount was actually paid to her (see paragraphs 56 and 60 above). 140. While the outcome of the above proceedings constituted at least some compensatory redress for the applicant, it had no bearing for the effectiveness of the subsequent investigation into the death of her son. 141. When assessing the authorities’ response to V.K.’s death, the Court notes that the criminal investigation into his suspected murder by unknown persons was initiated on 10 October 2003 (see paragraph 42 above).", "Given that neither the autopsy report nor the post-mortem examination report had found any indication of a violent death at that time, the rationale for that decision is unclear. It may be presumed that it was taken in response to the applicant’s complaints. Be that as it may, the discrepancies between her description of the injuries on her son’s body, which she had seen during his reburial on 12 September 2003, and that given in the reports by G.S. were so serious that they warranted investigation. The authorities, however, waited for more than a year before ordering an exhumation (see paragraph 47 above).", "It was only then, on 15 November 2004, that V.K.’s injuries were finally recorded accurately, to the extent allowed by decomposition. 142. As regards the investigation of the circumstances in which the applicant’s son was injured, the key question is when the prosecution authorities had or ought to have had reasonable grounds for suspecting the involvement of the Fastiv railway station police unit’s officials. 143. The Court notes in that connection that as early as 30 October 2003 the applicant had handed the clothes and shoes which V.K.", "had been wearing when hospitalised on 25 August 2003 to the investigator. She indicated that it was possible her son had been in detention, given that his shoes had no laces (see paragraph 44 above). In the absence of any evidence to the contrary, the Court concludes that no one checked her statement. At the same time, the Court observes that it took the investigation almost two years to establish undisputed facts: namely, that the stains on the clothes were blood and that it was V.K.’s blood (see paragraph 45 above). 144.", "The Court next observes that information about the earlier complaint by V.K. of ill-treatment by the Fastiv railway station police unit’s officers, which had been lodged in February 2002, was readily available for the investigation being a part of the prosecution authorities’ records. It is not known, however, when and how that issue was investigated following V.K.’s death, apart from the fact that it was studied in February 2007 by the trial court dealing with the criminal case against officer K.M. (see paragraph 8 above). 145.", "On the facts of the case, the Court observes that the investigator decided to question the persons, who had been detained in the Fastiv railway station police unit on 22 August 2003, in November 2008. Only then were criminal proceedings initiated against K.M., who had been recognised as having been involved in the ill-treatment of the applicant’s son (see paragraphs 74 and 75 above). It was also at that point, that is more than five years after the impugned events, that the investigator decided to inspect the cell at Fastiv railway station and to take samples from the walls and floor to check for traces of V.K.’s blood (see paragraph 52 above). 146. In other words, the first meaningful investigative measures with a view to establishing the truth about the origin of V.K.’s injuries were not taken until November 2008.", "Given the considerable lapse of time the prospects of a successful investigation had diminished considerably. 147. It is in that five-year delay that the Court sees the only explanation for the prosecution authorities’ failure to identify the two police officers who had beaten V.K. along with their colleague K.M. It proved to be the case that the former detainees recognised only K.M.", "and were no longer in a position to recognise the other perpetrators. 148. The Court takes note of the fact that K.M. was eventually convicted on account of the ill-treatment of the applicant’s son. More specifically, he was found guilty by a final court decision of 30 October 2012 of abuse of office by a law-enforcement official with grave consequences and of exceeding his powers associated with ill-treatment of the victim, also with grave consequences.", "He was sentenced to six years’ imprisonment with a three-year prohibition on holding positions related to the performance of public duties and confiscation of his property (see paragraph 78 above). As regards the other charge against him, infliction of grievous bodily harm leading to the victim’s death, the proceedings were discontinued as time‑barred by the final decision of 21 August 2014 (see paragraph 88 above). Altogether, K.M. was in prison for slightly over five years (see paragraphs 76, 83, 84 and 86 above). 149.", "The Court has already held that where a State agent has been charged with crimes involving torture or ill-treatment it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible (see, for example, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004). It is vital in ensuring that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the prohibition of ill-treatment are not undermined (see Cestaro v. Italy, no. 6884/11, § 205, 7 April 2015, with further references). 150.", "In the present case, the key charge against K.M. became time‑barred owing to the lengthy and inadequate investigation. At no point did he show any remorse for what he had done. Furthermore, for his colleagues who had also participated in V.K.’s ill-treatment, but who had remained unidentified, the only message from the discontinuation of the proceedings against K.M. on that ground was that they would never be punished, regardless of the outcome of the ongoing investigation in their respect (see paragraph 54 above).", "151. Accordingly, the judicial system in Ukraine cannot be regarded as having ensured a sufficient deterrent effect in the present case in support of its prohibition of ill-treatment and the protection of human life. 152. The Court does not lose sight of the criminal proceedings against G.V., the police officer who had been on duty on 22 August 2003 and who had not stopped V.K.’s ill-treatment (see paragraphs 89-94 above). It is noteworthy, however, that those proceedings were instituted nine years after the impugned events and that the charge against him became time-barred.", "While the amount of the compensation awarded to the applicant in respect of non‑pecuniary damage was not insignificant (EUR 8,800), the Government failed to rebut the applicant’s statement that the judgment had not been enforced. 153. As regards the criminal proceedings against the Vyshneve police officials on account of the inadequate search for the applicant’s son (see paragraphs 61 and 62 above), the Court does not consider that the issue calls for separate analysis here. 154. Nor does the Court find it necessary to examine whether the domestic investigation into the death of the applicant’s son complied with the requirements of independence and public scrutiny.", "Having regard to the glaring omissions and prohibitive delays in the investigation in respect of his fatal injuries, which lasted for about thirteen years, failed to establish all the pertinent facts, left two of the three perpetrators unidentified and allowed the prosecution of the third one in respect of some of the charges become time-barred, the Court considers that the State has not complied with its procedural obligation under Article 2 of the Convention. 155. There has therefore been a violation of that provision on that account. (γ) Investigation regarding V.K.’s medical treatment in Fastiv Hospital 156. In the absence of any information from the parties as to whether there were disciplinary proceedings, the Court considers that there were none.", "It further notes that the authorities refused to institute criminal proceedings against the doctors, including the management of Fastiv Hospital, and that the applicant brought no separate civil proceedings (see, in particular, paragraph 63 above). 157. The forum for investigating the issue of V.K.’s treatment in Fastiv Hospital was therefore limited to the criminal proceedings against doctor P.V. The Court notes that the outcome of those proceedings was overall favourable for the applicant: the doctor was found guilty of a criminal offence and the hospital was ordered to pay her compensation for non-pecuniary damage. However, having regard to all the circumstances of the case, the Court does not consider the above considerations sufficient for reaching a conclusion that the State has duly discharged its procedural obligations under Article 2 of the Convention in that regard.", "158. First of all, the Court takes note of the considerable delays in the proceedings in question – they were instituted more than four years after the death of the applicant’s son. It then took another seven years before they were completed by a guilty verdict upheld on appeal. The domestic courts found P.V. guilty of a failure to provide V.K.", "with the requisite medical care, which had caused grave consequences. More specifically, they established that the doctor had failed to arrange V.K.’s transfer to the regional hospital to confirm his diagnoses and that no measures had been taken after he fell into a coma. By the time the verdict was pronounced, however, the offence had become time-barred and P.V. was exempted from serving his three-year prison sentence (see paragraph 69 above). 159.", "As the Court has already held in its case-law, resort to criminal-law remedies is not essential in the context of medical negligence. What matters is establishing all the pertinent facts and bringing those responsible to liability (see paragraphs 126 and 127 above). 160. The Court is mindful of the fact that the investigation of V.K.’s medical treatment, similarly to that regarding his ill-treatment prior to his hospitalisation, was hampered by the irretrievable deficiencies of the autopsy and post-mortem examination reports (see paragraphs 137 and 138 above). However, regardless of those inherent difficulties, the Court does not consider that the domestic authorities made every reasonable effort to analyse V.K.’s medical treatment before his death.", "161. The Court notes, in particular, that although the criminal proceedings against P.V. resulted in serious factual findings about major omissions in V.K.’s treatment, it was never established unequivocally what medical assistance the applicant’s son had actually received at Fastiv Hospital. While certain drugs were prescribed for him, there was no evidence that they had actually been administered (see paragraphs 28 and 29 above). Nor was it established what caused the deterioration of his health to the point of his going into a coma.", "One of the reasons could have been low blood sugar as a result of his head injuries, aggravated by malnutrition. That possibility was eventually dismissed by experts as not based on conclusive evidence (see paragraph 66 above). However, no other meaningful explanation was advanced. 162. The Court next observes that the X-rays of V.K.’s skull, which had been carried out as soon as he had arrived at hospital (see paragraph 26 above), inexplicably disappeared.", "Nor was it explained how the reported conclusion of that examination, that there were no fractures, could be reconciled with the subsequent finding that V.K. had a broken nose. 163. The Court notes that the applicant brought a civil claim within the above-mentioned criminal proceedings and that it was granted in part. As a result, Fastiv Hospital was ordered to pay her about EUR 6,100.", "Although the applicant denied receiving any money, the Court considers that the circumstances of the case suggest otherwise. It observes, in particular, that enforcement proceedings were terminated on 23 January 2015 at the applicant’s own request (see paragraph 72 above). 164. However, the Court notes the inordinate delay in the judgment enforcement of eleven years and four months after the death of her son. Furthermore, the amount is considerably lower than that awarded by the Court in medical negligence cases found to be in breach of Article 2 of the Convention (see, for example, Arskaya v. Ukraine, no.", "45076/05, 5 December 2013, and Ioniță v. Romania, no. 81270/12, 10 January 2017). 165. In the light of the foregoing, the Court considers that there has been a violation of the procedural limb of Article 2 of the Convention on account of the ineffective domestic investigation into the allegation of inadequate medical care provided to the applicant’s son in Fastiv Hospital. (δ) Conclusion 166.", "Having regard to its findings (see paragraphs 155 and 165 above), the Court considers that the domestic authorities have not afforded effective or sufficient redress to the applicant for the alleged breaches. Accordingly, she can still claim to be a “victim” of a violation under the Convention within the meaning of Article 34 of the Convention (see paragraph 109 above). (b) Alleged violation of V.K.’s right to life (i) V.K.’s fatal ill-treatment by the police (α) General principles 167. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe.", "The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324). 168. In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed. Article 2 does not grant a carte blanche.", "Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means, amongst other things, that the State must ensure, by putting in place a system of adequate and effective safeguards against arbitrariness and abuse of force, that its agents duly understand the limits of their power and that, in their actions, they are guided not only by the letter of the relevant professional regulations but also pay due regard to the pre‑eminence of respect for human life as a fundamental value (see Enukidze and Girgvliani v. Georgia, no. 25091/07, § 284, 26 April 2011, with further references). 169. The Court has emphasised in its case-law that persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment.", "Consequently, where an individual is taken into police custody without physical injuries but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, mutatis mutandis, Anguelova, cited above, § 110). 170. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII). (β) Application of the above principles to the present case 171. The Court notes at the outset that not all of the applicant’s allegations are sufficiently corroborated.", "She complained that V.K. had been tortured by electric current and that some of his organs had been found to be missing from his body. However, the Court does not discern any direct or indirect evidence in the case file to support those statements (see paragraphs 48-50 and 115 above). 172. At the same time, although the applicant’s son did have some health concerns, it has been established that the applicant’s son died as a result of the force applied to him by the police during his unacknowledged detention (see, in particular, paragraphs 19 and 51 above).", "173. It is noteworthy that at the time of the events V.K. was locked in a cell, apparently in a poor state of health given the preceding medical treatment, and that his resistance to the police was limited to verbal expressions of dissatisfaction about being detained (see paragraphs 9, 12, 15 and 18 above). That was, however, enough to provoke officer K.M. to enter the cell and hit V.K.", "in the face with a rubber truncheon, breaking his nose and causing him to collapse. Although the applicant’s son was lying helpless on the floor, with a bleeding nose, two other police officers joined in beating him, which continued for an unspecified period of time. As eventually established by the domestic investigation, he sustained at least eight blows to the face and head (see paragraph 51 above). 174. It is not known what happened to V.K.", "after the night of 22 to 23 August 2003, before he was discovered unconscious at Fastiv railway station shortly after midnight on 25 August 2003 (see, in particular, paragraph 19 above). Having regard to his injuries, it is unlikely that he arrived there on his own. The only factual inference that can be made in the circumstances is that following his severe beating on 22 August 2003 V.K. remained under the control of the police, without any medical assistance, which undoubtedly contributed to aggravating his health condition. 175.", "The Court deplores the utter arbitrariness of the police officers’ actions and their unwarranted violence against V.K. It notes that a year and a half before the incident, in February 2002, he had already complained to the prosecution authorities of continued physical ill-treatment and psychological pressure from officers at the Fastiv railway station police unit (see paragraph 8 above). Their behaviour in August 2003 suggests that his complaint had not received due attention and that they had nothing to fear. 176. The Court also takes note of some other case file material indicating that the way in which the police officers treated the applicant’s son was quite habitual for them.", "It transpires from two uncontested witness statements that K.M. punched an elderly man in the face in December 2003 and hit a pregnant woman in October 2005, without any negative consequences for his career (see paragraph 85 above). 177. In the light of the foregoing, the Court considers that V.K. received fatal injuries while being at the hands of the police.", "(ii) Lack of adequate medical treatment prior to V.K.’s death (α) General principles 178. The Court reiterates that the first sentence of Article 2 enjoins 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 L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III). 179. Those principles apply in the public-health sphere too.", "The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require 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 Calvelli and Ciglio, cited above, § 49, with further references). 180. However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and to protect the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V).", "(β) Application of the above principles to the present case 181. The Court notes that although V.K.’s condition was very serious following his ill-treatment by the police, his life could still have been saved if he had received timely and adequate medical assistance (see paragraphs 65 and 66 above). 182. It is an established fact, however, that such assistance was not provided to him. It soon became obvious that Fastiv Hospital did not have the right equipment and that in order to clarify V.K.’s diagnoses and give him the correct treatment he had to be transferred to Kyiv Regional Hospital for a computerised brain tomography.", "Although V.K.’s condition permitted for his transportation by an adapted vehicle and Fastiv Hospital had such vehicles at its disposal, no steps were taken to arrange his transfer. 183. It is also noteworthy that no resuscitation measures were given to V.K. after he went into a coma (see paragraphs 35, 66 and 69 above). In the absence of any evidence to the contrary, the Court cannot but state that the applicant’s son was simply left to die without any medical assistance, albeit being in a hospital setting.", "184. As established by the domestic investigation, one of the factors undermining the quality of the treatment provided to the applicant’s son was the absence of any legal standards at the time regarding the treatment of craniocerebral injuries. There were also no regulations concerning the transfer of patients from one hospital to another (see paragraph 66 above). 185. Having regard to all the circumstances of the present case, the Court considers that the applicant’s son’s situation in Fastiv Hospital constituted a de facto denial of health care having led to his death (see, mutatis mutandis, Mehmet Şentürk and Bekir Şentürk v. Turkey, no.", "13423/09, § 88, ECHR 2013, with further references). (iii) Conclusion 186. The above considerations lead the Court to conclude that the State bears responsibility for the death of the applicant’s son on account of both his severe beating by the police and the lack of adequate medical treatment. In the particular circumstances of this case both these factors were fatal for V.K. and it is neither necessary nor possible to establish with prevision which of them played a decisive role for his death.", "187. There has therefore been a violation of the substantive limb of Article 2 of the Convention in this regard. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 188. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 189. The applicant claimed EUR 100,000 in respect of non-pecuniary damage. 190. The Government contested the claim as unsubstantiated and exorbitant. 191.", "The Court observes that it has found particularly serious violations of Article 2 of the Convention in the present case. Namely, it has held that the State bears the responsibility for the death of the applicant’s son, who was severely injured by the police in unacknowledged detention and did not receive adequate medical care. The Court has also found the domestic investigation into the matter to be seriously flawed. The Court considers that the applicant suffered intense distress and anguish on account of those circumstances. Moreover, her suffering must have been aggravated by the feeling of helplessness in her efforts to find her son and help him when he was still alive.", "While bearing in mind that the applicant did receive certain monetary redress at the domestic level, the Court considers it appropriate to award her EUR 72,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B. Costs and expenses 1. Legal costs incurred before the Court 192. The applicant claimed EUR 3,600 for her legal representation in the proceedings before the Court, to be paid into Mr Mykhailo Tarakhkalo’s bank account.", "To substantiate that claim she submitted a legal assistance contract of 5 June 2016 indicating an hourly rate of EUR 150. The applicant also submitted a copy of an invoice from the lawyer dated 1 August 2016, for EUR 3,600 for a total of twenty-four hours’ work. 193. 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 2,750 (equivalent to EUR 3,600 minus EUR 850, the sum received by way of legal aid) under this head, plus any value-added tax that may be chargeable to her.", "The net award is to be paid into Mr Tarakhkalo’s bank account, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-117, 7 November 2013). 2. Other expenses 194. The applicant further claimed 1,021.24 Ukrainian hryvnias (UAH) (equivalent to about EUR 36 at the time) for translation and postal expenses.", "She submitted postal receipts for UAH 301.24 and a receipt from a translation agency for UAH 720 to substantiate the claim. 195. The Government left the issue at the discretion of the Court as far the applicant’s claim for postal fees was concerned and asked the Court to reject the remainder of her claim regarding the translation costs. 196. Having regard to all the material in its possession, the Court awards the applicant EUR 36 under this head, plus any value-added tax that may be chargeable.", "C. Default interest 197. 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 issue of the applicant’s victim status and holds that she can still claim to be a victim of the alleged violations; 2. Declares the application admissible; 3.", "Holds that there has been a violation of the substantive limb of Article 2 of the Convention on account of the fatal injuries sustained by the applicant’s son at the hands of the police and the lack of adequate medical treatment provided for him prior to his death; 4. Holds that there has been a violation of the procedural limb of Article 2 of the Convention on account of the ineffective domestic investigation into the origin of V.K.’s injuries; 5. Holds that there has been a violation of the procedural limb of Article 2 of the Convention on account of the ineffective domestic investigation into the allegation of inadequate medical care provided to the applicant’s son in Fastiv Hospital; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 72,000 (seventy-two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,750 (two thousand seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of legal costs before the Court (the net award to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo); and (iii) EUR 36 (thirty-six euros), plus any tax that may be chargeable to the applicant, in respect of other costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliVincent A. De GaetanoRegistrarPresident" ]

[ "THIRD SECTION CASE OF ŽIDOV v. SLOVENIA (Application no. 27701/02) JUDGMENT STRASBOURG 21 December 2006 FINAL 21/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Židov v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrC. Bîrsan, President,MrB.M.", "Zupančič,MrV. Zagrebelsky,MrsA. Gyulumyan,MrDavid Thór Björgvinsson,MrsI. Ziemele,MrsI. Berro-Lefèvre, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 30 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 27701/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Ivan Židov (“the applicant”), on 10 July 2002. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 7 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicant was born in 1952 and lives in Velenje. 6. On 18 February 1998 and on 27 November 1995 the applicant was allegedly injured in an accident at work.", "The applicant's employer had taken out insurance with the insurance company ZT. 7. On 9 July 1998 the applicant instituted civil proceedings against ZT and his employer in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 4,700,795 Slovenian tolars (approximately 19,600 euros) for the injuries sustained. On 15 November 2001 the judge to whom the case had been assigned was promoted and the case was subsequently assigned to a new judge. Between 29 June 2000 and 20 April 2005 the applicant lodged five preliminary written submissions.", "Between 16 June 1999 and 26 April 2002 he made five requests that a date be set for a hearing. Of at least five hearings held between 14 May 2001 and 21 September 2005 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. At the last hearing the court decided to deliver a written judgment. The judgment of 21 September 2005, rejecting the applicant's claim, was served on the applicant on an unspecified date.", "8. On 10 January 2006 the applicant lodged an appeal against the judgment. The proceedings are pending on the appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 9.", "The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 10. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 11. The Government pleaded non-exhaustion of domestic remedies.", "12. The applicant contested that argument, claiming that the remedies available were not effective. 13. The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no.", "23032/02, 6 October 2005). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant's disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 14. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.", "15. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Article 6 § 1 16. The period to be taken into consideration began on 9 July 1998, the day the applicant instituted proceedings with the Celje District Court, and has not yet ended. The relevant period has therefore lasted over eight years and two months for two levels of jurisdiction. 17.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 18. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 19. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case.", "20. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 22. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 23. The Government contested the claim. 24.", "The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 5,600 under that head. B. Costs and expenses 25. The applicant also claimed approximately EUR 1,060 for the costs and expenses incurred before the Court.", "26. The Government argued that the claim was too high. 27. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant's lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one.", "Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,600 (five thousand six hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerCorneliu BîrsanRegistrarPresident" ]

[ "FIRST SECTION CASE OF SHAROV v. RUSSIA (Application no. 38918/02) 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 Sharov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38918/02) 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 Vyacheslav Georgiyevich Sharov (“the applicant”), on 8 October 2002. 2. The applicant was represented by Mr I. Telyatyev, a lawyer practising in Аrkhangelsk. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, the Representatives of the Russian Federation at the European Court of Human Rights. 3.", "On 3 July 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 1947 and lives in Arkhangelsk.", "5. The applicant lived in a council house under the threat of collapse. As the local authority had failed to resettle the applicant, he brought a civil action. 6. On 18 December 2001 the Lomonosovskiy District Court of Arkhangelsk held for the applicant and ordered the authority to: “provide [the applicant’s] family of four with a well-equipped at of at least 48 m² meeting sanitary and technical standards.” This judgment became binding on 21 January 2002.", "7. On the applicant’s request, on 21 June 2002 the district court changed the mode of execution, and ordered the authority to pay to the applicant the price of a new flat. This decision was quashed on appeal, and after a rehearing, the award was increased. On 17 April 2003 the funds were credited to the bailiff’s account. 8.", "On 28 April 2003 the authority provided the applicant with a flat of 43.1 m², and the applicant agreed to move in. The authority asked the court to order it to pay to the applicant the price of the 4.9 m² shortfall in order to settle the judgment debt, but the applicant objected, and the court dismissed this request. 9. On the bailiff’s request, on 28 April 2005 the district court reverted the mode of execution from monetary to in-kind, and since the applicant had already received the flat, the bailiff closed the enforcement proceedings. On 6 February 2006 the Arkhangelsk Regional Court ordered the enforcement proceedings to resume because the flat received by the applicant was smaller than originally awarded.", "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 under Articles 2, 3, and 6 of the Convention, and under Article 1 of Protocol No. 1, about the non-enforcement of the judgment. The Court will examine this complaint only under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1. As far as relevant, these Articles 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 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 13.", "The Government acknowledged that the judgment had not been enforced in full. Nevertheless, they put the blame for the non-enforcement on the applicant: he had refused to receive the price of the 4.9 m² shortfall, and had not agreed that he would move out of the currently occupied at if the local authority offered him an appropriate at. 14. The applicant insisted on his complaint. The authority had made no attempt to provide him with a at conforming to the award and had not been willing to enforce the judgment.", "The applicant had had to accept the smaller at because the old house risked collapse. The applicant had had to reject the price for the 4.9 m² shortfall because it was underestimated. 15. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III).", "To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what the nature of the award was (Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 16. The Court notes that the judgment remains unenforced, insofar as the applicant still has not received a at of 48 m². The non-enforcement has lasted more than six years, which is prima facie incompatible with the Convention.", "The Government have not shown that the applicant has ever been offered a at that would conform to the award. 17. There has, accordingly been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 18. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 19. The applicant claimed 36,027 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage. 20.", "The Government contested these claims as excessive and ill-founded. 21. As to pecuniary damage, the Court reiterates that the violations found are best redressed by putting the applicant in the position he would have been if the Convention had been respected. The Government shall therefore secure, by appropriate means, the enforcement of the domestic courts’ award (see, with further references, Poznakhirina v. Russia, no. 25964/02, § 33, 24 February 2005).", "22. As to non-pecuniary damage, the Court admits that the non-enforcement of the judgment has distressed the applicant. On an equitable basis, the Court awards EUR 3,000 under this head. B. Costs and expenses 23.", "The applicant also claimed EUR 1,326 for the costs and expenses incurred before the Court. 24. The Government submitted that the applicant is entitled only to costs necessarily incurred and reasonable as to quantum. 25. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 900 for the proceedings before the Court. C. Default interest 26. 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, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the award made by the domestic court, and in addition pay the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 900 (nine 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 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF BULAVA v. RUSSIA (Application no. 62812/12) JUDGMENT STRASBOURG 25 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Bulava v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62812/12) 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 Sergey Petrovich Bulava (“the applicant”), on 6 September 2012.", "2. The applicant was represented by Ms A. Zheltyakova, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicant alleged that the authorities had not secured his well‑being in detention as they had failed to provide him with adequate medical care.", "He also argued that he had had no effective remedies to complain of the quality of that treatment in detention. 4. On 3 September 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1965 in the Altay Region. He lives in Novosibirsk. 6. At the relevant time the applicant was serving a prison sentence for aggravated robbery in correctional colony no. 21 in the Novosibirsk Region.", "7. On 20 January 2007 he complained to a prison doctor that he had started experiencing severe pain in the lower back after an accidental fall. The doctor diagnosed lumbar osteochondrosis and prescribed the standard treatment. 8. The treatment proved to be ineffective.", "Thirty days later he was admitted to the correctional colony’s medical unit for a month-long course of inpatient treatment. According to the applicant, the unit did not employ the necessary medical specialists and did not have the equipment needed to treat his condition. 9. Since there were no positive developments in the applicant’s health and the pain persisted, on 13 March 2007 he was taken to the regional prison hospital in Novosibirsk. He was seen by a neurologist, who diagnosed myelopathy, a neurological problem related to the spinal cord, accompanied with a mild dysfunction of the legs.", "The treatment regimen was amended, but his condition did not change. He was discharged from the hospital on 2 April 2007. 10. On two occasions, between 20 April and 23 June 2007 and between 17 September and 2 November 2007, the applicant was treated in the correctional colony’s medical unit. 11.", "On 28 November 2007 the applicant was certified as having a third‑degree disability. 12. On 18 February, 25 August and 1 November 2008 the detention authorities applied to move him to Gaaza Prison Hospital in St Petersburg for “neurosurgical treatment”, but apparently received no reply. 13. In the meantime, the applicant was sent back and forth between the medical unit and the prison hospital, mainly receiving medication for his symptoms.", "He developed paresis, a neurological condition of muscle weakness, in three of his limbs, and started using crutches. 14. On 1 December 2008 a special medical board confirmed the applicant’s disability and ordered a magnetic resonance imaging examination (“MRI”), however, the detention facility had no funds to pay for it. After collecting enough money, the applicant had an MRI on 10 December 2009. It revealed an abnormal narrowing of the spinal canal.", "The applicant was prescribed conservative treatment. 15. The treatment he received did not stop the illness’s progression and on 2 April 2010 he was certified as having a second-degree disability. 16. In July 2010 the detention authorities applied for his admission to the spinal surgical unit of the Gaaza hospital.", "On 27 September 2010 their request was dismissed owing to the absence of a fresh MRI. 17. On 6 December 2010 the applicant complained to the prosecutor of Novosibirsk Region about the failure of the medical authorities to duly apply for his transfer to the prison hospital. By a letter of 28 December 2010 the prosecutor supported the applicant’s allegations, noting that a prison official had already been disciplined for the failure to submit the applicant’s complete medical file to Gaaza Prison Hospital. The prosecutor ordered the detention authorities to apply for the applicant’s admission to the prison hospital.", "18. On 24 February 2011 the applicant was seen by the chief traumatology specialist of Novosibirsk Region, who prescribed spine surgery, an operation which was accessible through the quota system (for the applicable quota regulation see paragraph 28 below). On 1 March 2011 the hospital’s medical board asked the regional authorities to allocate a surgery quota to the applicant. 19. On 9 September 2011 the detention authorities paid for an MRI for the applicant in a civilian hospital.", "On the basis of that examination, a civilian doctor confirmed three days later that spine surgery was required. 20. In the meantime, the applicant brought a tort action with the Toguchinskiy District Court of Novosibirsk Region, complaining about the authorities’ failure to provide him with effective medical assistance, in particular, the required spine surgery. 21. On 23 November 2011 the District Court dismissed the applicant’s claim, finding that he had been provided with the required medical assistance.", "As regards the subject of the claim, the alleged failure to perform spine surgery, the court noted that the authorities had already asked for a surgery quota to be allocated to the applicant. 22. On 29 March 2012 the Novosibirsk Regional Court upheld the judgment on appeal and it became final. 23. On 5 July 2012 the Novosibirsk Regional Court refused to reopen the case by way of a cassation appeal, affirming the lower courts’ decisions.", "24. On 7 November 2012 a special medical board at the Novosibirsk Research Institute of Traumatology and Orthopaedics, the regional medical authority in charge of quota distribution, refused to allocate one to the applicant. Conservative treatment was recommended. 25. In 2012 and 2013 the applicant went to the prison hospital for several courses of inpatient treatment.", "No positive effect on his spine condition was recorded. 26. The applicant was released on parole on 19 July 2013. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 27.", "The relevant general provisions of domestic and international law on the general health care of detainees are set out in Ivko v. Russia (no. 30575/08, §§ 55-62, 15 December 2015). 28. Order no. 1689н, issued on 28 December 2011 by the Russian Healthcare Ministry, regulates the procedure for admitting patients to treatment which requires the use of advanced technology.", "The doctor in charge of treating the person has to prepare medical documents for the allocation of a quota and should submit them to a hospital board, which, within three working days, has to render a decision as to whether the quota application should be forwarded to the regional authorities for a final decision (paragraphs 4-7). If the hospital board’s decision is positive, the patient’s medical file must be sent within the following three days to the regional authorities. Those authorities must make a decision on the quota allocation within ten days of receipt of the patient’s documents (paragraph 11). 29. The provisions of domestic law establishing the legal avenues for complaints about the quality of medical services are cited in the following judgments: Patranin v. Russia (no.", "12983/14, §§ 86-88, 23 July 2015); Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013); Dirdizov v. Russia (no. 41461/10, §§ 47-61, 27 November 2012); and Koryak v. Russia (no. 24677/10, §§ 46-57, 13 November 2012). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant complained that the authorities had not taken any steps to safeguard his health and well-being by failing to provide him with adequate medical assistance for his spine condition. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 31. The Government argued that the applicant had received adequate medical care while in detention. They stated that he had been under the supervision of various doctors, had regularly undergone the necessary medical tests and had received the full range of medical treatment.", "They also noted that the applicant’s health had not worsened in detention. 32. The applicant submitted that the medical care he had received for his spine condition had been deficient, in particular because of the numerous delays in examinations and treatment. He underlined that his health had deteriorated significantly while in detention and that he had become disabled. B.", "The Court’s assessment 1. 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.", "2. Merits (a) General principles 34. The applicable general principles are set out in the cases of Blokhin v. Russia [GC] (no. 47152/06, §§ 135-40, ECHR 2016); Wenner v. Germany (no. 62303/13, §§ 54-58, 1 September 2016); and Ivko (cited above, §§ 91-95).", "(b) Application of the general principles to the present case 35. The Court observes that contrary to the Government’s submissions the applicant’s health deteriorated significantly in detention. He developed a serious medical condition associated with pain and weak limbs. He was certified as having a second-degree disability on account of that illness (see paragraph 15 above). The illness significantly affected his everyday functioning and he was likely to have experienced considerable anxiety as to whether the medical care provided to him was adequate.", "36. The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (Blokhin, cited above, § 137). It refers, among other things, to the promptness of the authorities’ response to a patient’s health problem, which is the core of the case at hand. 37. Turning to the substance of the applicant’s complaint, the Court observes that the most significant delay in his treatment related to the spine surgery he had been prescribed.", "It notes that the medical authorities apparently became aware of the ineffectiveness of his conservative treatment in 2008, when they applied for neurosurgical treatment in Gaaza Prison Hospital. In any event, spine surgery was clearly prescribed for the applicant by the chief specialist in traumatology of the Novosibirsk Region on 24 February 2011. However, the decision on whether the applicant could actually receive it was only taken on 7 November 2012, that is to say more than twenty months later. 38. Although the Court is not prepared to criticise the existence of the quota system itself, which might be a temporary and induced response to difficulties surrounding access to complex, high-tech, modern treatment, it cannot overlook the very delayed response to the applicant’s medical needs, which manifestly exceeded the time-limits set by domestic regulations (see paragraph 28 above).", "39. Given the seriousness of the applicant’s condition and its negative evolution, the Court considers that it was unacceptable to delay the decision on the quota allocation for such a long period of time without any good reason. It notes that, firstly, the delay jeopardised the chances of the applicant’s treatment having any real prospect of success, and, secondly, it undermined the credibility of the final conclusions, which had to be built on outdated medical information. Thirdly, it impeded the assessment of other treatment strategies, and, lastly, the prolonged situation of uncertainty likely caused the patient serious mental suffering. 40.", "In the light of the foregoing considerations, the Court finds that the applicant’s medical needs were not addressed in a timely manner. Accordingly, the medical treatment he received was not adequate and thus the applicant was left in a situation of fear and anxiety as to the prospects for his treatment on the background of a rapidly deteriorating condition. Consequently, the Court finds that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 41.", "The applicant also claimed that he had not had at his disposal an effective remedy to complain about the violation of the guarantee against ill-treatment, as required under Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...” A. Submissions by the parties 42. The Government submitted that the applicant had had effective domestic remedies at his disposal and that he had made use of them, in particular, by raising his grievances before the prosecutor and domestic courts. 43. The applicant maintained his complaint. B.", "The Court’s assessment 1. Admissibility 44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) General principles 45. For a summary of the relevant general principles see Litvinov v. Russia, no. 32863/13, §§ 73-77, 22 March 2016. (b) Application of the general principles to the present case 46.", "The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Urazov v. Russia, no. 42147/05, §§ 66-70, 14 June 2016; Makshakov v. Russia, no. 52526/07, §§ 86-89, 24 May 2016; Litvinov, cited above, §§ 78-81; Navalnyy and Yashin v. Russia, no. 76204/11, § 106, 4 December 2014; Gorbulya v. Russia, no. 31535/09, §§ 56-58, 6 March 2014; Reshetnyak v. Russia, no.", "56027/10, §§ 65-73, 8 January 2013; and Koryak v. Russia, no. 24677/10, §§ 86-93, 13 November 2012). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government, including a complaint to a prosecutor’s office or a court, constituted an effective remedy to prevent the alleged violations, stop them from continuing, or provide applicants with adequate and sufficient redress for complaints under Article 3 of the Convention. 47. Having regard to the absence of any new arguments from the Government on the existence of effective remedies satisfying the requirements of Article 13 of the Convention in the present case, the Court cannot depart from its well-established case-law on the issue.", "It sees no legal avenues that could have constituted an effective remedy for the applicant’s complaints under Article 3 of the Convention. Accordingly, the Court finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention. 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 applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage. 50. The Government insisted that the applicant’s rights had not been violated and submitted that, in any event, the claim was excessive. 51.", "The Court, making its assessment on an equitable basis, awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 52. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award 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. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical treatment in detention; 3.", "Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy to complain about the lack of adequate medical assistance in detention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), in respect of non‑pecuniary damage, plus any tax that may be chargeable to him, 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 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF PONOMARENKO v. UKRAINE (Application no. 20930/06) JUDGMENT STRASBOURG 21 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Ponomarenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Rait Maruste, President,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 30 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20930/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Maksim Alekseyevich Ponomarenko and Mrs Svetlana Vitalyevna Ponomarenko (“the applicants”), on 16 May 2006.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. 3. On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaint about the length of the proceedings to the Government. In accordance with Protocol No.", "14, the application was assigned to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1968 and live in Kremenchug. 5. On 7 August 1997 they instituted court proceedings against the U. bank in a dispute over a contract of pledge of a car.", "6. On 18 February 2002 the Svitlovodsk Court delivered a judgment in the case. On 27 June 2002 the Kirovograd Regional Court of Appeal upheld it. On 10 November 2004 the Supreme Court quashed the above decisions and remitted the case for fresh consideration. 7.", "On 8 November 2005 the Svitlovodsk Court partially allowed the applicants' claim, declared the contract of pledge invalid and ordered the U. bank to pay the applicants certain amounts for the cost of the car, inflation losses and exemplary damages. 8. On 23 December 2005 the Court of Appeal quashed the above judgment in the part concerning the award and upheld its remainder. 9. On 16 June 2006, following the applicants' failure to lodge their appeal in cassation in accordance with the procedural requirements, the Supreme Court returned it unexamined.", "10. According to the Government, in the course of the proceedings three hearings were adjourned due to the applicants' failure to appear and four hearings were adjourned due to both parties' failure to appear. The applicants disagreed stating that they had not attended only two hearings. Seven other hearings were adjourned upon the respondent's request, for third party's failure to appear or due to the absence of a judge. THE LAW I.", "SCOPE OF THE CASE 11. Following the Court's partial admissibility decision, the applicants made further submissions, in which they reiterated some of their original complaints and introduced a new complaint under Articles 6 § 1 and 13 of the Convention of lack of access to the Supreme Court, which had returned their appeal in cassation unexamined. 12. The Court notes that in its partial admissibility decision it adjourned the examination of the applicants' complaint about the length of the proceedings and declared the remaining complaints inadmissible. As to the newly-introduced complaint, the Court considers that it is not an elaboration of the applicants' original complaint about the length of the proceedings, on which the parties have commented (see Piryanik v. Ukraine, no.", "75788/01, § 20, 19 April 2005). Therefore, the scope of the case before the Court is now limited to the length-of-proceedings complaint. New complaints will be dealt with in a separate application. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13.", "The applicants complained that the length of the court 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...” 14. The Government contested that argument. 15. The Court notes that the period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.", "The period in question ended on 16 June 2006. The proceedings thus lasted for about eight years and nine months and involved the courts of three levels of jurisdiction. A. Admissibility 16. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 17. The 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).", "18. Turning to the circumstances of the case, the Court notes that neither its complexity nor the conduct of the applicants, who somewhat contributed to the length of the proceedings (see paragraphs 9 and 10 above), can explain their overall duration. On the other hand, it finds that the major delays were caused by the lengthy examination of the case by the Svitlovodsk Court (see paragraphs 5 and 6 above) and by the Supreme Court (see paragraph 6 above). It concludes, therefore, that the main responsibility for the length of the proceedings rested with the State. 19.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006). 20. 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 violation of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 22. The applicants claimed a sum representing the cost of their car for pecuniary damage and 5,000 euros (EUR) for non-pecuniary damage. 23. The Government contested these claims. 24.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards them jointly EUR 1,600 under that head. B. Costs and expenses 25.", "The applicants claimed certain sums in costs and expenses incurred in the domestic proceedings (legal fees, postal and travel expenses) and 2,000[1] Ukrainian hryvnias (UAH) for legal assistance before the Court. They also claimed UAH 105.07[2] for correspondence expenses incurred before the Court having provided postal receipts. 26. The Government contested the claims for costs and expenses in the domestic proceedings and legal costs before the Court stating that they were unrelated to the Court proceedings and not supported by documents. As to the correspondence expenses incurred before the Court, the Government challenged them in part and left their remainder to the Court's discretion.", "27. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria and to the documents submitted by the applicants, the Court awards them jointly EUR 10 for correspondence expenses incurred by them in the proceedings before it. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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 applicants jointly, within three months, EUR 1,600 (one thousand six hundred euros) in respect of non-pecuniary damage and EUR 10 (ten euros) in respect of costs and expenses, plus any tax that may be chargeable on the above amounts, 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 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 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy Registrar President [1]. About EUR 195 [2]. About EUR 10" ]

[ "FIRST SECTION CASE OF FABBRINI v. ITALY (Application no. 33115/96) JUDGMENT (Friendly settlement) STRASBOURG 15 November 2002 This judgment is final but it may be subject to editorial revision. In the case of Fabbrini v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF. Tulkens,MrP.", "Lorenzen,MrsN. Vajić,MrE. Levits,MrA. Kovler, judges,MrG. Raimondi, ad hoc judge,and Mr E. Fribergh, Section Registrar, Having deliberated in private on 24 October 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 33115/96) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Alberto Fabbrini (“the applicant”), on 12 June 1996. 2. The applicant was represented by Mr G. Viligiardi, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-agent, Mr V. Esposito.", "3. The applicant complained about his prolonged inability – through lack of police assistance – to recover possession of his apartment and about the duration of the eviction proceedings. 4. The case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.", "5. On 25 May 2000, having obtained the parties’ observations, the Court declared the application admissible. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.", "7. On 23 September 2002 and on 9 October 2002 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 8. The applicant is the owner of an apartment in Florence, which he had let to A.B. 9.", "In a registered letter of 26 March 1984, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1986 and asked him to vacate the premises by that date. 10. On 8 April 1986, he served a notice to quit on the tenant, but he refused to leave. 11. In a writ served on the tenant on 22 April 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.", "12. By a decision of 2 May 1986, which was made enforceable on 7 July 1986, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988. 13. On 13 July 1988 and again on 13 May 1989, the applicant served notice on the tenant requiring him to vacate the premises. 14.", "On 2 May 1989 the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 15. On 17 June 1989 he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 August 1989. 16. Between 7 August 1989 and 15 October 1996, the bailiff made fifteen attempts to recover possession.", "Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 17. On 7 April 1997, the applicant repossessed the premises. THE LAW 18. On 9 October 2002 the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay 2,200 (two thousand two hundred) Euros to Mr Alberto Fabbrini with a view to securing a friendly settlement of the application registered under no.", "33115/96. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months starting from the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present case. The Government further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.” 19.", "On 23 September 2002 the Court received the following declaration signed by the applicant: “I note that the Government of Italy are prepared to pay a sum totalling 2,200 (two thousand two hundred) Euros covering both pecuniary and non-pecuniary damage and costs to Mr Alberto Fabbrini with a view to securing a friendly settlement of application no. 33115/96 pending before the Court. I accept the proposal and waive any further claims in respect of Italy relating to the facts of this application. I declare that the case is definitely settled. This declaration is made in the context of a friendly settlement which the Government and the applicant have reached.", "I further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court’s judgment.” 20. 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). 21. 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 15 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF I.B. v. GREECE (Application no. 552/10) JUDGMENT STRASBOURG 3 October 2013 FINAL 03/01/2014 This judgment has become final under Article 44 § 2 of the Convention. In the case of I.B. v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 10 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 552/10) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr I.B. (“the applicant”), on 2 December 2009. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2.", "The applicant was represented by Mr G. Letsas and Ms. V. Mantouvalou, lawyers practising in London. The Greek Government (“the Government”) were represented by the delegates of their Agents, Ms G. Papadaki, Adviser at the State Legal Council, and Ms M. Germani, Legal Assistant at the State Legal Council. 3. The applicant alleged, in particular, a violation of Article 14 of the Convention taken in conjunction with Article 8. 4.", "By a decision of 28 August 2012, the Chamber declared the application partly admissible. 5. The applicant and the Government each filed further observations (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1980 and lives in Athens. 7. The applicant had been working for a jewellery manufacturing company since 2001. On 4 March 2003 he resigned from his post in order to carry out his military service. Afterwards he contacted S.K., the owner of the company, who hired him again on a full-time basis from 1 July 2004 on a monthly salary of 722.92 euros (EUR).", "8. In January 2005 the applicant told three of his colleagues – I.M., S.M. and O.G. – that he feared he had contracted the human immunodeficiency virus (HIV). On 11 February 2005, while he was on annual leave, that fear was confirmed by a test establishing that he was indeed HIV-positive.", "On 15 February his employer, S.K., received a letter from the three above-mentioned employees in which they told her that the applicant “had Aids” and that the company should dismiss him before the end of his annual leave. All three colleagues had tested negative for Aids. 9. In the meantime information about the applicant’s health condition had spread throughout the entire company of seventy employees. The staff started complaining to their employer about having to work with a colleague who was HIV-positive and demanded his dismissal.", "S.K. then invited an occupational-health doctor to come to the company premises and talk to the staff about HIV and how it could be transmitted. The doctor attempted to reassure the staff by explaining the precautions to be taken but they continued to demand the applicant’s dismissal. S.K. then considered transferring the applicant to another department at a different location, but the head of that department threatened to resign if the applicant joined his team.", "S.K. then offered to help the applicant set up his own business if he would tender his resignation. She also offered to pay for him to attend a training course in hairdressing. The applicant refused her offers however. 10.", "On 21 February 2005 thirty-three employees of the company (approximately half the total number of staff) sent a letter to S.K. asking her to dismiss the applicant in order to “preserve their health and their right to work”, failing which the harmonious atmosphere in the company would, in their view, be liable to deteriorate. On 23 February 2005, two days before the applicant returned from leave, S.K. dismissed him and paid him the statutory compensation due under Greek law, namely, one month’s salary and EUR 843.41 in respect of holiday leave. 11.", "Shortly after his dismissal the applicant found another job in a private company. 12. On 13 May 2005 the applicant brought proceedings in the Athens Court of First Instance. He complained that “unacceptable social prejudices and outdated taboo considerations” had prevailed over recognition of his contribution to the company where he had worked. He also claimed that he had been unfairly dismissed and that his dismissal was invalid because he had not been paid sufficient compensation.", "He alleged that he had been dismissed on the basis of “despicable considerations” which took no account of the “human factor or his person”, that his employer “had remained manifestly indifferent to the fact that she had thus seriously harmed a hard-working and conscientious employee at the very time when basic humane considerations required that he be supported and had at the same time callously insulted him”, and that his employer had “treated him with an unjustified and inhumane aversion for his serious health problem”. 13. The applicant added that the only reason that had led S.K. to dismiss him had been (scientifically unfounded) prejudice against HIV-positive persons and the alleged “risk” that they posed in their professional and social relations. It was therefore clear, in the applicant’s view, that S.K.’s conduct had brutally violated his personality rights, in particular the most intimate ones concerning sensitive personal details.", "The manner in which he had been dismissed had diminished unacceptably his value as a human being by reducing him to an “object” that could be handled according to “personal prejudices and obsessions”. 14. The applicant asked the court to declare the termination of the contract unlawful, order the employer to continue employing him and paying him a salary, and to pay him EUR 9,397 in unpaid salaries, EUR 1,068.62 in holiday bonuses and various other amounts calculated by him and, lastly, the sum of EUR 200,000 for non-pecuniary damage. 15. In a judgment of 13 June 2006 the court held that the dismissal was unlawful, as contrary to Article 281 of the Civil Code which prohibited the exercise of a right if it manifestly exceeded the limits imposed by good faith or morals.", "The court found that the sole ground for terminating the contract had been the applicant’s illness and awarded him EUR 6,339.18, which corresponded to unpaid salaries since his dismissal. The court considered that the employer’s conduct, even taking account of the pressure exerted by her employees, had constituted an abuse of rights. It found that the employer had decided to dismiss the applicant in order to ensure that her company continued operating smoothly and to avoid protests and complaints, thus currying favour with the majority of her staff. 16. However, the court rejected the applicant’s complaint that his dismissal had violated his personality rights because it had not been established that the dismissal had been motivated by reprehensible intent or an intention to defame the applicant.", "The court found, however, that S.K. had dismissed the applicant in order to preserve what she had wrongly believed to be an issue of peaceful working relations within the company. Lastly, the court held that it was not necessary to order the applicant’s reinstatement because he had found a new job in the meantime. 17. On 26 February and 15 March 2007 respectively, S.K.", "and the applicant lodged an appeal against that judgment with the Athens Court of Appeal. 18. In a judgment of 29 January 2008, the Court of Appeal dismissed S.K.’s appeal and upheld the applicant’s appeal on both grounds, namely, abuse of rights and violation of personality rights. Like the Court of First Instance, the Court of Appeal acknowledged that S.K. had dismissed the applicant after giving in to pressure from staff and in order to preserve a good working environment in the company.", "The Court of Appeal observed that the employees’ fears were scientifically unfounded, as the occupational-health doctor had explained. Given the mode of transmission of the virus, there was no danger to their health. Accordingly, their fears were in reality based on prejudice rather than on an established risk; consequently, the applicant’s illness could not affect the future smooth operation of the company. 19. The Court of Appeal weighed the need to maintain the smooth operation of the company, which was threatened by scientifically unfounded fears, against the applicant’s justified expectation of being protected during the difficult period he was experiencing.", "It noted that where an employee’s illness did not adversely affect work relations or the smooth operation of the company (through absenteeism or reduced working capacity, for example), it could not serve as an objective justification for terminating the contract. It noted that the applicant had not been absent from work and that no absence on the ground of illness was foreseeable in the immediate future. Moreover, the nature of the applicant’s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV-positive, his or her working capacity was not substantially reduced. 20. It observed that the applicant’s illness could not adversely affect the future smooth operation of the company, as none of the employees had left the company between the time when the applicant’s illness had been revealed and the termination of his employment contract.", "It concluded that the fact that S.K. “had given in to the demands of her employees, dismissed the applicant and terminated his contract could not be justified on grounds of good faith or the employer’s interests within the proper meaning of the term”. 21. The Court of Appeal awarded the applicant the sum of EUR 6,339.18 in unpaid salaries backdated to the date of his dismissal. It also held that the applicant’s personality rights had been infringed as his unfair dismissal had affected both his professional and social status, which were the two facets of an individual’s personality.", "It awarded him the further sum of EUR 1,200 for non-pecuniary damage under that head. 22. On 4 July 2008, S.K. appealed on points of law against the Court of Appeal’s judgment. 23.", "On 16 October 2008 the applicant also lodged an appeal against the Court of Appeal’s judgment. He relied on Articles 180 (nullity of a legal act), 281 (abuse of rights) and 932 (compensation for non-pecuniary damage) of the Civil Code, on Article 22 (right to work) of the Constitution, and on the principle of proportionality regarding the amount of the compensation awarded. Relying on the case-law of the Court of Cassation, he also submitted that where a dismissal had been set aside by a judicial decision as unfair, the employer was under an obligation to reinstate the employee. More specifically, in his second ground of appeal, the applicant submitted that the Court of Appeal had wrongly rejected his request to be reinstated in the company, arguing that reinstatement was the rule in the event of a breach of Article 281, or in the event of an infringement of personality rights or of the right to personal development and participation in professional life. 24.", "In judgment no. 676/2009 of 17 March 2009 (finalised on 4 June 2009), the Court of Cassation quashed the Court of Appeal’s judgment on the ground, inter alia, that the court had wrongly construed and applied Article 281 of the Civil Code to the facts of the case. It found that termination of an employment contract was not unfair if it was justified by the employer’s interests “in the proper sense of the term”, such as the restoration of peaceful working relations between employees and the smooth operation of the company where these were liable to be disrupted by maintaining the dismissed employee in his or her post. The Court of Cassation held as follows: “As the dismissal ... was not motivated by ill-will, revenge or any aggressivity on the part of [the employer] towards [the employee], the dismissal was fully justified by the interests of the employer, in the proper sense of the term [interests], in that it was done in order to restore peace in the company and its smooth operation. The employees were seriously perturbed by the extremely serious and contagious illness of the [applicant], which aroused feelings of insecurity among them and fears for their health, prompting them to request – collectively and in writing – his dismissal and stress that if he were not dismissed the smooth operation of the company would be severely affected ...” 25.", "Lastly, the Court of Cassation dismissed the applicant’s appeal as devoid of purpose and remitted the case to the Court of Appeal. 26. Neither the applicant nor his former employer took the initiative reserved to them by statute of applying to the Court of Appeal for a ruling on the case remitted to it. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Domestic law 27. The relevant Articles of the Greek Constitution provide as follows. Article 9 § 1 “... An individual’s private and family life is inviolable ...” Article 22 § 1 “Work constitutes a right and shall enjoy the protection of the State, which shall seek to create conditions of employment for all citizens and shall promote the moral and material advancement of the rural and urban working population. ...” Article 25 § 1 “The rights of human beings as individuals and members of society and the principle of the constitutional welfare state are guaranteed by the State. All agents of the State shall be obliged to ensure the unhindered and effective exercise thereof.", "Where appropriate, these rights shall also apply to the relations between individuals. Restrictions of any kind which, according to the Constitution, may be imposed upon these rights, shall be provided for either directly by the Constitution or by statute ... and shall respect the principle of proportionality.” 28. Section 1 of Law no. 2112/1920 on dismissal and the termination of employment contracts in the private sector provides: “A private-sector employee recruited on a contract of indefinite duration who has been employed for more than two months cannot be dismissed without prior written notice of termination of the employment contract ...” 29. The relevant sections of Law no.", "3304/2005 on equal treatment (race, nationality, religion, age, sexual orientation) read as follows. Section 1 – object “The object of the present Law is the adoption of a general regulatory framework in which to combat discrimination based on religion or other beliefs, disability, age or sexual orientation in the sphere of employment ... and to ensure that the principle of equal treatment is applied.” Section 2 – principle of equality of treatment “1. Direct or indirect discrimination on one of the grounds referred to in section 1 shall be forbidden. 2. Harassment ..., with the aim or effect of adversely affecting a person’s dignity and creating an intimidating, hostile, degrading, humiliating or aggressive environment, shall also be regarded as discrimination.” Section 10 – reasonable measures accommodating disabled persons “In order to comply with the principle of equal treatment of disabled persons, the employer must take all necessary measures required in the circumstances to ensure that disabled persons have access to a workstation, can carry on an activity and develop professionally, and take part in professional training, in so far as such measures do not impose an unreasonable burden on the employer ...” Section 12 – positive action and special measures “1.", "It shall not be discriminatory to adopt or maintain special measures designed to prevent or compensate for disadvantages based on religious grounds or other beliefs, or grounds of disability, age or sexual orientation. 2. It shall not be discriminatory to adopt or maintain measures protecting the health and safety of disabled persons in the workplace or measures creating or maintaining the conditions or facilities for preserving and promoting their integration in the activity and work.” B. The National Commission for Human Rights 30. On 27 January 2011 the National Commission for Human Rights drew up a report on “issues relating to the protection of the rights of HIV-positive persons”.", "The introduction to the report reads as follows. “The National Commission for Human Rights has been prompted to examine issues relating to the protection of the rights of HIV-positive persons by the observed lack of enjoyment of fundamental rights by the said individuals, which is exacerbated by stigmatisation, manifestations of intolerance, violations of confidentiality and other forms of social discrimination to their detriment. The impetus for this was judgment no. 676/2009 of the Court of Cassation, in which that court actually upheld the lawfulness of the dismissal of an HIV-positive employee and endorsed the conditions in which he was dismissed. Having regard to the importance of that decision – which is the first judicial ruling of its kind in the judicial annals of the country – and to the fact that it highlighted a unique but important aspect of the problems facing HIV-positive persons, the Commission organised a consultation with several other organisations and institutions campaigning for the protection of the rights of such persons.", "A number of issues were raised during the discussion, but the ones considered to be the most important were the following: a) stigmatisation as a result of HIV/Aids, b) discriminatory treatment of persons infected with the virus, particularly in the workplace, c) access by such persons to health services, and d) protection of their private life.” 31. In its final considerations the Commission observed: “There is a current and pressing need to protect the rights of HIV-positive persons and to institutionalise and apply the fundamental principles on which these rights are based, having regard to the fact that, according to the latest official statistics, the disease appears to have reached alarming levels in our country. The risks do not stem only from the disease itself and the fact that it is spreading, but also from the formation and consolidation of dangerous and scientifically unfounded misconceptions through court rulings which maintain that HIV-positive employees constitute a ‘danger’ in their workplace. Lastly, we should point out that the protection of the rights of HIV-positive persons does not concern them alone but public health in general, in that if these people are not protected they will hesitate to be tested ... which will undermine the efforts being made by public-health organisations to limit the spread of the disease.” III. RELEVANT EUROPEAN AND INTERNATIONAL INSTRUMENTS A.", "International Labour Organization (ILO) Recommendation concerning HIV and AIDS and the World of Work, 2010 (no. 200) 32. This Recommendation is the first human rights instrument on HIV and Aids in the world of work. It was adopted, by a large majority, by government representatives, employers and workers of the member States of the ILO at the International Labour Conference in June 2010. It provides, inter alia, as follows.", "“3. ... (c) [T]here should be no discrimination against or stigmatization of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status or the fact that they belong to regions of the world or segments of the population perceived to be at greater risk of or more vulnerable to HIV infection; ... 9. Governments, in consultation with the most representative organizations of employers and workers, should consider affording protection equal to that available under the Discrimination (Employment and Occupation) Convention, 1958, to prevent discrimination based on real or perceived HIV status. 10. Real or perceived HIV status should not be a ground of discrimination preventing the recruitment or continued employment, or the pursuit of equal opportunities consistent with the provisions of the Discrimination (Employment and Occupation) Convention, 1958.", "11. Real or perceived HIV status should not be a cause for termination of employment. Temporary absence from work because of illness or caregiving duties related to HIV or AIDS should be treated in the same way as absences for other health reasons, taking into account the Termination of Employment Convention, 1982. 12. When existing measures against discrimination in the workplace are inadequate for effective protection against discrimination in relation to HIV and AIDS, Members should adapt these measures or put new ones in place, and provide for their effective and transparent implementation.” B. Texts of the Parliamentary Assembly of the Council of Europe 33.", "The Parliamentary Assembly of the Council of Europe (PACE) has raised the question of HIV/Aids in a number of documents. In its Recommendation 1116 (1989) on Aids and human rights, it stated the following: “3. Noting that, although the Council of Europe has been concerned with prevention ever since 1983, the ethical aspects have been touched upon only cursorily; 4. Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids; 5. Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected; ... 8.", "Recommends that the Committee of Ministers: A. instruct the Steering Committee for Human Rights to give priority to reinforcing the non-discrimination clause in Article 14 of the European Convention on Human Rights, either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law; ...” 34. In its Resolution 1536 (2007) on HIV/Aids in Europe, PACE reaffirmed its commitment to combating all forms of discrimination against persons living with HIV/Aids: “9. While emphasising that the HIV/Aids pandemic is an emergency at the medical, social and economic level, the Assembly calls upon parliaments and governments of the Council of Europe to: 9.1. ensure that their laws, policies and practices respect human rights in the context of HIV/Aids, in particular the right to education, work, privacy, protection and access to prevention, treatment, care and support; 9.2. protect people living with HIV/Aids from all forms of discrimination in both the public and private sectors ...” C. The International Covenant on Economic, Social and Cultural Rights 35. Article 2 § 2 of the International Covenant on Economic, Social and Cultural Rights provides that the rights enunciated in the Covenant “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In its General Comment on Non-Discrimination (No.", "20, 2009), the United Nations Committee on Economic, Social and Cultural Rights expressly stated that the expression “other status” appearing at the end of Article 2 § 2 of the Covenant included health status, in particular HIV status: “33. Health status refers to a person’s physical or mental health. States parties should ensure that a person’s actual or perceived health status is not a barrier to realizing the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person’s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum ...” D. Judgment of the South African Constitutional Court in the case of Hoffmann v. South African Airways 36.", "In the case of Hoffmann v. South African Airways (CCT 17/00) of 28 September 2000, an application had been made to the Constitutional Court against a decision of the Witwatersrand High Court regarding discrimination in the employment of Mr Hoffmann as a cabin attendant for the airline company South African Airways on the ground that he was HIV-positive. The company relied on three arguments: the negative reaction of HIV-positive persons to the yellow fever vaccine; the risk of transmitting diseases to passengers and other members of the company; and the low return on investment in such staff as they had a lower life expectancy than the others. 37. The Constitutional Court unanimously held that such discrimination had breached Mr Hoffmann’s constitutional rights. 38.", "Firstly, it held that a distinction had to be made between HIV-positive persons and persons suffering from immune deficiency. It observed that Mr Hoffmann had been only HIV-positive at the time of his dismissal and the court’s decision. It added that the practice of other foreign airlines had no bearing on an examination of the constitutionality of the decision. Secondly, it recognised that a company’s commercial concerns were legitimate but considered that these should not serve as a pretext for denying elementary fundamental rights such as compassion and tolerance of others. Having regard to those overriding considerations, persons infected with HIV were in a particularly fragile situation which required full protection under the legal system.", "Accordingly, the court held that the violation of Mr Hoffmann’s rights required the airline to offer him a job forthwith and to bear the costs of the proceedings. IV. COMPARATIVE LAW MATERIAL 39. A comparative study of the legislation of thirty member States of the Council of Europe on the protection provided under domestic law to HIV-infected persons from discrimination in the employment context shows that seven States – Albania, Azerbaijan, Italy, the Republic of Moldova, Romania, the United Kingdom and Russia – have passed specific legislation in this respect. In the twenty-three other States, which have not passed specific legislation, HIV-positive persons who face differences in treatment in the workplace can rely on the general provisions of domestic law governing non-discrimination.", "The decisions of the domestic courts and other bodies for human rights protection in some of these States show that they grant protection against dismissal to HIV-positive persons through the prohibition imposed on other grounds of discrimination, such as health or disability. 40. In France, for example, on 6 September 2012 the Equal Treatment Commission (the Human Rights Council since October 2012) found that the Law on equal treatment of persons suffering from a disability or chronic illness did not oblige an employee (the case in question concerned the dismissal of an HIV-positive employee of a licensed bar) to disclose his or her illness unless he or she would otherwise be unable to perform the work. The Commission also found that the supposed prejudice of customers towards HIV-positive persons did not justify terminating the contract. 41.", "On 13 December 1995 the Pontoise Criminal Court, in France, sentenced an employer to five months’ imprisonment, suspended, and ordered him to pay EUR 3,000 in damages for dismissing – purportedly on economic grounds – one of his employees, a veterinary assistant who was HIV-positive. 42. Even before the enactment in Belgium of the Law of 10 May 2007 on combating certain forms of discrimination, the Dendermonde Labour Court had held, on 5 January 1998, that an employer had abused his right to terminate an employment contract by dismissing an employee solely on account of his HIV infection. 43. The Swiss Federal Supreme Court (judgment BGE 127 III 86) held that dismissal from work solely on account of HIV infection was discriminatory and unfair for the purposes of Article 336 of the Code of Obligations.", "44. On 18 October 2004 the Poltava Regional Court, in Ukraine, ordered the editor of a newspaper to pay compensation to a journalist who had been dismissed because he was HIV-positive. 45. In Croatia, following the intervention of the Ombudsman, the Police Internal Rules, which had previously provided that an HIV-positive person could neither become nor remain a serving police officer, were amended. 46.", "On 23 November 2009 the Polish Constitutional Court declared unconstitutional a provision of the Ministry of Interior’s Regulations according to which any police officer who was HIV-positive should automatically be declared unfit for service. 47. On 26 April 2011 the Russian Supreme Court declared inoperative a provision of the Civil Aviation Regulations forbidding HIV-positive persons from working as pilots on any type of aircraft. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 48.", "The applicant complained of a violation of his right to private life, alleging that the Court of Cassation had ruled that his dismissal on the ground of his HIV status had been lawful. He also submitted that his dismissal had been discriminatory and that the Court of Cassation’s reasoning, according to which his dismissal had been justified by the need to preserve a good working environment in the company, was not a valid basis for differential treatment compatible with Article 14. He relied on Article 14 of the Convention taken in conjunction with Article 8. Those provisions are worded as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties’ submissions 1. The Government 49. The Government conceded that any dismissal of an employee would doubtless have an impact on his or her private life.", "However, that did not suffice to render Article 8 applicable. According to the Court’s case-law, a dismissal did not raise a problem under Article 8 unless it entailed broader consequences for the employee, such as an inability to find another job, and not merely the loss of his or her post. The applicant’s dismissal had not had the effect of excluding him from the job market (as had been the case in Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004‑VIII), or of generally depriving HIV-positive persons of the right to employment. The applicant had found work shortly after he was dismissed.", "Article 8 protected the relations that both parties intended to forge, whereas in the applicant’s case his colleagues had not wanted to work with him. Lastly, the applicant’s employer had not misused information relating to the applicant’s health status. 50. According to the Government, the applicant had not been a victim of discrimination either. His employer had dismissed him out of concern to protect the company’s interests and secure peaceful working relations, not because of prejudice against his HIV status.", "The fact that the Court of Cassation had recognised that he had been dismissed on that basis did not mean that it had been prejudiced or biased against the applicant. Its reasoning had not hinged on the fact that the applicant was HIV-positive. Furthermore, the applicant’s employer, S.K., had not been at an advantage before the Court of Cassation on account of not being HIV-positive. 51. The Government submitted that the applicant’s health and his continued employment in the company had not been the subject of “negotiation” between the employer and the applicant’s colleagues.", "The employer had tried to find a solution which, without endangering the survival of her company, would take account of the applicant’s interests. She had examined the possibility of taking less radical measures than dismissal and had tried to help the applicant by offering him a training course in hairdressing or helping him to set up his own business. When all those attempts failed, the employer had put her personal interests – preserving the smooth operation of the company – above the applicant’s interests and had decided to dismiss him. The employer could not have ignored her employees’ fears. Ensuring a harmonious working environment was not only a right of the employer but also an obligation towards his or her employees.", "The fact that an employer had put her personal interests above those of one of her employees and had not reacted in a “desirable” way – namely, by ignoring her employees’ fears – and the fact that the Court of Cassation had not compelled that employer to do what would have been “desirable” did not amount to a violation of the Convention. 52. The Government submitted that the cases of Obst v. Germany (no. 425/03, 23 September 2010) and Schüth v. Germany (no. 1620/03, ECHR 2010), relied on by the applicant, weighed more heavily in favour of a finding of no violation.", "In the latter judgment in particular the Court had attached special weight to the fact that the applicant’s dismissal might make it totally impossible for him to find employment, which was not the case in the present situation. As the applicant had been hired by another company shortly after his dismissal, it had not had the effect of stigmatising him or debarring him from professional or social life. 53. The Government considered that the present case had to be distinguished from Kiyutin v. Russia (no. 2700/10, ECHR 2011), in which the restrictions imposed on the applicant’s rights were the result of a State action.", "In the present case the alleged discriminatory treatment had been the act of an individual and the Court of Cassation had had the task of examining a dispute between individuals. Furthermore, the European consensus observed by the Court in Kiyutin had concerned the entry, stay and residence of HIV-positive persons in the member States of the Council of Europe; it had not concerned the degree of responsibility of individuals, nor had it compared their responsibility with that of the State. 54. The Government pointed out that the Court of Cassation had not deemed the fears of the applicant’s colleagues worthy of protection. Its judgment had been neither arbitrary nor unreasonable even if the State’s margin of appreciation was considered to be limited on account of the fact that the applicant was HIV-positive.", "In the present case the Greek judicial system could not require more of the employer, given that she was only an individual, that she had tried both to avoid dismissing the applicant and to help him, and that the atmosphere in the company was particularly hostile towards him. 55. The Government submitted that the applicant had not been treated unfavourably on account of his health either by the Court of Cassation or his employer. The latter had not compared the applicant’s state of health with that of her other employees; she had taken the decision to dismiss him not because he was HIV-positive but in order to restore peace in the company. 56.", "The Government argued that neither Article 8, whether taken alone or in conjunction with Article 14, nor even Protocol No. 12 required member States to introduce legislation outlawing the dismissal of HIV-positive employees from a post in the private sector. Provision for such an obligation would lead to an extension of the State’s responsibility regarding relations between individuals, whereas according to the Court’s relevant case-law the States had a wide margin of appreciation in that area. They referred to the case of Evans v. the United Kingdom ([GC], no. 6339/05, § 77, ECHR 2007‑I).", "57. In the Government’s submission, States were of course not prevented from passing legislation of that type but this could not be regarded as an obligation arising from Articles 8 and 14 of the Convention. The Greek State had in principle complied with its positive obligations regarding employment law, including in the areas in which questions could arise that affected the private life of the persons concerned. It afforded effective protection to HIV-positive employees through well-established provisions of employment law, civil law, civil procedure and provisions governing specific categories of employee (Law no. 2643/1998 on employment protection for disabled persons and Law no.", "3304/2005 incorporating Directive 2000/78/EC of the Council of the European Union of 27 November 2000 establishing a general framework for equal treatment in employment and occupation). 58. The Government observed that, relying on the relevant provisions of civil law and employment law, the applicant had brought an action in the civil courts, which had examined his case according to the special procedure applicable to employment disputes. The fact that the lower courts had found in the applicant’s favour showed that the above-mentioned provisions provided a sufficient framework for the protection of HIV-positive employees. The effectiveness of that framework could not be challenged merely because the Court of Cassation had ultimately found in favour of the applicant’s employer.", "2. The applicant 59. Relying on Sidabras and Džiautas, Obst and Schüth, all cited above; Palomo Sánchez and Others v. Spain ([GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011); and Siliadin v. France (no. 73316/01, ECHR 2005-VII), the applicant claimed that the fact that his complaint related to the circumstances of his dismissal did not render Article 8 of the Convention or the principle of positive obligations inapplicable per se.", "The factual circumstances showed that the attitude of his colleagues and of his employer had had an impact on his private life which could not be regarded as negligible. He had been the subject of immediate, direct and effective stigmatisation on the part of his colleagues and had been treated like a pariah who should no longer be entitled to work. Furthermore, his employer could, and should, have adopted a different attitude towards him and in particular insisted that his HIV status was not a ground for dismissal, rather than turning it into a subject for negotiation with her other employees. The applicant submitted that he had expressed his desire to keep his job despite the hostile reactions and social stigmatisation he had suffered. Employment was an important component of a person’s self-respect, which was essential to his or her ability to form social and private relations.", "60. The applicant also referred to a number of international instruments such as ILO Recommendation no. 200 and PACE Resolution 1536 (2007), (see paragraphs 32 and 34 above) which, in his submission, defined stigmatisation in the world of work and called for the protection of persons infected with the virus against any form of discrimination. 61. The applicant submitted that the Court of Cassation had “had an obligation”, in the circumstances of the case, to rule the dismissal unfair on the ground of discrimination.", "He considered that he had been treated less favourably than his colleagues on account of his health. If he had not contracted the virus, his colleagues would not have refused to work with him and his employer would not have dismissed him. If it were a well-established principle in Greece that an HIV-positive employee could not be dismissed, employees who harboured prejudice would know that they could not obtain a dismissal, would not disrupt the operation of the company, and would refrain from interfering in the professional and private life of the employee in question. In the present case the motives of the employees were inseparable from those of the employer and it could not be claimed that the dismissal was not discriminatory on the pretext that the employer’s motives, taken alone, constituted valid grounds for dismissal. 62.", "The applicant maintained that if it were not recognised as unlawful to dismiss a member of a vulnerable group on the ground that his or her colleagues refused to work with him or her because of prejudice, this would lead to wide-scale discrimination and exclusion: persons prejudiced against others of a particular race, ethnic background or sexual orientation could simply refuse to work with them and their employers would accordingly dismiss them. If the courts did not intervene, the prejudices of third parties would have the effect of debarring members of a vulnerable group from the majority of private-sector jobs and establishing a form of segregation between companies which employed persons from that group and those which did not. 63. The applicant submitted that, in the present case, the Court of Cassation had not weighed the need to protect HIV-positive employees from discrimination against the need for employers to protect their interests. Moreover, the Court of Cassation’s judgment was particularly succinct and had not really examined the question of the proportionality of the interference.", "64. The applicant submitted that there were a number of factors in the present case which would justify finding – as, moreover, the Court had done in Kiyutin (cited above, § 63) – that the State had a narrower margin of appreciation. Those factors were: undeniable prejudice on the part of his colleagues towards HIV-positive individuals; the fact that the latter were part of a particularly vulnerable group, were victims of systematic discriminatory treatment and suffered from stigmatisation, social exclusion and marginalisation; and the fact that HIV-positive status was irreversible and often perceived as a sign of the sexual preferences of the person concerned. Where an HIV-positive employee was dismissed, the resulting stigmatisation was devastating. He or she had to face up not only to the illness but also to the detrimental effect of being dismissed on account of the disease.", "Such stigmatisation could make it impossible to find a new job. 65. In support of his submissions, the applicant also relied on a number of judgments of the Supreme Courts of many countries which had ruled in favour of HIV-positive employees in the workplace, and particularly Hoffmann v. South African Airways of the South African Constitutional Court (see paragraphs 36-38 above) which held that prejudice against that category of persons did not constitute a legitimate professional interest. 66. Relying on Bah v. the United Kingdom (no.", "56328/07, ECHR 2011), the applicant submitted that States had to advance very weighty arguments to justify a difference in treatment based on medical conditions, such as HIV status. As the Court had stated in that judgment, a difference in treatment based on an immutable personal characteristic had to be explained in more detail than a difference in treatment based on a characteristic subject to an element of choice. In the applicant’s submission, HIV status was a condition which, once acquired, was unlikely to disappear. B. The Court’s assessment 1.", "Applicability of Article 8 taken in conjunction with Article 14 67. Regarding whether the facts of the case fall within the scope of Article 8, the Court reiterates that the notion of “private life” is a broad concept, not susceptible to exhaustive definition. It covers the physical and moral integrity of the person and sometimes encompasses aspects of an individual’s physical and social identity, including the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such (see Schüth, cited above, § 53). 68. As in Schüth, the applicant in the present case did not complain of a direct intervention by the national authorities resulting in his dismissal, but of a failure on their part to protect his private sphere against interference by his employer, which could engage the State’s responsibility (see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 60).", "69. The Court has already had the opportunity to rule, under Article 8, on cases of dismissal of employees on account of their private activities (see Obst and Schüth, cited above). Likewise, in a different context, the Court has decided that Article 8 applied in a situation where the authorities refused to grant a residence permit because the applicant was HIV-positive (see Kiyutin, cited above) or where the persons concerned were prohibited from working in the private sector on account of their previous employment (see Sidabras and Džiautas, cited above). 70. It is therefore now established that both employment matters and situations involving HIV-infected persons fall within the scope of private life.", "The Court cannot but conclude thus, since the HIV epidemic cannot be considered only as a medical problem given that its effects are felt in every sphere of private life. 71. Turning to the facts of the present case, the Court notes that there is a particularity which distinguishes it from all the above-mentioned cases: the dismissal from work of an HIV-positive employee. There is no doubt that while the stated ground for dismissing the applicant was to preserve a good working environment in the company, the triggering event was the announcement that he was HIV-positive. It was that event which prompted his colleagues to express their refusal to work with him, despite reassurances from the occupational-health doctor invited by the employer to explain the mode of transmission of the disease.", "It was that event which prompted the employer to attempt to persuade him to leave the company and the employees to openly threaten to disrupt the operation of the company as long as the applicant continued to work there. 72. It is clear that the applicant’s dismissal resulted in the stigmatisation of a person who, even if they were HIV-positive, had not shown any symptoms of the disease. That measure was bound to have serious repercussions for his personality rights, the respect owed to him and, ultimately, his private life. To that must be added the uncertainty surrounding his search for a new job, since the prospect of finding one could reasonably have appeared remote having regard to his previous experience.", "The fact that the applicant did find a new job after being dismissed does not suffice to erase the detrimental effect of his dismissal on his ability to lead a normal personal life. 73. Lastly, the Court reiterates that in Kiyutin, cited above (§ 57), it held that a person’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or in the same way as a disability – by the term “other status” in the text of Article 14 of the Convention. 74. It follows that Article 14 of the Convention taken in conjunction with Article 8 is applicable to the facts of the present case.", "2. Compliance with Article 14 taken in conjunction with Article 8 (a) Whether the applicant was in an analogous situation to that of other employees of the company 75. According to the Court’s established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑IV, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).", "76. As an employee of the company, the applicant could legitimately hope to continue working there as long as he did not commit an act capable of justifying his dismissal under domestic employment law. However, he was dismissed shortly after it was revealed that he had tested positive for HIV. 77. The Court considers that the applicant’s situation should be compared to that of the other employees in the company because this is relevant to an assessment of his complaint based on a difference in treatment.", "It is clear that the applicant was treated less favourably than any of his colleagues and that this was solely because he was HIV-positive. The Court notes that the employer’s concern was admittedly to restore peace in the company, but that that concern was rooted in the situation created by the attitude of the applicant’s colleagues towards his HIV status. (b) Whether the difference in treatment in question was objectively and reasonably justified 78. Once an applicant has shown that there has been a difference in treatment, it is incumbent on the respondent State to prove that the difference in treatment was justified. Such justification must be objective and reasonable or, in other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background (see Kiyutin, cited above, § 62). 79. In Kiyutin, the Court stated that if a restriction on fundamental rights applied to a particularly vulnerable group in society that had suffered considerable discrimination in the past, the State’s margin of appreciation was substantially narrower and it must have very weighty reasons for imposing the restrictions in question (ibid., § 63). 80.", "HIV-positive persons have to face up to a whole host of problems, not only medical, but also professional, social, personal and psychological, and above all sometimes to deeply rooted prejudices even among the most highly educated people. 81. The Court acknowledged this state of affairs in Kiyutin, cited above. It found that ignorance about how the disease spreads had bred prejudices which, in turn, had stigmatised or marginalised those infected with the virus. It added that, consequently, people living with HIV were a vulnerable group and that the State should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status (ibid., § 64).", "82. Additionally, the Court observes that a comparative study of the legislation of thirty member States of the Council of Europe on the protection from discrimination in the employment context afforded to HIV-infected persons showed that seven States had enacted specific legislation to that end. However, in the twenty-three other States, which had not passed legislation to that end, HIV-positive persons who suffered differences in treatment in the workplace could rely on the general anti-discrimination provisions of domestic law. The decisions of the domestic courts and other human rights protection bodies in some of those States showed that they granted protection against dismissal to persons living with HIV by subsuming this into other prohibited grounds of discrimination, such as health or disability (see paragraph 39 above). 83.", "It would therefore appear that even if not all the member States of the Council of Europe have enacted specific legislation in favour of persons living with HIV, there is a clear general tendency towards protecting such persons from any discrimination in the workplace by means of more general statutory provisions applied by the courts when examining cases of dismissal of HIV-positive employees in both the public and private sectors (see paragraphs 40-47 above). 84. Moreover, the Court notes that the provisions governing non-discrimination contained in various international instruments grant protection to HIV-infected persons. In that context the United Nations Committee of Economic, Social and Cultural Rights has recognised HIV-positive status as a prohibited ground of discrimination. Furthermore, a growing number of specific international instruments contain provisions concerning HIV-positive persons, including in particular a prohibition on discrimination in employment, such as ILO Recommendation no.", "200 concerning HIV and AIDS and the World of Work (see paragraph 32 above). 85. On the facts of the case the Court observes that the applicant’s employer terminated his contract owing to the pressure exerted on her by her employees, who had learnt that the applicant was HIV-positive and feared for their own health. It also notes that the employees of the company had been informed by the occupational-health doctor that their working relations with the applicant did not expose them to any risk of infection. 86.", "The lower courts weighed the need to protect the smooth operation of the company against the applicant’s justified expectation that he would be protected during the difficult period he was experiencing. They found that the scales tipped in favour of the applicant. In particular, the Court of Appeal found that the threat of disruption to the company in the present case, as a result of the overwhelming reaction of the employees, was based on a scientifically unfounded response. It observed that where an employee’s illness did not adversely affect working relations or the smooth operation of the company (through absenteeism or a reduction in working capacity, for example), it could not serve as an objective justification for terminating the contract. Moreover, the nature of the applicant’s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV-positive, his or her working capacity was not substantially reduced.", "87. In the present case the Court of Appeal expressly recognised that the applicant’s HIV status did not affect his capacity to do his job and there was no indication that he would be unable to perform his contract properly, which would have justified its immediate termination (see paragraph 19 above). The Court of Appeal also recognised that the company’s very existence was not threatened by the pressure exerted by the employees (see paragraph 20 above). Supposed or expressed prejudice on the part of employees could not be relied on as a pretext for terminating the contract of an HIV-positive employee. In such cases the need to protect the employer’s interests had to be balanced very carefully against the need to protect the interests of the employee, who was the weaker party to the contract, particularly where the latter was HIV-positive.", "88. However, the Court of Cassation did not weigh up all the competing interests as carefully and thoroughly as the Court of Appeal. On rather cursory grounds, having regard to the importance and unusual nature of the questions raised by the case, it held that the dismissal was entirely justified on the ground of the employer’s interests, in the proper sense of the term, because the measure had been imposed in order to restore peace in the company and ensure that it continued to operate smoothly. Although the Court of Cassation did not contest the fact that the applicant’s infection did not adversely affect his ability to perform his employment contract, it nonetheless based its decision, justifying the employees’ fears, on a manifestly inaccurate premise, namely, that the applicant’s illness was “contagious”. In doing so, the Court of Cassation ascribed to the smooth operation of the company the same meaning that the employees wished to give it, thus aligning that definition with the employees’ subjective perception.", "89. The Court does not share the Government’s view that a ruling by the Court of Cassation in the applicant’s favour would not have solved the problem because the employer would then have had to bear the cost of extended disruption to the company while the applicant would still have been faced with a hostile environment. The stakes involved for the applicant before the Court of Cassation were limited to obtaining compensation – which the Court of Appeal had awarded him – as his initial claim (for reinstatement in the company) had been dismissed both by the Court of First Instance and the Court of Appeal. Moreover, there could be no speculation about what the attitude of the company employees would have been if the Court of Cassation had upheld the decision of the lower courts, still less if legislation or well-established case-law existed in Greece protecting HIV-positive persons in the workplace. 90.", "In sum, the Court considers that the Court of Cassation did not adequately explain how the employer’s interests prevailed over those of the applicant and that it failed to weigh up the rights of the two parties in a manner required by the Convention. 91. It follows that the applicant was discriminated against on the basis of his health, in breach of Article 14 of the Convention taken in conjunction with Article 8. There has therefore been a violation of those provisions. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 93. The applicant claimed 6,339.18 euros (EUR) in respect of pecuniary damage, which was the amount awarded him by the Court of Appeal. He also claimed statutory interest accrued from the date of the Court of Appeal’s judgment.", "He claimed a further EUR 20,000 in respect of non-pecuniary damage caused by the stigmatisation and discriminatory dismissal to which he had been subjected. 94. The Government asked the Court to dismiss the claims in respect of pecuniary damage on the ground that they concerned an economic aspect of employment and not the right to respect for private life guaranteed by Article 8. With regard to non-pecuniary damage, the applicant’s allegation that he had been stigmatised and discriminated against was unfounded since, shortly after being dismissed, he had found another job. If the Court were to conclude that there had been a violation of the Convention, that finding would be sufficient just satisfaction.", "95. The Court reiterates that it has found a violation of Article 14 of the Convention taken in conjunction with Article 8 on account of the fact that the Court of Cassation failed to weigh up the rights of the two parties in a manner required by the Convention. It observes that the Court of Appeal had determined the amount to be awarded to the applicant in unpaid salaries at EUR 6,339.18, and awards him that sum in respect of pecuniary damage. It also considers that he should be awarded EUR 8,000 in respect of non-pecuniary damage. B.", "Costs and expenses 96. The applicant claimed EUR 6,000 in fees for the two lawyers who had represented him before the Court (sixty hours’ work at EUR 100 per hour). 97. The Government asked the Court to dismiss the claim because it had not been submitted together with the necessary supporting documents. 98.", "According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI). The Court observes that the applicant did not submit the necessary documents in support of his claim for costs and expenses. Accordingly, the claim is rejected. C. Default interest 99.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 6,339.18 (six thousand three hundred and thirty-nine euros and eighteen cents), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in French, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "THIRD SECTION CASE OF TIMERGALIYEV v. RUSSIA (Application no. 40631/02) JUDGMENT STRASBOURG 14 October 2008 FINAL 14/01/2009 This judgment may be subject to editorial revision. In the case of Timergaliyev v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Corneliu Bîrsan,Anatoly Kovler,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 23 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40631/02) 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 Firdavis Favizovich Timergaliyev (“the applicant”), on 5 September 2002.", "2. The applicant, who has been granted legal aid, was represented before the Court by Ms K. Moskalenko and Ms O. Preobrazhenskaya, lawyers at the International Protection Centre in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that he had been ill-treated by the police and that the criminal proceedings against him had been unfair.", "4. On 17 December 2004 the Court decided to communicate the complaints concerning the alleged ill-treatment and unfair trial to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The Government objected to the joint examination of the admissibility and merits of the application.", "Having examined the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1968. He is currently serving a prison sentence in the Sverdlovskiy Region.", "A. The applicant's arrest and alleged ill-treatment 7. Late on the night of 11 May 2001 the applicant was arrested by the police at the scene of a crime on suspicion of having set fire to his mother's flat. His mother died in the fire and another person, M., received serious injuries. The applicant was taken to the police department of the village of Dinas in the Sverdlovskiy Region.", "8. According to the applicant, while he was at the police department one of the policemen kicked him twice in the chest. 9. On 12 May 2001 the applicant was examined by a doctor, who noted a bruise on his head. The applicant stated that he had also complained of pain in the chest but that his chest had not been examined.", "10. After the examination the applicant was transferred to the police department of the town of Pervouralsk. According to the applicant, while he was at the police department he was kicked in the legs, kidneys, chest and ribs by two policemen. 11. On the same day the applicant was questioned by the investigator.", "He denied involvement in the arson attack and stated that he had been attacked by three strangers who had assaulted him and set fire to the flat. He was subsequently put in a cell in the temporary detention unit of Pervouralsk. 12. On 15 May 2001 Mr L. was appointed as legal aid counsel for the applicant. The applicant asked the investigator and Mr L. to arrange a medical examination.", "The investigator refused his request. 13. On 16 May 2001 the applicant was escorted to detention facility no. 1 in Yekaterinburg. However, he was not admitted to the detention facility because he did not have a medical certificate.", "He was brought back to Pervouralsk. 14. On 18 May 2001 he was again escorted to detention facility no. 1 in Yekaterinburg, where – for the second time – he was refused admittance without a medical certificate. On his return to Pervouralsk, he was examined by a doctor, who noted a bruise on his chest.", "On the same day a chest X-ray was performed. On 18 November 2004 all the X-ray photographs revealing no injuries, including the X-ray photograph of the applicant's chest, were destroyed by the medical staff of Hospital No. 1. A certificate issued by the chief physician of Pervouralsk Hospital No. 1 on 16 February 2005 confirmed that the X-ray had revealed no injury to the applicant's chest.", "15. On 21 May 2001 the applicant was admitted to detention facility no. 1 in Yekaterinburg, where he was examined by a doctor. The doctor noted two bruises on the applicant's forehead and a bruise on his chest. When asked by the doctor about the origin of the bruises, the applicant replied that they had been received outside detention facility no.", "1. He signed a statement that he had no complaints and that there was no need for an investigation. B. Investigation of the alleged ill-treatment 16. On 27 June 2001 the applicant complained to the prosecutor, alleging ill-treatment.", "17. On 2 July 2001 the Pervouralsk town prosecutor refused to open criminal proceedings. Having reviewed the reports on the applicant's arrest and questioning, he found that the applicant's head had already been injured when the police arrived at the crime scene. The applicant had himself stated to the investigator that he had been assaulted by strangers before the arrest, which provided sufficient explanation for his injuries. There was no evidence that he had been ill-treated by the police.", "18. Following communication of the application, an internal inquiry was conducted in January 2005. On 26 January 2005 the head of the Criminal Investigations Unit of the Sverdlovskiy Regional Department of Internal Affairs found that the applicant had himself affirmed that he had been beaten by strangers prior to the arrest. The strangers had been identified and questioned. They were the applicant's neighbours, who had come running to put out the fire in his flat.", "They had tried to rescue the applicant's mother from the burning flat, but the applicant had attempted to stop them and subsequently attacked them with an axe. They had had to use force to disarm him. A fight had followed, in the course of which the applicant had been injured. Those facts had been taken into account by the prosecutor, who had refused to open criminal proceedings, finding that the allegations of ill-treatment by the police had been unsubstantiated. C. The applicant's trial 19.", "On an unspecified date the case was referred for trial to the Sverdlovskiy Regional Court, where Mr R. was appointed as legal aid counsel for the applicant. 20. The applicant stated that on 21 November 2001 he had asked the court to provide him with a hearing aid and arrange a meeting with counsel. No response had been received. The Government claimed that no such requests had been made.", "21. On 5 December 2001 the Sverdlovskiy Regional Court, in one hearing, found the applicant guilty of aggravated murder, causing bodily harm and intentional destruction of another's property and sentenced him – taking account of his previous criminal record – to eighteen years' imprisonment in a high-security colony. 22. On 19 December 2001 the applicant lodged an appeal, challenging statements by witnesses and the accuracy of their transcription in the trial record. He advanced the defence of irresistible impulse and asked the court to adopt a different legal characterisation of the imputed offence.", "He also asked to be given an opportunity to be present at the appeal hearing. On 14 January 2002 he lodged annex no. 1 to his grounds of appeal, concerning the interpretation of the facts. 23. On 26 February 2002 the Supreme Court of the Russian Federation held, in an interim decision, that the applicant should be present at the hearing.", "24. On 5 April 2002 the applicant asked the Supreme Court to appoint legal aid counsel for him. 25. On 22 April 2002 the applicant submitted annex no. 2 to his grounds of appeal, in which he complained of procedural shortcomings of the trial, including ineffective representation by counsel L. and R., who had never backed his requests and applications.", "He further complained that the trial court had refused to provide him with a hearing aid and that counsel R. had failed to support his request to that effect. He also submitted that he had been ill-treated on the day of the arrest and alleged that the investigator had withdrawn the medical certificate of 21 May 2001 and his X-ray photograph from the case file. Finally, he asked the Supreme Court to inform lawyers from Moscow bar association no. 10, the International Protection Centre and the Human Rights Centre Memorial of the date of the appeal hearing. 26.", "On 29 April 2002 the applicant lodged annex no. 3 to his grounds of appeal, in which he asked, in particular, for legal representation before the appeal court, indicating that he had no legal training and was “half deaf”. 27. On 13 May 2002 the Supreme Court sent telegrams to Pervouralsk bar association no. 1, Moscow Bar Association no.", "10, the International Protection Centre and the Human Rights Centre Memorial, informing them that the appeal hearing in the applicant's case would be held on 27 May 2002 at 10 a.m. The telegrams indicated that attendance was not mandatory. 28. On 27 May 2002 the Supreme Court of the Russian Federation held the appeal hearing and upheld the judgment of 5 December 2001. The applicant was present but not represented.", "The appeal judgment was silent on the issue of providing the applicant with a hearing aid. As regards the applicant's right to a defence, the judgment read as follows: “It can be seen from the case materials that [the applicant] was represented by Counsel Mr L. during the pre-trial investigation and Counsel Mr R. during the trial. He did not refuse the services of these counsel. There are no reasons to believe that they defended his interests improperly, nor do the grounds of appeal indicate any such reasons.” 29. On 29 May 2002 the applicant complained to the Presidium of the Supreme Court of the Russian Federation about, in particular, the appeal court's refusal to provide him with legal representation.", "On 9 August 2002 Judge Galiullin responded that there were no grounds on which to institute supervisory review proceedings in respect of the judgments in his case. 30. A certificate of 6 June 2003 issued by a doctor of the medical unit of facility no. I-299 indicates that the applicant suffers from chronic bilateral sensorineural hearing impairment. II.", "RELEVANT DOMESTIC LAW 31. The RSFSR Code of Criminal Procedure (in force until 1 July 2002) establishes that the investigator or the court shall provide the suspect or the accused with legal aid counsel at his request. In cases where counsel chosen by the accused is not available for a long period of time, the investigator or the court may suggest that the accused choose another counsel or, alternatively, appoint another counsel for the accused (Article 48). 32. Counsel must imperatively be appointed by the investigator or the court if, in particular, the accused is mute, deaf or blind or if he cannot defend himself on account of a physical or mental impairment (Article 49).", "33. The Supreme Court notifies participants in criminal proceedings of the dates of appeal hearings at their request. The non-appearance by participants who have been notified of the date of the appeal hearing does not preclude the examination of the case (Article 336). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 34.", "The Government maintained that Ms Moskalenko and Ms Preobrazhenskaya were not duly authorised to submit observations on the applicant's behalf. They claimed that the applicant's signature on the power of attorney had been forged by Ms Moskalenko and Ms Preobrazhenskaya. They produced copies of documents from the criminal case file. In their opinion, the applicant's signatures on those documents were visibly different from the signature on the power of attorney. Moreover, the power of attorney was not valid because it had not been certified by the director of the detention facility where the applicant was held, as required by Article 53 of the Code of Civil Procedure.", "Such certification was the only means of confirming the authenticity of the applicant's signature. 35. The applicant confirmed the authenticity of his signature on the power of attorney and maintained that he had authorised Ms Moskalenko and Ms Preobrazhenskaya to represent his interests before the Court. He claimed that the signatures on the documents produced by the Government had been forged. 36.", "As regards the Government's suspicion that the power of attorney had been forged by the applicant's representatives, the Court presumes that both parties to the proceedings – the applicant and the Government alike – act in good faith; a claim seeking to rebut this presumption should be supported by sufficient evidence (see Khudobin v. Russia, no. 59696/00, § 74, ECHR 2006‑... (extracts)). The applicant confirmed the authenticity of his signature on the power of attorney, which, in the Court's opinion, is sufficient to dispel the suspicion of forgery. In any event, the Government did not produce convincing evidence that the application or any submissions on the applicant's behalf had been lodged fraudulently or without the applicant's knowledge. Therefore, the Court is not persuaded that the divergence between the applicant's signatures is sufficient, by itself, to cast doubt on the authenticity of his signature on the power of attorney.", "The Court is therefore satisfied of the applicant's intention to be represented by Ms Moskalenko and Ms Preobrazhenskaya. 37. In so far as the Government claimed that the applicant's form of authority should have been certified by the head of the detention facility where he was held, the Court reiterates that it has on many occasions rejected a similar argument by the Government, emphasising that “pursuant to Rule 45 of the Rules of Court, a written authority is valid for the purposes of proceedings before the Court. Neither the Convention nor the Rules of the Court require any form of certification of that document” (see Khudobin v. Russia, no. 59696/00, § 73, ECHR 2006‑... (extracts); Nosov v. Russia (dec.), no.", "30877/02, 20 October 2005; Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; and Isayeva and Others v. Russia (dec.), nos. 57947/00, 57948/00 and 57949/00, 19 December 2002). 38. The Court is satisfied that Ms Moskalenko and Ms Preobrazhenskaya were duly authorised to represent the applicant.", "The Government's objection on this point must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39. The applicant complained, under Articles 2 and 3 of the Convention, that he had been ill-treated by the police. Since the applicant's life does not appear to be, or to have been, imperilled, the Court considers that Article 2 is inapplicable in the present case.", "It will examine the complaint from the standpoint of Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 40. The Government submitted that the applicant had never been beaten by the police. He had received injuries in the fight with his neighbours prior to the arrest. 41. The applicant submitted that he had been beaten by the police after the arrest.", "The medical certificate of 12 May 2001 had only noted the injury to the head, while the medical certificate of 18 May 2001 had also described a bruise on his chest. In the applicant's opinion, this proved that the bruise on the chest had been received after the arrest. 42. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt”, but has added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no.", "26772/95, § 121, ECHR 2000-IV). Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 43. Turning to the particular circumstances of the case, the Court observes that prior to his arrest the applicant had been involved in a fight with his neighbours.", "The neighbours testified that the applicant had been injured in the fight. The medical certificates described a head injury and a bruise to the applicant's chest. The applicant conceded that the head injury had been received prior to the arrest. Referring to the fact that the bruise on his chest had not been recorded in his medical record until several days after the arrest, he affirmed that that bruise had been caused by his ill-treatment at the police station. The Court is not persuaded by this argument.", "It transpires from the applicant's submissions that he complained of pain in the chest within a few hours of his arrest (see paragraph 9 above). It is therefore probable that the bruise was also received during the fight prior to the arrest. The Court cannot establish beyond reasonable doubt that it was received after the arrest. 44. Finally, the Court observes that the authorities investigated the applicant's allegations of ill-treatment, regrettably only after communication of the application, and provided an explanation for his injuries (see paragraphs 17 and 18 above).", "There is no reason to believe that that investigation did not meet the requirements of Article 3, given that the applicant never complained before the domestic authorities or the Court that it had been ineffective or otherwise inadequate. 45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 3 (c) 46.", "The applicant complained, under Article 6 of the Convention, that he had not been provided with a hearing aid, that State-appointed counsel L. and R. had been ineffective and that he had had no legal assistance at the appeal hearing. The relevant parts of Article 6 read as follows: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...” A. Admissibility 47. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions 48.", "The applicant submitted that, owing to his hearing impairment, his ability to hear and follow the proceedings had been significantly reduced. During the trial and in his grounds of appeal he had asked the domestic courts to provide him with a hearing aid, to no avail. He further submitted that State-appointed counsel L. and R. had remained passive during the investigation and trial. They had not backed his applications to the court and had not supported his requests for a hearing aid. He had not been provided with legal assistance for an appeal hearing.", "In his grounds of appeal he had asked the court to adopt a different legal characterisation of the imputed offence. It was a legally complex argument and he had had difficulty in expanding on it, being hard of hearing and unassisted. 49. The Government claimed that the applicant had never asked the trial court to provide him with a hearing aid. Nor had he refused the assistance of counsel L. and R. Counsel R. had been active during the trial, had put questions to the witnesses and had participated in the oral pleadings.", "The applicant had not explained why that assistance had been ineffective. The appeal court had informed the lawyers named by the applicant of the date and time of the appeal hearing. The appeal court had not been responsible for their failure to appear. In accordance with Article 336 of the Code of Criminal Procedure, the non-appearance of participants who had been notified of the date of the appeal hearing did not preclude the examination of the case (see paragraph 33 above). 2.", "The Court's assessment 50. The Court states at the outset that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the attendance of the defendant in person does not necessarily take on the same significance for the appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both fact and law, Article 6 does not always entail a right to be present in person. Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence's interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Helmers v. Sweden, judgment of 29 October 1991, Series A no.", "212-A, p. 15, §§ 31-32; Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 570, § 37; Pobornikoff v. Austria, no. 28501/95, § 24, 3 October 2000; and Kucera v. Austria, no. 40072/98, § 25, 3 October 2002). 51. The right of an accused under Article 6 to effective participation in his or her criminal trial generally includes not only the right to be present, but also to hear and follow the proceedings.", "Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained, in particular, in sub-paragraph (c) of paragraph 3 of Article 6 – “to defend himself in person” (see, among others, Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, pp. 33-34, § 78; Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, pp. 10-11, § 26; and S.C. v. the United Kingdom, no.", "60958/00, § 28, ECHR 2004-IV). “Effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. The defendant should be able, inter alia, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (see, for example, Stanford, cited above, p. 11, § 30; V. v. the United Kingdom [GC], no. 24888/94, §§ 85, 89, 90, ECHR 1999-IX; and S.C. v. the United Kingdom, cited above, § 29). The circumstances of a case may require the Contracting States to take positive measures in order to enable the applicant to participate effectively in the proceedings (see Liebreich v. Germany (dec.), no.", "30443/03, 8 January 2008). 52. As regards, more particularly, situations where the accused's hearing is impaired, the Commission found that that could not as such be allowed to block the prosecution or lead to the conclusion that an accused with such a handicap could not have a fair trial (see Roos v. Sweden, no. 19598/92, Commission decision of 6 April 1994). In the Roos case the Commission noted that the applicant had had a hearing aid and had been represented, and concluded that he had been able to hear and follow the proceedings.", "53. In the case of Stanford v. the United Kingdom the Court found no violation arising from the fact that the accused could not hear some of the evidence given at trial due to poor acoustics in the courtroom, in view of the fact that his counsel, who could hear everything that was said and was able to take his client's instructions at all times, chose for tactical reasons not to bring the accused's hearing difficulties to the attention of the trial judge at any stage throughout the six-day hearing (see Stanford, cited above, §§ 24-32). 54. In a recent decision, in the case of Liebreich v. Germany (cited above), the Court declared inadmissible the applicant's complaint that he had been unable to participate effectively in the appeal hearing because he was under the effect of antidepressant medication. The Court took into account that the applicant had been represented by a lawyer whom he could freely consult during the proceedings and that prior to the hearing the German court had obtained information from the doctor treating the applicant on the issue of whether he was fit to plead.", "The Court also reviewed the record of the hearing and concluded that the applicant had participated effectively in the proceedings. 55. The opposite conclusion was reached in the case of Cuscani v. the United Kingdom, where the applicant could not follow the proceedings on account of his poor command of English. The Court criticised the English courts for their implicit reliance on counsel's statement that the applicant's command of English was adequate to understand the proceedings. It held that the onus was on the trial judge to reassure himself that the absence of an interpreter would not prejudice the applicant's full involvement in the proceedings and found a violation in view of the judge's failure to make his own assessment of the applicant's need for interpretation facilities (see Cuscani v. the United Kingdom, no.", "32771/96, §§ 38-40, 24 September 2002). 56. Turning to the circumstances of the present case, the Court observes that the applicant is hard of hearing. He submitted a medical certificate indicating that he suffers from chronic bilateral hearing impairment (see paragraph 30 above). The Court is therefore persuaded that the applicant's ability to hear and follow the proceedings was reduced.", "The Government do not contest this fact. 57. It is disputed between the parties whether the applicant brought his hearing difficulties to the attention of the trial judge. The Court deplores the fact that neither party has substantiated its allegations by producing a copy of the petition for a hearing aid or a copy of the trial record. Accordingly, the Court finds itself unable to verify whether the applicant took steps to make his hearing difficulties known.", "The failure to submit a copy of the trial record also prevents the Court from assessing whether the applicant alerted the trial court to the alleged ineffectiveness of his counsel. 58. The Court further notes that the applicant submitted a copy of his grounds of appeal in which he complained that his hearing was impaired and asked for a hearing aid. The Court is therefore satisfied that the appeal court was put on clear notice that the applicant had hearing problems. It is also to be noted that the applicant was convicted at the first level of jurisdiction of aggravated murder and sentenced to eighteen years' imprisonment.", "The applicant's submissions before the appeal court covered both points of fact and points of law. The applicant contested his conviction, sought recharacterisation of the criminal offence relying on the defence of irresistible impulse and pleaded for a reduction in sentence. His personal and full involvement in the appeal proceedings was therefore a matter of crucial importance for him. In such circumstances the appeal court was bound out of fairness to take additional steps, before examining the case, to reassure itself that the applicant's hearing impairment would not prejudice his effective participation in the appeal hearing (compare Cuscani, cited above, § 38, and Vaudelle v. France, no. 35683/97, § 59, ECHR 2001‑I).", "However, the appeal court did not consider taking any steps to ensure that the applicant could follow the proceedings before it. It proceeded with the hearing without requesting a medical opinion as to whether the applicant's impairment allowed him to hear the proceedings or considering the possibility of making arrangements for the provision of a hearing aid. 59. The Court also attaches weight to the fact that the applicant was unrepresented before the appeal court. The present case is therefore different from the cases of Roos, Stanford and Liebreich (cited above in paragraphs 52 to 54) where the fact that the applicants were assisted by counsel whom they could freely consult during the proceedings led the Court to find no violation of Article 6 §§ 1 and 3 (c).", "It is true that the appeal court could not be held responsible for the omission of the applicant's lawyers, who had been properly notified of the date and time of the appeal hearing. However, the ultimate guardian of the fairness of the proceedings was the judge, who, when confronted with the lawyers' failure to appear, was required under domestic law to appoint counsel for an accused who was incapable of defending himself on account of a physical impairment (see paragraph 32 above). The Court reiterates that under Article 6 § 3 (c) of the Convention the accused is entitled to have a lawyer assigned by the court of its own motion “when the interests of justice so require” (see Vaudelle, cited above, § 59, and Padalov v. Bulgaria, no. 54784/00, §§ 54 and 55, 10 August 2006). Given that the applicant's hearing impairment undermined his ability to participate effectively in the proceedings, the interests of justice demanded that in order to receive a fair hearing the applicant should have had the benefit of legal representation during the proceedings before the appeal court.", "60. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c). IV. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 61. Lastly, the applicant complained under Article 6 of the Convention that the trial court had committed various breaches of the criminal procedure which had resulted in his unjust conviction.", "62. It is not the Court's function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Čekić and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 64. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the failure to provide the applicant with a hearing aid, ineffectiveness of the counsel during the trial and the failure to appoint counsel for the appeal hearing admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) of the Convention on account of the failure to provide the applicant with a hearing aid and the failure to appoint counsel for the appeal hearing. Done in English, and notified in writing on 14 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "THIRD SECTION CASE OF PLOTNIKOV v. RUSSIA (Application no. 22727/08) JUDGMENT STRASBOURG 11 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Plotnikov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 20 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22727/08) 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 Aleksey Nikolayevich Plotnikov (“the applicant”), on 5 April 2008.", "2. The applicant was represented by Mr Y. Kruchinin, a lawyer practising in Cheboksary. 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 3 November 2011 the complaint concerning the length of the applicant’s pre-trial detention was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lived, prior to arrest and conviction, in Cheboksary. 5. On 27 January 2004 the applicant was arrested. He remained in custody pending investigation and trial.", "6. On 7 October 2005 the Leninskiy District Court of Cheboksary convicted the applicant of fraud and sentenced him to six years and nine months’ imprisonment. 7. On 13 December 2005 the Supreme Court of the Chuvash Republic upheld his conviction on appeal. The court reduced the applicant’s sentence to five years and ten months.", "8. On 22 June 2007 the Presidium of the Supreme Court of the Chuvash Republic quashed the judgments of 7 October and 13 December 2005 and remitted the case for a fresh examination. The applicant was remanded in custody. 9. On 11 July 2007 the Leninskiy District Court ordered the applicant to stay in prison pending trial.", "10. On 22 November 2007 the Leninskiy District Court extended the applicant’s pre-trial detention, having noted that: “... Taking into account the seriousness of the charges against [the applicant], his health condition, personal profile, a possibility that he might abscond, the court considers that the previous measure of restraint should remain unchanged ...” 11. On 5 February 2008 the Supreme Court of the Chuvash Republic upheld this decision on appeal. 12.", "By decision of 24 December 2007, as upheld on appeal, the Leninskiy District Court extended the applicant’s pre-trial detention for three months. Having heard the parties, the court ruled that: “... As it can be seen from the case file, [the applicant] has been accused of a serious crime, which is punishable with an imprisonment exceeding two years. The grounds, which were used to put him in custody ..., have not ceased to apply. Being at large, [the applicant] may abscond and continue his criminal activity...” 13. On 27 March 2008 the Leninskiy District Court convicted the applicant of fraud and sentenced him to five years and ten months’ imprisonment.", "14. On 1 July 2008 the Supreme Court of the Chuvash Republic upheld his conviction appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 15. The applicant complained that the duration of his pre-trial detention had been excessive and therefore 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 ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 16. The Government contested that argument, stating that the courts had given relevant and sufficient reasons for the applicant’s pre-trial detention. A. Admissibility 17. The Court observes that in the present case the applicant’s pre-trial detention comprised two distinct periods: (1) from 27 January 2004, when the applicant was arrested, to 7 October 2005, when he was convicted, and (2) from 22 June 2007, when the Presidium of the of the Supreme Court quashed the judgments in his case, to his conviction on 27 March 2008. In between those two periods the applicant’s first conviction became final, when upheld by the appellate court, and the applicant, for about two years, served a prison sentence.", "18. The Court finds that the fact that the applicant’s first conviction became final once upheld on appeal and he started serving a prison sentence had the effect of triggering the application of the six-month rule (see Nasakin v. Russia, no. 22735/05, §§ 81 – 85, 18 July 2013). 19. Accordingly, the applicant’s complaint with regard to the detention period from 27 January 2004 to 7 October 2005 should be declared inadmissible as being lodged out of time.", "However, the fact that an applicant has already spent time in custody pending the same set of criminal proceedings, should, in a given case, be taken into account by the Court in its assessment of the sufficiency and relevance of the grounds justifying the subsequent period of pre-trial detention, which the Court is competent to examine (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). 20. In the circumstances of the present case, the Court considers that the applicant’s complaint under Article 5 § 3 of the Convention in respect of his detention from 22 June 2007 to 27 March 2008 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. As it is not inadmissible on any other grounds, the Court declares it admissible.", "B. Merits 21. 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 gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other examples, 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). 22. Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different finding. The applicant spent in pre‑trial detention nine months and five days on the ground of detention orders with stereotyped reasoning or no reasoning at all.", "These reasons, although “relevant”, cannot be regarded as “sufficient”. In these circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence”. 23. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 24. The applicant complained about conditions of detention and transport, unfairness and the outcome of criminal proceedings against him. He referred to Articles 3 and 6 of the Convention. 25. 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27.", "The applicant claimed 100,000 euros (EUR) as just satisfaction. 28. The Government considered the applicant’s claims excessive and incompatible with the Court’s case-law. 29. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this sum.", "B. Costs and expenses 30. The applicant did not claim any costs or expenses. C. Default interest 31. 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 duration of pre-trial detention from 22 June 2007 to 27 March 2008 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF AYCAGUER v. FRANCE (Application no. 8806/12) JUDGMENT (extracts) STRASBOURG 22 June 2017 FINAL 22/09/2017 This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aycaguer v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Erik Møse,Nona Tsotsoria,André Potocki,Síofra O’Leary,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8806/12) 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, Mr Jean-Michel Aycaguer (“the applicant”), on 20 January 2012. 2. The applicant was represented by Ms A.-M. Mendiboure, a lawyer practising in Bayonne. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs with the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that his conviction for having refused to undergo DNA profiling had amounted to an unjustified infringement of his right to respect for his private life within the meaning of Article 8 of the Convention. 4. On 26 March 2014 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 Ossès. 6. On 17 January 2008 he attended a rally organised by a Basque agricultural trade union and by the GFAM (a mutual-benefit land alliance), the “Lurra”, on the occasion of a meeting of the Technical Committee of the Land Use and Rural Settlement Corporation (SAFER) in the Pyrénées-Atlantiques Département. That meeting had been aimed at producing an opinion on the use of the land comprising a farm which Mr F.L. had been operating for several years.", "The rally was held in a political and trade-union situation where tensions had been heightened by the fact that the majority agricultural union in the Département was backing candidates other than Mr F.L. At the end of the meeting scuffles broke out between the demonstrators and the gendarmerie. 7. The applicant was placed in police custody and brought before the Bayonne Criminal Court under “immediate summary trial” procedure, and charged with intentional violence not entailing total unfitness for work, against gendarmes whose identity has not been established, and against a person exercising public authority, using or threatening to use a weapon, in this instance an umbrella. 8.", "By judgment of 13 March 2008, the applicant was sentenced to two months’ imprisonment, suspended, for having struck gendarmes with an umbrella, which incident had not entailed unfitness for work on the latter’s part. In its judgment, the court noted that the applicant had refused to answer questions during the investigation or to admit to any wrongdoing, and had denied that he had been carrying an umbrella. The judges noted that witnesses had nevertheless stated that he had attempted to cross the barrier by clambering over demonstrators and trying to hit the gendarmes with his umbrella. The applicant pointed out that he had refrained from appealing in order to calm the situation and in the framework of a friendly settlement of the dispute that had been the cause of the rally. 9.", "On 24 December 2008, following a request from the Bayonne Public Prosecutor’s Office, the applicant was ordered by the police to give a DNA sample, on the basis of Articles 706-55 and 706-56 of the Code of Criminal Procedure (CPP). He was brought before the Criminal Court on 19 May 2009 for refusing to give the sample. 10. By judgment of 27 October 2009, the Bayonne Regional Court imposed on the applicant a fine of five hundred euros. 11.", "On 3 February 2011 the Pau Court of Appeal upheld that judgment. As regards the legal aspect of the offence, it stated, in particular, that unlike the applicants in the case of S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008), the applicant had been convicted, rather than suspected, of an offence, which precluded him from arguing that the impugned judgment had entailed a disproportionate interference with his private life. Relying, in particular, on the 16 September 2010 decision of the Constitutional Council (see paragraph 16 below), it held that “the provisions of national law applied [to the applicant] were such as to reconcile respect for private life and the protection of public order in a manner that was neither manifestly unbalanced nor in breach of the requirements of Article 8 of the Convention”. In connection with the substantive aspect of the offence, the Court of Appeal dismissed the applicant’s plea that a sample had already been taken from his headgear during his police custody and that he was entitled to refuse further sampling, given that there had been no DNA profiling the first time.", "12. The applicant lodged an appeal on points of law. His first plea was that the sample geared to identifying his DNA and storing the corresponding data amounted to a disproportionate interference with his private life, having regard to the duration of the data storage and his personal situation (an easily identifiable person who was socially well-established, with a job, a family and a fixed abode). In his second plea, he argued that the Court of Appeal had provided no reasons for its decision in connection with the substantive aspect of the offence. 13.", "By judgment of 28 September 2011, the Court of Cassation dismissed the applicant’s appeal on points of law as follows: “... the Court of Appeal responded adequately and cogently to the main points of the pleadings submitted to it, and characterised all the substantive and purposive aspects of the offence of refusing to undergo a biological test, of which it found the defendant guilty, in full compliance with the provisions of Article 8 of the Convention.” II. RELEVANT DOMESTIC LAW AND PRACTICE A. CPP 14. The relevant provisions of the CPP concerning the national computerised DNA database read as follows: Article 706-54 “The purpose of the national computerised DNA database, which is supervised by a member of the national legal service, is to centralise all DNA data obtained by the biological analysis and DNA profiling of persons found guilty of one of the offences listed in Article 706-55, with a view to facilitating efforts to locate and identify the perpetrators of those offences. ... DNA profiles of persons concerning whom there is serious or corroborative circumstantial evidence pointing to their likely involvement in the perpetration of any of the offences mentioned in Article 706-55 shall also be stored in the database further to a decision by a police officer acting ex officio or at the request of the State Prosecutor or the investigating judge, which decision must be included mentioned in the case file. Such profiles may be deleted at the request of the State Prosecutor where their retention has become unnecessary for the purposes of the database.", "Where the data subject requests such deletion, the State Prosecutor must inform him or her of the action taken on his or her request; if the public prosecutor does not order the deletion, the person concerned may apply to the liberties and detention judge to contest that decision. An appeal shall lie with the president of the investigation division against the latter judge’s decision. ....” Article 706-55 “The national DNA database shall centralise DNA samples concerning the following offences: ... 2. Crimes against humanity and crimes and offences of deliberate attempts on life, acts of torture and barbarity, deliberate violence, threats against persons, narcotics trafficking, infringement of persons’ freedom, human trafficking, procuring, exploitation of begging and endangerment of minors ... ...” Article 706-56 “I.- A police officer may conduct or order, under his own supervision, in respect of the persons mentioned in the first, second and third indents of Article 706-54, biological testing with a view to DNA profiling. ... ... II.- Any refusal to undergo the DNA sampling as provided for in the first indent of paragraph I above shall be punishable with one year’s imprisonment and a fine of 15,000 euros.", "...” Article R. 53-10 “... II.- Further to a decision by the State Prosecutor or the Principal State Prosecutor, DNA profiles based on biological testing of persons convicted with final effect of one of the offences listed in Article 706-55 shall be registered in the database.” Article R. 53-14 “Registered information may be retained for a maximum of forty years from: ... the date on which the conviction became final ... in the case of the profiles mentioned in paragraph II of Article R. 53-10. ...” 15. In reply to a parliamentary question, the Minister of Justice stated that a draft Decree proposed amending Article R. 53-14 CPP to vary the length of data storage according to the nature of the offence committed and whether or not the perpetrator was under age (Question no. 86834, Assemblée Nationale, Official Gazette of 19 April 2016, p. 3447). B.", "Constitutional Council Decision No. 2010-25 QPC 16. On 16 September 2010 the Constitutional Council, to which the Court of Cassation had submitted a priority request for a preliminary ruling on constitutionality on 17 June 2010, gave a decision declaring Articles 706-54 to 706-56 CPP, as worded prior to Law No. 2010-242 of 10 March 2010, in conformity with the Constitution, subject to paragraphs 18 and 19 of the decision, which read as follows: “18. Considering ... that the registration in the DNA database on persons convicted of specific offences and persons in respect of whom there is strong or corroborated evidence that they have committed one of those offences is necessary for identifying and apprehending the perpetrators of such crimes or offences; that the last indent of Article 706-54 states that the duration of storage of the information registered should be specified in a separate decree; that, accordingly, it is incumbent on the regulating authority to ensure that the duration of storage of such personal data, in view of the purpose of the database, is proportional to the nature and/or the seriousness of the offences in question ...”.", "... C. Relevant case-law of the Court of Cassation 17. In a judgment of 11 July 2012 (Cass. crim., no. 12-81.533) declining to refer to the Constitutional Council the priority request for a preliminary ruling on constitutionality formulated by the appellant, the Court of Cassation held that the provisions of Articles 706-54 to 706-56 CPP, as worded prior to Law No. 2010-242 of 10 March 2010, had been declared compatible with the Constitution by Constitutional Council decision of 16 September 2010.", "In its judgment delivered in the same case on 19 March 2013, the Court of Cassation dismissed the appeal on points of law as follows: “... given that DNA profiling amounts to an interference with the exercise of the right to respect for private life, it is a measure which is not manifestly disproportionate, which is necessary in a democratic society for the prevention of public disorder and criminal offences and which is applicable, without discrimination, to all persons convicted of the offences listed in Article 706-55 of the Code of Criminal Procedure ....” D. Relevant international materials 18. See S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 41-55, 4 December 2008. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 19.", "The applicant alleged that there had been a breach of his right to respect for his private life on account of the order to provide a biological sample for inclusion in the FNAEG and the fact that his refusal to comply with that order has resulted in a criminal conviction. He relied on 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.” 20.", "The Government contested that argument. ... B. Merits a) The applicant 22. The applicant first of all noted that, whereas the original purpose of the FNAEG had been to store DNA profiles of sex offenders, it now covered a wide range of offences, whatever their degree of seriousness and the extent of the public disorder which they entailed. The impugned information storage could not be considered legitimate in the case of all the offences listed in Article 706-55 CPP, ranging from crimes against humanity to acts committed in the framework of trade union violence.", "The generalised, undifferentiated nature of the data recording method rendered it contrary to the principles of Article 8 of the Convention, as it was neither justified by the aim pursued nor necessary, given the absence of discretionary powers and of any possibility of adjustment depending on the actual offence committed. 23. The applicant also submitted that the Government had failed to explain why the storage of his personal data was necessary for forty years or why he might be liable to reoffend. In view of the nature and degree of seriousness of the offence of which he had been convicted, it was disproportionate to store his DNA profile for forty years. 24.", "As regards the data storage period, the applicant also considered that although a timeline of forty years was in conformity with the French Constitution, the Constitutional Council had issued no reservations as to interpretation, and the Government were not planning to amend the time-limit by decree. Nevertheless, he noted that the Government had so far taken no action in that regard. He also observed that the duration of storage of fingerprints in some of the most serious cases (see Gardel v. France, no. 16428/05, § 67, ECHR 2009) was shorter than that stipulated for the FNAEG. 25.", "Furthermore, the applicant emphasised that the databank was supervised by a prosecutor, who is not a judicial authority for the purposes of the Convention (see Moulin v. France, no. 37104/06, § 57, 23 November 2010). This meant that a request for deletion of the data had to be submitted to a member of the legal service devoid of any guarantee on independence. Moreover, the FNAEG was used for policing purposes and could be consulted by a wide range of international law enforcement agencies, without any real safeguards for the data subjects. b) The Government 26.", "The Government, who did not deny the existence of an interference with the applicant’s right to respect for his private life, first of all noted that that interference had been legally based on Article 706-56 CPP, with the legal regulations governing the FNAEG being set forth in Articles 706-54 et seq and R. 53-9 et seq. CPP. 27. They pointed out that the purpose of the FNAEG was to facilitate the investigation and identification of offenders by means of DNA profiling. In 2001, the importance attached by the legislature to the development and the effectiveness of that database had led it to criminalise any refusal to undergo the requisite biological testing.", "The whole FNAEG system had been validated by the Constitutional Council (see paragraph 16 above). Furthermore, the FNAEG was, in the Government’s view, akin to the national sex offenders database (FIJAIS), which the Court had found compatible with the requirements of Article 8 of the Convention (see B.B. v. France, no. 5335/06, 17 December 2009; M.B. v. France, no.", "22115/06, 17 December 2009; and Gardel, cited above). The impugned interference thus pursued the legitimate aim of “the prevention of disorder or crime”. 28. The Government emphasised that unlike the regulations at issue in the case of S. and Marper (cited above, § 119), only the offences exhaustively listed in Article 706-55 CPP gave rise to registration in the FNAEG. Although the database had originally been intended to include DNA profiles solely in the framework of sex offences, its scope had been extended under several successive reforms.", "The offences covered were all serious to some extent, and all but one were subject to a prison sentence. Apart from cases of crimes and offences punishable with ten years’ imprisonment, the biological testing could be conducted without the person’s consent, and it was impossible use the DNA profiles stored in order to analyse genetic characteristics. 29. The Government further noted that the State Prosecutor was not empowered to assess the expediency of registering a person convicted of one of the offences in question in the FNAEG. Indeed, the use of the code set out in Article R. 53-21 CPP afforded no margin of appreciation to prosecutors.", "30. The Government took the view that the conditions for the use, consultation and storage of data in the FNAEG were underpinned by proper procedural safeguards. The database was operated by the Ministry of the Interior’s Central Directorate of Police, under the dual supervision of a senior-ranking prosecutor appointed by decree of the Minister of Justice, and of the National Commission on Data Processing and Civil Liberties. The relevant information could only be accessed, and data comparisons carried out, by staff of the police forensic and technical services and duly authorised gendarmerie staff. 31.", "The Government also denied that the lack of a data deletion procedure for convicted persons was abusive, since the maximum data storage period was forty years, DNA profile registration in the FNAEG did not impose any positive obligation on the person concerned and the data were only used in the event of recidivism. 32. Nevertheless, in view of the reservations entered by the Constitutional Council, including one concerning the proportionality of the time for which DNA profiles were kept, and in order to comply with those reservations, the Government stated that they would shortly be tabling before the Conseil d’État a draft decree amending accordingly the provisions of Article R. 53-14 CPP. 2. The Court’s assessment 33.", "The Court reiterates that the mere fact of storing data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II). As regards DNA profiles, they do contain substantial amounts of unique personal data (see S. and Marper, cited above, §75).", "34. Furthermore, the Court observes at the outset that it fully realises that in order to protect their population as required, the national authorities can legitimately set up databases as an effective means of helping to punish and prevent certain offences, including the most serious types of crime, such as the sex offences for which the FNAEG was originally created (cf., in particular, Gardel, B.B. and M.B., cited above, §§ 63, 62 and 54 respectively). However, such facilities cannot be implemented as part of an abusive drive to maximise the information stored in them and the length of time for which they are kept. Indeed, without respect for the requisite proportionality vis-à-vis the legitimate aims assigned to such mechanisms, their advantages would be outweighed by the serious breaches which they would cause to the rights and freedoms which States must guarantee under the Convention to persons under their jurisdiction (see M.K.", "v. France, no. 19522/09, § 35, 18 April 2013). 35. In the instant case, the Court notes that the applicant has not so far been included in the FNAEG because he refused to undergo DNA profiling as required by law. He was nonetheless convicted on that basis.", "It is not contested that that conviction amounted to an interference with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. 36. The Court also observes that the parties did not dispute that the interference in question had been in accordance with the law, that is to say Articles 706-54 to 706-56 and R. 53-9 et seq. CPP, and had pursued the legitimate aim of detecting, and therefore preventing, disorder and crime (ibid.). The Court further notes that the interference pursued a legitimate aim, namely detecting and therefore preventing crime.", "37. The Court must therefore examine whether the interference was necessary vis-à-vis the requirements of the Convention. Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded by this Court to those authorities as regards that assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions. Where a particularly important aspect of someone’s life or identity is in issue, the State’s margin of appreciation is generally narrower.", "38. Personal data protection plays a primordial role in the exercise of a person’s right to respect for his private life enshrined in Article 8 of the Convention. Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of that Article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should, in particular, ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.", "The domestic law should also comprise safeguards capable of effectively protecting the personal data recorded against inappropriate and wrongful use (see B.B., cited above, § 61), while providing a practical means of lodging a request for the deletion of the data stored (see B.B., cited above, § 68, and Brunet, cited above, §§ 41-43). 39. In the present case, the registration in the database, which the applicant avoided at the cost of a criminal conviction, does not in itself impose any obligation on the person concerned. Furthermore, it is subject to a sufficiently strict consultation procedure. 40.", "The Court also notes that Article 706-56 CPP stipulates that such registration cannot be effected on the basis of biological material that has become detached from the person’s body by natural means (see paragraph 14 above). 41. Moreover, it notes that under Article 706-54 CPP only the offences exhaustively listed in Article 706-55 CPP can give rise to registration in the FNAEG. 42. In that regard, however, it should be noted that pursuant to Article R. 53-14 of the Code of Criminal Procedure, the duration of storage of DNA could not exceed forty years in the case of persons convicted of offences which the Government considered to display “a specific degree of seriousness”.", "The Court notes that that forty-year period in principle constitutes a maximum which should have been adjusted under a separate decree. Since no such decree has ever been issued, the forty-year period is, in practice, treated as indefinite storage, or at least as a norm rather than a maximum (see M.K., cited above, § 45, and Brunet, cited above, § 43), particularly in the case of persons of mature age. 43. The Court further observes that on 16 September 2010 the Constitutional Council issued a decision to the effect that the provisions relating to the impugned computer file were in conformity with the Constitution, subject inter alia to “determining the duration of storage of such personal data depending on the purpose of the file stored and the nature and/or seriousness of the offences in question” (see paragraph 15 above). To date, no appropriate action has been taken on that reservation (see paragraphs 14 and 42 above).", "Thus, the Court notes that no differentiation is currently provided for according to the nature and/or seriousness of the offence committed, notwithstanding the significant disparity in the situations potentially arising under Article 706-55 CPP. The applicant’s situation bears witness to this, with events occurring in a political/trade-union context, concerning mere blows with an umbrella directed at gendarmes who have not even been identified (see paragraphs 7 and 8 above), contrasting with the seriousness of the acts liable to constitute the very serious offences set out in Article 706-55 CPP, such as sex offences, terrorism, crimes against humanity and trafficking in human beings, to mention but a few. To that extent the instant case is very different from those specifically relating to such serious offences as organised crime (see S. and Marper, cited above) or sexual assault (see Gardel, B.B. and M.B., cited above). 44.", "Furthermore, as regards the deletion procedure, it is not disputed that access to such a procedure is only authorised for suspects, and not for convicted persons such as the applicant. The Court considers that convicted persons should also be given a practical means of lodging a request for the deletion of registered data (B.B., cited above, § 68, and Brunet, cited above, §§ 41-43). That remedy should be made available, as it has previously pointed out, in order to ensure that the data storage period is proportionate to the nature of the offences and the aims of the restrictions (see paragraph 37 above; cf., mutatis mutandis, Peruzzo and Martens v. Germany (dec.), nos. 7841/08 and 57900/12, § 44, 4 June 2013, as well as B.B. and M.B., cited above, §§ 62 and 54 respectively).", "45. Therefore, the Court considers that, owing to its duration and the lack of a possibility of deletion, the current regulations on the storage of DNA profiles in the FNAEG, to which the applicant objected by refusing to undergo sampling, does not provide the data subject with sufficient protection. It therefore does not strike a fair balance between the competing public and private interests. 46. These facts are sufficient for the Court to find that the respondent State overstepped its margin of appreciation in this sphere.", "Therefore, the applicant’s conviction for having refused to undergo DNA profiling for inclusion in the FNAEG amounted to a disproportionate infringement of his right to respect for private life, and therefore cannot be deemed necessary in a democratic society. 47. There has accordingly been a violation of Article 8 of the Convention. ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 2. Holds that there has been a violation of Article 8 of the Convention; ...", "Done in French, and notified in writing on 22 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF NELYUBIN v. RUSSIA (Application no. 14502/04) JUDGMENT STRASBOURG 2 November 2006 FINAL 26/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nelyubin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK.", "Hajiyev, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 12 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14502/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Konstantinovich Nelyubin (“the applicant”), on 14 March 2004. 2. The applicant was represented before the Court by Ms S. Anisimova, a lawyer practising in Lipetsk.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained about the quashing of the judgment in his favour by way of supervisory review and alleged a violation of his property rights. 4. On 9 September 2005 the Court decided to give notice of the application to the respondent Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. 6.", "The Chamber decided, after consulting the parties, that no hearing on the admissibility and/or merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1948 and lives in Lipetsk. In 1994 he retired from military service.", "8. In 2002 he sued the Military Service Commission of the Lipetsk Region (“the Military Commission”), seeking to recover the unpaid pension for the period from February 1994 to November 1998. 9. On 15 July 2002 the Pravoberezhniy District Court of Lipetsk granted him claim in full and awarded him 32,947.11 Russian roubles (“RUR”) in respect of the unpaid pension. In November 2002 the Military Commission paid him the amount awarded.", "10. The applicant lodged a new claim against the Military Commission, seeking to recover damages incurred through belated payment of the pension. 11. On 27 January 2003 the Pravoberezhniy District Court granted his claim and awarded him RUR 145,835.69 in damages. 12.", "The Military Commission did not lodge an ordinary appeal against the judgment and it became binding and enforceable on 6 February 2003. 13. On 23 February 2003 the bailiffs’ service of the Pravoberezhniy District instituted enforcement proceedings. 14. On 20 May 2003 the Military Commission filed an application for supervisory review of the judgment, claiming that the civil-law provisions relating to compensation for damages were not applicable to pensions.", "15. On 25 September 2003 the Presidium of the Lipetsk Regional Court held a supervisory-review hearing. It held that the first-instance court had correctly established the facts but erroneously applied the substantive law because the damages could only be recovered for the three years immediately preceding the judicial decision. On that ground it quashed the judgment of 27 January 2003 and rejected the applicant’s claim in full. II.", "RELEVANT DOMESTIC LAW 16. The Code of Civil Procedure of the Russian Federation provides as follows: 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 387. Grounds for quashing or altering judicial decisions by 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.” III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 17. Interim Resolution Res DH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention... Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003; Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied... Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all; Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation; Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions; Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure... CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court’s judgments; ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final...", "ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular: -continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law... -to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case; -to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law; -to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...” 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 18. The applicant complained that the quashing of the judgment of 27 January 2003 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 19. The Government submitted that the supervisory-review instance had issued a correct and lawful decision. The applicant had neither “existing possessions” nor a “legitimate expectation” within the meaning of Article 1 of Protocol No.", "1 because the supervisory-review court had found no reason to make an award in respect of damages. 20. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Alleged violation of Article 6 of the Convention 21. The Government pointed out that an application for supervisory review had been lodged by a party to the proceedings only three months and fourteen days after the judgment of 27 January 2003 had become binding. They referred to the German Code of Civil Procedure which provided for a possibility to lodge an application for review of a judicial decision within one month after its service.", "There had therefore been no violation of the principle of legal certainty. 22. 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). 23.", "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). 24. 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).", "25. 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). 26.", "In the present case the judgment of 27 January 2003 in the applicant’s favour was set aside by the way of a supervisory review on the ground that the District Court had incorrectly applied the substantive law. The Court has to assess whether the power to conduct a supervisory review was exercised by the authorities so as to 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 Government distinguished the present application from the above-mentioned cases on account of the fact that the supervisory-review procedure had been initiated by the Military Commission, that is a party to the case, within four months of the delivery of the judgment.", "The Court, however, is not persuaded that this distinction is of crucial importance for its analysis. 28. 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 (see the case-law cited in paragraph 23 above). 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 27 January 2003 was quashed by way of supervisory-review because of incorrect application of the substantive law.", "That defect could have been rectified 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. 29. 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 Commission 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 27 January 2003.", "Instead, it applied for supervisory review more than three months later, after the judgment in the applicant’s favour had become binding and enforceable and after the bailiffs had initiated enforcement proceedings (see paragraph 13 above). The Government did not point to any exceptional circumstances that would have prevented the Military Commission from making use of an ordinary appeal in good time. 30. Having regard to these considerations, the Court finds that, by granting the Military Commission’s request to set aside the judgment of 27 January 2003, the Presidium of the Lipetsk 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 31. The Government claimed that there was no violation of the applicant’s property rights because he had not had any “possessions”. 32.", "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; and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 33.", "The Court observes that the proceedings concerned compensation for belated payment of a pension. A substantial amount was recovered by a domestic court from the State Military Commission. The quashing of the enforceable judgment 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. In these circumstances, the Court considers that the quashing of the judgment of 27 January 2003 by way of supervisory review placed an excessive burden on the applicant and was therefore incompatible with Article 1 of the Protocol No. 1.", "There has therefore been a violation of that Article. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 35.", "The applicant claimed 145,835.69 Russian roubles in respect of compensation for pecuniary damage, representing the amount due to him under the quashed judgment of 27 January 2003. He did not make a claim for non-pecuniary damage. 36. The Government claimed that no award should be made because the applicant’s claim had been rejected by the domestic courts. 37.", "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 had been quashed four months after it had become binding and enforceable. The applicant was thereby prevented from receiving the money he had legitimately expected to receive. There has been therefore a causal link between the violations found and the applicant’s claim for the pecuniary damage. Accordingly, the Court awards him the entire amount claimed, that is 145,836 Russian roubles, plus any tax that may be chargeable on it.", "B. Costs and expenses 38. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head. C. Default interest 39.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 145,836 (one hundred and forty-five thousand eight hundred and thirty-six) Russian roubles in respect of the 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. Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident" ]

[ "FIRST SECTION CASE OF GAHRAMANLI AND OTHERS v. AZERBAIJAN (Application no. 36503/11) JUDGMENT STRASBOURG 8 October 2015 FINAL 08/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gahramanli and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Elisabeth Steiner,Khanlar Hajiyev,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Dmitry Dedov, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36503/11) 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 three Azerbaijani nationals, Mr Fuad Ali oglu Gahramanli (Fuad Əli oğlu Qəhrəmanlı), Mr Zalimkhan Adil oglu Mammadli (Zəlimxan Adil oğlu Məmmədli) and Mr Namizad Heydar oglu Safarov (Namizəd Heydər oğlu Səfərov) (“the applicants”), on 1 June 2011. 2. The applicants were represented by Mr H. Hasanov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicants alleged, in particular, that the election in their electoral constituency had not been free and fair owing to numerous instances of electoral fraud and that their right to stand for election had been infringed due to the relevant authorities’ failure to effectively address their complaints concerning election irregularities. 4. On 9 December 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1975, 1957 and 1955 respectively and live in Baku. 6. The applicants stood as candidates for the opposition parties in the parliamentary elections of 7 November 2010 in the single-mandate Khatai First Electoral Constituency No. 33. Mr Fuad Gahramanli was nominated by the coalition of the Popular Front and Musavat parties, Mr Zalimkhan Mammadli by the Classic Popular Front Party and Mr Namizad Safarov by the Karabakh electoral bloc.", "7. The constituency was divided into thirty-five electoral precincts, with one polling station in each precinct. It is apparent that there were a total of eight candidates running for election in the constituency. 8. According to the official election results, Mr H.M., the candidate nominated by the ruling Yeni Azerbaijan Party, won the election with 9,805 votes.", "Mr Zalimkhan Mammadli finished second with 1,893 votes, Mr Fuad Gahramanli third with 1,571 votes and Mr Namizad Safarov last with 157 votes. A. The applicants’ complaints concerning alleged irregularities on election day 9. On 10 November 2010 the applicants, together with one other candidate, jointly lodged nearly identical complaints with the Constituency Electoral Commission (the “ConEC”) and the Central Electoral Commission (the “CEC”). They complained that the election results had not reflected the true opinion of the voters because there had been numerous instances of electoral fraud and irregularities on election day, and they requested the annulment of the election results in their constituency.", "They alleged that: (a) In all the constituency polling stations, employees of the Khatai District Executive Authority and people affiliated with Mr H.M. had, in an organised manner, brought a number of persons not registered as voters into constituency polling stations to cast voting ballots; (b) There had been instances of ballot-stuffing in numerous polling stations; (c) The number of ballots cast in all the polling stations had been more than three times higher than the number of voters who had come to cast votes in all the polling stations; (d) In one polling station, observers and consultative members of precinct electoral commissions (“PECs”) (commission members with no voting rights) had been prevented from participating in the vote-counting process. 10. The applicants also requested that their presence be ensured at the commission hearings concerning their complaints. 11. In support of their allegations, the applicants submitted to the electoral commissions more than a hundred statements (akt) made by election observers documenting specific instances of the irregularities complained of.", "12. The applicants submitted copies of approximately fifty of the above‑mentioned statements to the Court concerning alleged irregularities in Polling Stations nos. 4, 5, 6, 9, 10, 11, 13, 14, 16, 18, 19, 20, 21, 23, 24, 25, 28, 29, 30, 33, 34 and 35. Some examples of those statements are summarised below. 13.", "Two observers in Polling Station no. 34 claimed to have witnessed an incident of ballot-box stuffing by two PEC members. They noted that, although fewer than 240 voters had been counted throughout the day, a total of 534 ballots had been found in the ballot box and officially counted. 14. Three observers in Polling Station no.", "9 witnessed an incident where the PEC chairman had given a stack of several pre-marked ballots to a voter, who then accidentally dropped them on the floor near the ballot box. Despite this, the ballots were gathered up and put into the ballot box in plain view of all those present. In a separate statement, the same three observers noted two other incidents of similar ballot-box stuffing allegedly initiated by the PEC chairman. 15. Three observers in Polling Station no.", "19 noted that, although a total of only 259 voters had been counted throughout the day, the number of ballots found inside the ballot box at the end of the day had exceeded 400. 16. One consultative member of the PEC and two observers in Polling Station no. 18 noted that they had been prevented from standing at a place where they could observe, in an unobstructed manner, the checking of voters’ forefingers for election ink. This had presumably been done by persons in charge in the precinct, 17.", "Three observers in Polling Station no. 25 noted that, although a total of only 235 voters had been counted throughout the day, 496 ballots had been found in the ballot box. The ballot box contained clumps of ballots, suggesting that ballot-box stuffing had taken place. 18. Observers in a number of other polling stations had also noted similarly significant differences between the numbers of ballots in the ballot boxes and the numbers of voters who had been observed casting votes throughout the day.", "B. Examination of the complaint by the CEC 19. According to the applicants, they did not receive any reply from the ConEC and their complaint had been examined by the CEC only. 20. On 13 November 2010 the CEC extended the statutory three-day period for examining the complaint for an indefinite period of time, noting that “additional enquiries” were required.", "21. On 21 November 2010, R.I., the member of the CEC’s expert group who had been charged with dealing with the complaint delivered his opinion, stating that the complaint should be dismissed as unsubstantiated. 22. By a decision of 21 November 2010, the text of which was essentially a repetition of the opinion delivered by the expert R.I., the CEC dismissed the applicants’ complaint as unsubstantiated. It appears that the applicants were not present at the CEC hearing.", "23. In its decision, the CEC noted that the applicants should first have taken their complaints to the relevant PECs. They could then have appealed against the decisions of the various PECs to the ConEC, and only then should they have complained to the CEC, whereas ‒ in breach of the above procedure ‒ they had applied directly to the CEC. The CEC nevertheless decided to examine the complaint on the merits. 24.", "As to the merits of the complaint, the CEC found, in particular, that “the majority of the observers’ statements [as submitted by the applicants] were of a general character and did not reflect the principle that an observation must be based on fact”. It furthermore found that a number of the statements contained an assessment of the alleged irregularity based solely on observers’ “subjective opinions”. As an example of this, the CEC mentioned the statement of three observers from Polling Station no. 25 (see paragraph 17 above). 25.", "Furthermore, the CEC noted that the information in the observers’ statements which the applicants submitted ‒ of which there were more than hundred ‒ was refuted by the statements of over one hundred other observers from “all thirty-five polling stations” who had not registered any breaches of electoral law that could affect the election results. According to the CEC, some of those observers represented the opposition. In particular, the CEC mentioned the names of a number of observers from Polling Stations nos. 3, 4, 6, 8, 9 and 15 who, according to the CEC, “had confirmed that no breaches of the electoral legislation had been observed”. Moreover, the CEC noted that PEC members in all the polling stations had stated that, on election day, they had not received any statements or complaints by any observer or candidate concerning any election irregularities and that the election process in their respective polling stations had been lawful and conducted under adequate conditions.", "26. In conclusion, the CEC found that the examination of the written evidence refuted the allegations made by the applicants and that no grounds for invalidating the election results could be established. C. Court proceedings 27. On 25 November 2010 the applicants, together with one other candidate, lodged an appeal against the CEC decision with the Baku Court of Appeal. In the appeal, they reiterated the complaints made to the CEC about the alleged irregularities on election day.", "They also complained that ‒ contrary to the requirements of Article 112-1.7 of the Electoral Code ‒ their presence at the CEC hearing had not been ensured and that the CEC had deliberately not investigated the serious allegations of electoral fraud and irregularities. 28. By a judgment of 26 November 2010 the Baku Court of Appeal dismissed the applicants’ appeal, mostly reiterating the CEC’s reasoning. In particular, it noted that the applicants and their observers had not immediately complained of the alleged irregularities directly to the relevant PECs on election day. It furthermore found that the CEC had properly investigated the allegations and had found that they had been refuted by a number of other observers representing various political parties, including opposition parties, who had stated that no serious irregularities had taken place in any polling station.", "29. A copy of the Baku Court of Appeal’s judgment was made available to the applicants on 30 November 2010. 30. In the meantime, on 22 November 2010 the CEC had sent its final election results record and other relevant documents for review and final approval by the Constitutional Court. On 29 November 2010 the Constitutional Court confirmed the country-wide election results, including the election results in the applicants’ constituency, as final.", "31. On 1 December 2010 the applicants lodged an appeal with the Supreme Court against the Baku Court of Appeal’s judgment. They reiterated the complaints and arguments raised before the CEC and the Baku Court of Appeal. They also complained of the following: (a) as to the CEC’s and the appellate court’s remark that the irregularities allegedly observed on election day had not been communicated to the PECs immediately on that same day, the applicants noted that it had been precisely the conduct of the PECs ‒ which had created a hostile environment for opposition observers and had themselves been largely responsible for those irregularities ‒ that had made it impossible or difficult for the applicants and their observers to attempt to deal with the irregularities at the PEC level; (b) both the CEC and the Baku Court of Appeal had given more weight to the statements of pro-Government observers, which had assessed the election process positively, than to those of the applicants’ observers. The CEC and the Baku Court of Appeal did not explain the reasons for doing so.", "Moreover, while the CEC noted that positive statements about the conduct of the election had been made even by some observers from opposition parties, the applicants claimed the CEC had simply fabricated the existence of such statements by purported pro-opposition observers. 32. On 6 December 2010 the Supreme Court dismissed the applicant’s appeal, agreeing with the lower court’s reasoning. It also added that the applicants’ appeal and the Baku Court of Appeal’s judgment had to be assessed in the light of Article 63.4 of the Law on the Constitutional Court, which stated that the Constitutional Court’s decisions were final and could not be subject to quashing, amendment or official interpretation by any authority or person. In this regard, the Supreme Court reasoned as follows: “The results of the [parliamentary] elections of 7 November 2010 were recognised as valid by [the CEC’s] election results record of 22 November 2010 and the candidates elected as members of parliament from all 125 electoral constituencies were determined.", "The aforementioned results record was approved by the CEC decision of 22 November 2010, and [on the same date] the final election results record, together with the [ConEC] results records and additional documents, were submitted to the Constitutional Court for verification and approval of the election results. By a decision of the Plenum of the Constitutional Court on the results of the [parliamentary] elections of 7 November 2010 ..., dated 29 November 2010, the CEC’s final results record of 22 November 2010 was deemed compliant with the requirements of Articles 100.2, 100.12, 108.2 and 171.2 of the Electoral Code of the Republic of Azerbaijan, and the election results concerning 125 electoral constituencies, including Khatai First Electoral Constituency no. 33, were approved, that decision becoming final at the moment of its delivery. It follows from that decision that the Constitutional Court did not establish any circumstances that may have taken place during the voting or the determination of the election results that could have prevented the establishing of the will of the voters in Khatai First Electoral Constituency no. 33.", "Taking into account the fact that the aforementioned decision [of the Constitutional Court] is final and not subject to quashing, amendment or official interpretation by any authority or person, the court considers that the judgment of the appellate court [dismissing the applicants’ complaints] must be upheld.” II. RELEVANT DOMESTIC LAW A. Electoral Code 1. Electoral commissions: system, composition and decision-making procedure 33. Elections and referenda are organised and carried out by electoral commissions which are competent to deal with a wide range of issues relating to the electoral process (Article 17).", "There are three levels of electoral commissions: (a) the Central Electoral Commission (CEC); (b) constituency electoral commissions (ConECs); and (c) precinct (polling station) electoral commissions (PECs) (Article 18.1). 34. Each electoral commission at every level has a chairperson and two secretaries who are elected by open voting by members of the relevant electoral commission. The chairperson of each electoral commission at every level must be a representative of the political party holding the majority of parliamentary seats in the National Assembly. One of the secretaries must be a representative of the political parties holding the minority of parliamentary seats, and the other one a representative of “independent” members of parliament who are not formally affiliated with any political party (Article 19.3).", "35. Meetings of the electoral commissions at every level may be convened either by the chairperson or by at least one third of the relevant commission’s members (Article 19.5). The quorum for meetings of any electoral commission is at least two-thirds of the members who have voting rights (Article 19.10). The qualified majority vote of at least two-thirds of the members who are in attendance is required for the adoption of decisions of any commission at any level (Articles 28.2, 34.3 and 39.3). 36.", "The CEC consists of eighteen members who are elected by the National Assembly. Six members of the CEC are directly nominated by and represent the political party holding a majority of seats in the National Assembly, six members are nominated by and represent members of parliament who are not affiliated with any political party (independents), and six members are nominated by and represent all the remaining political parties holding a minority of parliamentary seats. Out of the six nominees representing the independent members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed by the representatives of the majority party and the other is agreed by the representatives of the minority parties (Article 24). 37. Each ConEC consists of nine members who are appointed by the CEC.", "Three members of the ConEC are nominated by the CEC members representing the parliamentary majority party, three members are nominated by the CEC members representing the parliamentary minority parties, and three members are nominated by the CEC members representing the members of parliament who are not affiliated with any political party. Local branches of the relevant political parties may suggest candidates to ConEC membership for nomination by the CEC members representing the relevant parties. Out of the three candidates nominated by the CEC members representing the members of parliament who are not affiliated with any political party, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed with the CEC members representing the parliamentary majority party and the other is agreed with the CEC members representing the parliamentary minority parties (Article 30). 38. Each PEC consists of six members appointed by the relevant ConEC.", "Two members of the PEC are nominated by the ConEC members representing the parliamentary majority party, two members are nominated by the ConEC members representing the parliamentary minority parties, and two members are nominated by the ConEC members representing the members of parliament who are not affiliated with any political party. Local branches of the relevant political parties may suggest candidates for PEC membership for nomination by the ConEC members representing the relevant parties. As to candidates for PEC membership nominated by the ConEC members representing the members of parliament who are not affiliated with any political party, these candidates may also be suggested to the relevant ConEC members by voters or voters’ initiative groups. These candidates must be citizens of the Republic of Azerbaijan who permanently reside within the territory of the relevant electoral constituency (Article 36). 2.", "Examination of electoral disputes 39. Candidates and other interested parties may complain about decisions or actions (or omissions to act) violating the electoral rights of candidates or other interested parties within three days of the publication or receipt of such decisions or the occurrence of such actions (or omissions) or within three days of an interested party having become aware of such decisions or actions (or omissions) (Article 112.1). 40. Such complaints may be submitted directly to a higher electoral commission (Article 112.2). If a complaint is first decided by a lower electoral commission, a higher electoral commission may quash its decision or adopt a new decision on the merits of the complaint or remit the complaint for a fresh examination (Article 112.9).", "Decisions or actions (or omissions to act) of a ConEC may be appealed against to the CEC, and decisions or actions (or omissions to act) of the CEC may be appealed against to the appellate court (Article 112.3). 41. If the examination of the complaint reveals a suspicion that a criminal offence has been committed, the relevant prosecuting authority can be informed thereof. The CEC must adopt a reasoned decision in this regard. The relevant prosecution authority must examine this information within a three-day period (Article 112.4).", "42. While examining requests for annullment of the election of a specific candidate, the relevant electoral commission has the right to hear submissions from citizens and officials as well as to obtain the requisite documents and evidential material (Article 112.8). 43. The relevant electoral commission shall adopt a decision on any complaint submitted during the election period and deliver it to the complainant within three days of the receipt of such complaint, except for complaints submitted on election day or the day after election day, which shall be examined immediately (Article 112.10). 44.", "For the purposes of investigating complaints concerning breaches of electoral rights, the CEC shall create an expert group consisting of nine members (Article 112-1.1). 45. If a complainant expresses a wish to participate in the hearing of an electoral commission examining his complaint, he or she must be informed of the time and place of the hearing one day in advance (Article 112-1.7). 46. Complaints concerning decisions of electoral commissions shall be examined by courts within three days (unless the Electoral Code provides for a shorter period).", "The period for lodging an appeal against a court decision is also three days (Article 112.11). 47. Persons illegally interfering with the election process and otherwise violating electoral rights of voters and candidates may bear criminal, civil or administrative responsibility under the Criminal Code, the Civil Code or the Code of Administrative Offences (Article 115). 3. Vote-counting, tabulation and approval of election results 48.", "After the counting of votes in a polling station at the end of election day, the PEC draws up an election results record (protokol), in three original copies, documenting the results of the voting in the polling station (Articles 106.1‑106.6). One copy of the PEC results record, together with other relevant documents, is then submitted to the relevant ConEC within twenty‑four hours (Article 106.7). The ConEC verifies whether each PEC results record and documents attached to it comply with the law and whether there are any inconsistencies (Article 107.1). After submission of all the PEC results records, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a results record, in three original copies, reflecting the aggregated results of the vote in the constituency (Articles 107.2 -107.7). One copy of the ConEC results record, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4).", "The CEC verifies whether the ConEC results records comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final results record reflecting the results of the elections in all constituencies (Article 108.2). 49. The Constitutional Court reviews and approves the results of the elections (Article 171.1). For this purpose, the CEC conducts a review of the ConEC results records, together with other relevant documents over a period of no more than twenty days following election day, and then submits them to the Constitutional Court within forty-eight hours (Article 171.2). 50.", "Within ten days of receipt of the above documents the Constitutional Court determines, with the assistance of experts, whether they are in accordance with the requirements of the Electoral Code. If necessary, this ten-day period may be extended (Article 171.3). B. Law on the Constitutional Court 51. Article 63.4 of the Law on the Constitutional Court states: “A decision of the Plenum of the Constitutional Court shall be final and cannot be cancelled, changed or officially interpreted by any organ or official.” III.", "RELEVANT INTERNATIONAL DOCUMENTS A. Code of Good Practice in Electoral Matters 52. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 18‑19 October 2002), read: “GUIDELINES ON ELECTIONS ... 3. Procedural guarantees 3.1. Organisation of elections by an impartial body a.", "An impartial body must be in charge of applying electoral law. b. Where there is no longstanding tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level. c. The central electoral commission must be permanent in nature. d. It should include: i. at least one member of the judiciary; ii.", "representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters. It may include: iii. a representative of the Ministry of the Interior; iv. representatives of national minorities. e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body.", "Equality may be construed strictly or on a proportional basis... ... h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus. ... 3.3. An effective system of appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance.", "In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. ... d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome.", "It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. ... g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant’s right to a hearing involving both parties must be protected.", "i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. ... EXPLANATORY REPORT ... 3.1. Organisation of elections by an impartial body 68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre‑election period to the end of the processing of results.", "69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior. 70. However, in states with little experience of organising pluralist elections, there is too great a risk of government’s pushing the administrative authorities to do what it wants.", "This applies both to central and local government - even when the latter is controlled by the national opposition. 71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity. ... 3.3. An effective system of appeal 92.", "If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 93. There are two possible solutions: - appeals may be heard by the ordinary courts, a special court or the constitutional court; - appeals may be heard by an electoral commission.", "There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. ... 95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections.", "In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.", "96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases. ... 99. Standing in such appeals must be granted as widely as possible.", "It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101.", "The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station.", "This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.” B. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Final Report on the Parliamentary Elections of 7 November 2010 (Warsaw, 25 January 2011) (“the OSCE Report”) 53.", "The relevant excerpts from the OSCE Report read as follows: “IV. ELECTION SYSTEM AND THE LEGAL FRAMEWORK A. ELECTION SYSTEM Parliamentary elections are conducted under a majoritarian system. Members of parliament are elected in 125 single-mandate constituencies for a five-year term, in one round of voting. The candidate who obtains the highest number of votes is considered elected.", "... ... V. THE ELECTION ADMINISTRATION The 7 November parliamentary elections were administered by a three-tiered system of election administration, headed by the 18-member CEC. There are 125 ConECs and 5,175 PECs. These election commissions are permanent bodies appointed for a five-year term. Members of the CEC are elected by parliament, ConECs are appointed by the CEC, and PECs by the relevant ConECs. ...", "According to the Election Code, the composition of all election commissions reflects the representation of political forces in the parliament: three equal quotas are reserved for members nominated by the parliamentary majority (i.e. YAP), parliamentarians elected as independent candidates, and the parliamentary minority (defined as the remaining political parties represented in the parliament). This formula remains highly contentious, since in practice it establishes the domination of the election administration by pro-government forces, which have a decisive majority in all commissions. Moreover, the chairpersons of all election commissions are by law nominees of the parliamentary majority. This domination undermines confidence in the independence and impartiality of election administration bodies and does not ensure that they enjoy public confidence.", "The OSCE/ODIHR and the Venice Commission have repeatedly recommended that the formula be revised in a manner which would ensure that election commissions are not dominated by pro-government forces and enjoy public confidence, in particular the confidence of political parties contesting the elections. This recommendation has not been addressed. ... OSCE/ODIHR EOM LTOs assessed the performance of ConECs as generally efficient and professional as far as the technical preparations of the election process were concerned. However, they expressed serious concerns regarding the impartiality of ConECs, which generally appeared to favor YAP candidates or incumbent independent candidates. The lack of impartiality of ConECs became particularly apparent during the candidate registration process and in the handling of electoral disputes by ConECs.", "... XIV. ELECTION DAY While election day was generally calm and peaceful, international observers reported a high occurrence of serious irregularities and procedural violations, including ballot box stuffing. ... A. OPENING AND VOTING ... Overall, international observers assessed voting positively in 89 per cent of polling stations visited, while voting was assessed negatively in a considerable 11 per cent of the 1,247 polling stations visited (127 polling stations), indicating systemic irregularities.", "The most widely observed procedural violations during voting concerned inking, an important safeguard against multiple voting. In 12 per cent of polling stations visited, not all voters were checked for traces of invisible ink; in 8 per cent, not all voters were marked with ink. Twenty-three PECs where voting was observed did not check voters for ink at all, and 12 PECs did not ink any voters. International observers reported from seven polling stations that voters who had already been inked were nonetheless allowed to vote. ... International observers noted a series of identical signatures on the voter list in 100 of the polling stations visited, and ballot box stuffing in a significant 63 cases.", "Group voting was observed in 7 per cent of polling stations visited, proxy voting in 2 per cent, and multiple voting in 1 per cent. In 25 polling stations visited, voters were allowed to vote although they were not able to produce any of the prescribed identity documents. ... In 7 per cent of polling stations visited, not all voters marked their ballots in secret. International observers also noted 12 cases where one person was “assisting” numerous voters, potentially undermining the secrecy of the vote.", "... International observers reported 65 instances of tension in and outside polling stations, 20 attempts to influence for whom voters should cast their ballots, and 9 cases of intimidation of voters. They also noted instances of campaigning or the presence of campaign material in the vicinity of and inside polling stations. Unauthorized persons were identified in 79 polling stations and interfered in or directed the process in 19 instances. Proxies of candidates, parties and electoral blocs were present in 91 per cent of polling stations visited, and domestic non-party observers, in 56 per cent. ... International observers noted some cases where observers and proxies were expelled from polling stations and received reports of them being pressured, detained or physically assaulted.", "Regrettably, international observers were restricted in their observation in 114 polling stations. B. COUNTING While 105 of the 152 counts observed were evaluated positively, observers assessed the vote count negatively in a 47 instances (32 per cent), a significantly high number. In 14 cases, the number of ballots in the mobile or stationary ballot box was higher than the number of signatures on the voter list or the written requests for mobile voting, and 31 ballot boxes contained clumps or stacks of ballots, suggesting that ballot box stuffing had occurred earlier. In a few cases, the PEC counted the ballots in a different room.", "Election results were tampered with in 13 polling stations. Significant procedural errors and omissions were reported from over one quarter of counts observed. A considerable number of PECs did not perform basic reconciliation procedures required by law, such as counting and entering into the protocols the number of voters’ signatures on the voter lists (61 cases), of DVCs [de-registration voting card] retained (25 cases), or of requests for mobile voting (25 cases). Twenty‑eight PECs did not cancel unused ballots after the end of voting, and 33 did not place spoiled ballots in a separate envelope. Fifty-one PECs did not enter all figures from the reconciliation procedures in the draft protocol before opening the ballot boxes, and 41 did not crosscheck them for mathematical consistency.", "In five polling stations where the count was observed, ballot box seals were not intact when the boxes were opened, and in 13 cases, their serial numbers did not match those entered in the draft protocol during the opening of the polling station. Ballot validity was not always determined in a reasonable and consistent manner (16 and 14 cases, respectively), with PECs not voting on the validity of disputed ballots in 42 of the counts observed. In 31 counts observed, not everybody present was able to see clearly how ballots had been marked, and in 12 instances, PEC members or observers were not allowed to examine ballots upon request. In 48 counts observed, the data established was not announced before being entered into the draft protocol. In ten polling stations, unauthorized persons were present during the count, and in six, such persons interfered in or directed the process.", "Persons other than PEC members were seen participating in the count in 12 polling stations. ... ... XVI. POST-ELECTION COMPLAINTS AND APPEALS A. ADJUDICATION OF POST-ELECTION COMPLAINTS BY THE CEC The CEC reviewed, up to 22 November, over 120 complaints, 73 of which requested the invalidation of results in 50 constituencies. Plaintiffs cited grave irregularities such as ballot stuffing, multiple voting and proxy voting, in particular in military polling stations, voting by unauthorized persons, interference and pressure by executive officials, obstruction of observers, breaches of the law during the vote count and the tabulation of results, and discrepancies between PEC and ConEC protocols. They also requested the prosecution of officials and individuals who allegedly committed electoral offences.", "The CEC review of complaints lacked due process and transparency; the investigation was conducted solely by one member of the expert group to whom the case was assigned and whose opinion was presented only briefly and was always adopted unquestioningly by the majority of CEC members. The substance of the complaints was not discussed during the CEC sessions. Instead of attempting to ascertain the authenticity of the dispute, it invoked formalistic reasons to deny a thorough examination of the complaints. On one occasion, the CEC debated whether a complaint should be discussed on its merits, because there was a difference between the plaintiff’s signature on the complaint and the signature on his ID, while no effort was made to contact the plaintiff. Some complaints were dismissed on the grounds that there were differences in the signatures of observers who signed several statements on violations and because the CEC estimated that observers could not have visited a certain number of polling stations within the time indicated in the statements.", "Documents which had been submitted as evidence, such as PEC protocols, were not examined or discussed during the sessions, under the pretext that they were not the originals. In response to complaints alleging that groups of people were carried around by buses and voted multiple times, the CEC chairperson stated during a session that the CEC only investigates events inside polling stations and that all else does not concern the CEC. Plaintiffs attended the sessions where their complaints were being reviewed only on very few occasions and complained that they were given very short notice before the session. They also claimed that PECs and ConECs in several instances refused to accept their complaints. Even though ConECs at times sent their decisions by mail, with delivery to the plaintiffs taking several days, the CEC dismissed the subsequent appeal on the grounds that they were submitted past the three-day legal deadline.", "... B. ADJUDICATION OF APPEALS BY THE COURTS Over 60 appeals against CEC decisions were lodged with the Baku Court of Appeal, all of which were dismissed. The court upheld all CEC decisions without proper investigation of the appellants’ arguments. The court in all but a few cases did not call and did not examine testimonies of witnesses suggested by the appellants. The reasons why the court did not call witnesses and hear testimonies were not indicated in the decisions, even though the Code of Civil Procedures clearly states that the section of a court decision which is motivating the decision should mention the reasons for refusal to accept any evidence referred to by the persons participating in a case. Requests by appellants to have original documents which they had previously submitted to the CEC returned to them were routinely refused.", "In one case, the appellant requested the court to oblige the CEC to provide the footage from the video camera installed in a polling station as evidence. The CEC lawyer claimed that the video recordings were in the archive and could not be submitted. The Court did not address the request either during the hearing or in its decision. Results protocols certified by PECs which were different from those posted on the CEC website were presented during hearings but were not taken into account by the court, which accepted the CEC’s explanation that after recounts no discrepancies were found. The OSCE/ODIHR EOM is aware of approximately 30 cases that were reviewed by the Supreme Court.", "Requests to the court by the OSCE/ODIHR EOM for information regarding election-related cases went unanswered. The court did not address the shortcomings and deficiencies in the adjudication of complaints by the CEC and the Baku Court of Appeal and dismissed all appeals. Attorneys of the appellants claimed they were given notice of only an hour or two before the hearings. Overall, the courts failed to provide effective remedy and on occasions even failed to comply with domestic legislation. C. COMPILATION AND ADOPTION OF THE FINAL RESULTS PROTOCOL The CEC compiled and sent to the Constitutional Court the final protocol of the election results on 22 November, even before the deadlines for challenging CEC decisions in the courts had expired.", "The protocol was signed by 17 out of 18 CEC members. The Constitutional Court validated the election results by a final decision on 29 November, when cases were still pending before the Baku Court of Appeal and deadlines for challenging Court of Appeal’s decisions to the Supreme Court had not expired. This effectively deprived stakeholders of the opportunity to exercise their constitutional right to seek legal redress.” C. Explanatory memorandum by Mr Pedro Agramunt and Mr Tadeusz Iwiński, co-rapporteurs, to Resolution 2062 (2015) of the Parliamentary Assembly of the Council of Europe, “The functioning of democratic institutions in Azerbaijan” 54. The following are extracts from the explanatory memorandum: “4. Elections ... 27.", "Concerning the Electoral Code, in March 2008, the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) and the Venice Commission prepared a joint interim opinion on the draft amendments to the Code. The [National Assembly] adopted the amendments on 2 June 2008. Another Venice Commission and OSCE/ODIHR joint opinion was adopted in June 2008 on the adopted amendments to the Electoral Code. Since then, the Electoral Code was further amended in June 2010, April 2012 and April 2013, but key issues were not tackled, in particular the reform of the composition of the electoral administration, which lacks independence. 28.", "In their previous report on “The honouring of obligations and commitments by Azerbaijan” of 20 December 2012 the then co-rapporteurs expressed concern over the fact that previous Venice Commission recommendations had not been addressed. The biggest concerns were about the composition of the Central Electoral Commission and territorial electoral commissions, candidate registration, observers, the electoral roll and its accuracy, as well as the complaints and appeals procedure. Since then, the electoral code has not been amended to improve the composition of the electoral administration and candidates’ and voters’ registration, despite the Venice Commission recommendations: 29. The Central Electoral Commission is appointed by parliament: one third of its members are proposed by the majority, one third by the minority and the last third by independent members of parliament. Although this could be seen as an appropriate system in theory, in practice, this formula provides pro-government forces with a decisive majority and results in a lack of commission members from the opposition.", "[Footnote: “... See also former election reports and joint Venice Commission and OSCE/ODIHR opinions issued in 2008, 2005, 2004 and 2003, in which it has been repeatedly stated, departing from the experience in past elections, commission members appointed by theoretically “independent” sections of the parliament or small parties tend, in reality, to vote in line with the governing party – see, among others, CDL-AD(2003)015, CDL-AD(2004)016rev, CDL-AD(2005)029 and CDL‑AD(2008)011.”] By law, all chairpersons of all electoral commissions are nominated by the parliamentary majority. Constituency electoral commissions are appointed by the Central Electoral Commission, and precinct electoral commissions are appointed by the relevant constituency electoral commissions. In view of the above, the composition of the commissions is detrimental to the independence of the electoral administration and thus undermines confidence in the electoral process. ... 32. ...", "The importance of independence in the composition of electoral commissions has ... repeatedly been highlighted by the Venice Commission, which recommends that central electoral commissions include at least one member of the judiciary. These conclusions were subsequently reflected in the opinion of the Venice Commission on the draft amendments to the Electoral Code of the Republic of Azerbaijan.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION 55. Relying on Article 3 of Protocol No.", "1 to the Convention and Article 13 of the Convention, the applicants complained that, in the electoral constituency where they had run for the parliamentary election, there had been a number of serious irregularities and breaches of electoral law which had made it impossible to determine the true opinion of voters and had thus infringed their right to stand as candidates in free elections. The domestic authorities, including the electoral commissions and courts, had failed to properly examine their complaints and to investigate their allegations concerning the aforementioned irregularities and breaches of electoral law. In particular, the examination of their appeal by the Supreme Court had been deprived of all effectiveness because the election results had already been approved by the Constitutional Court. They also argued that the structural composition of the electoral commissions at all levels ‒ dominated by pro-government political forces as they were ‒ had allowed electoral fraud to be committed by commission members to the detriment of opposition candidates and had been one of the reasons for the failure to effectively investigate it. 56.", "Having regard to the special features of the present case, the Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention and that no separate examination is necessary under Article 13. Article 3 of Protocol No. 1 reads: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 57. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 58.", "The Government submitted that the domestic legislation provided for an effective mechanism for the examination by the ConECs, the CEC, an appellate court and the Supreme Court of election-related complaints. 59. As to the structural composition of the electoral commissions, the Government noted that at all three levels the commission members represented the three categories of political forces represented in the parliament: the majority party, the independents and the remaining (minority) parties. As each of these forces is represented equally by one‑third of commission members, the existing system ensured that no political force was in a dominant position compared to the other two. 60.", "The Government argued that the applicants’ electoral complaint had been comprehensively and thoroughly examined by the electoral commissions and the courts in accordance with the requirements of the Electoral Code and other applicable legislation. The complaint had first been examined by a member of the CEC expert group who had produced an opinion before the CEC hearing. The CEC decision had been substantiated. The CEC had received statements from “a great number of observers ... representing various political parties, including the applicants’ [own] political parties”, which did not support the applicants’ allegations. On the basis of those statements, the CEC had decided that the applicants’ allegations were groundless.", "61. Lastly, the Government noted that applicants had been duly informed of the Baku Court of Appeal hearing and that two of them had attended it and had been heard by the court. Two of the applicants were also present at the Supreme Court hearing. As to the effectiveness of the examination of the appeal by the Supreme Court, the Government noted that the Supreme Court had not merely “mechanically referred” to the Constitutional Court’s decision approving the election results, but had also comprehensively examined all the relevant legal points of the appeal. 62.", "The applicants argued that the electoral commissions had not been independent but had operated under the influence and control of the Government, with the aim of creating various unfair advantages for the pro‑Government candidates. While at first sight it might appear that representatives of the ruling party formally held only one-third of the seats in each electoral commission, in reality the remaining commission members ‒ representing both the independents and the parliamentary‑minority parties ‒ were also pro-ruling-party and had followed the instructions of the authorities. Moreover, by law, the chairperson of every electoral commission at each level was nominated by the parliamentary-majority party. Thus, in practice, the system allowed the pro-government forces to effectively dominate in each electoral commission. 63.", "The applicants claimed that the relevant PECs had not only failed to address on the spot the irregularities that had allegedly taken place, but that the “majority of the violations of the law” had been actively encouraged by them. Despite this, the CEC had referred to statements by chairpersons and members of the relevant PECs ‒ in which the existence of irregularities was denied ‒ as a basis for rejecting the applicants’ complaints. It had also relied chiefly on the statements of observers representing pro-government political parties and “governmental NGOs”. The CEC had not explained why those statements were considered to constitute more reliable evidence than the applicants’ observers’ statements documenting the alleged irregularities. It had not questioned any of the applicants’ observers.", "64. According to the applicants, the Baku Court of Appeal’s judgment had lacked reasoning because it had failed to address the applicants’ arguments concerning the alleged irregularities and the unfairness of the CEC’s examination of those arguments. 65. They also claimed that the Supreme Court had examined the applicants’ appeal in a superficial manner and had, moreover, dismissed it partly on the basis of an extraneous reason, namely the fact that the Constitutional Court had already approved the election results. Moreover, the premature approval of the election results by the Constitutional Court, which had taken place before the period for the applicants’ appeal to the Supreme Court had expired, reduced the overall effectiveness of the appeal to the Supreme Court as a remedy.", "2. The Court’s assessment (a) General principles 66. Article 3 of Protocol No. 1 enshrines a principle that is characteristic of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113).", "This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46-51). 67. The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention and has emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no.", "2) [GC], no. 74025/01, § 58, ECHR 2005‑IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999‑I; Labita v. Italy [GC], no.", "26772/95, § 201, ECHR 2000‑IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002‑II). However, in the last resort it is for the Court to determine whether or not the requirements of Article 3 of Protocol No. 1 have been complied with. It must satisfy itself that the conditions imposed on the rights to vote and to stand for election do not curtail those rights to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52).", "In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62). 68. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports of Judgments and Decisions 1998‑I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III; and Lykourezos v. Greece, no.", "33554/03, § 56, ECHR 2006‑VIII). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would be merely illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina, cited above, § 35). This principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see, mutatis mutandis, Kovach v. Ukraine, no.", "39424/02, § 55, ECHR 2008). 69. The Court has established that the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections.", "Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 81, 8 April 2010). 70. The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party v. Georgia, no.", "9103/04, § 101, ECHR 2008) and for their decisions to be sufficiently well reasoned (see Namat Aliyev, cited above, §§ 81-90). (b) Application of those principles to the present case 71. In the present case, the Court notes that the applicants complained of numerous instances of irregularities and breaches of electoral law which had allegedly taken place during election day in various polling stations in their electoral constituency. They maintained that, due to the irregularities themselves as well as the domestic authorities’ failure to address them adequately, the election in their constituency had not been free and democratic and the official election results had not reflected the real opinion of the voters. 72.", "As for the applicants’ claims concerning the specific instances of alleged irregularities, the Court is not in a position to assume a fact-finding role by attempting to determine whether all or some of these alleged irregularities had taken place and, if so, whether they had amounted to irregularities capable of thwarting the free expression of the people’s opinion. Owing to the subsidiary nature of its role, the Court needs to be wary in assuming the function of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. The Court’s task under Article 3 of Protocol No. 1 is rather to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and has ensured that individual electoral rights were exercised effectively (see Namat Aliyev, cited above, § 77). 73.", "That said, the Court considers that the applicants have put forward a very serious and “arguable” claim disclosing an apparent failure to hold free and fair elections in their constituency. In particular, they complained, inter alia, of unlawful interference in the election process by electoral commission members, undue influence on voter choice, obstruction of observers, and numerous instances of ballot-box stuffing. The Court considers that these types of irregularities, if duly confirmed as having taken place, were indeed potentially capable of thwarting the democratic nature of the elections. The Court further notes that the applicants’ allegations were based on relevant evidence, consisting mainly of statements written and signed by observers who gave first-hand accounts of the alleged irregularities witnessed by them. The Court is also cognisant of the OSCE Report (see paragraph 53 above), which indirectly corroborates the applicants’ claims.", "While this report did not contain any details relating specifically to the applicants’ constituency, it gave a general account of the most frequent problems identified during the election process, which were similar to those alleged by the applicants. 74. Since such a serious and arguable claim has been lodged by the applicants, the respondent State is under an obligation to provide a system for undertaking an effective examination of the applicants’ complaints. Azerbaijani law did indeed provide for a system consisting of electoral commissions at different levels, whose decisions could subsequently be appealed against to the Court of Appeal and then further to the Supreme Court. The applicants duly made use of this system and it remains to be seen whether, in practice, the examination of the applicants’ claims was effective and devoid of arbitrariness.", "75. As for the examination of the applicants’ complaint by the CEC, the Court takes due note, at the outset, of the applicants’ argument that the electoral commissions, in general, lacked impartiality owing to their structural composition. In particular, one-third of the members of each commission at all levels, including the CEC, were nominated by or on behalf of the parliamentary-majority party. In addition, another member, nominally representing independent members of parliament formally unaffiliated with any political party, was appointed “in agreement” with the majority party. Thus, seven out of eighteen CEC members, four out of nine members of each ConEC, and three out of six members of each PEC were either directly or indirectly appointed by the ruling party.", "In addition, chairmen of all commissions at all levels were appointed from among the members nominated by the ruling party. Pro-ruling-party forces thus had a relative majority vis-à-vis the representatives of any other political force in electoral commissions at every level, including the CEC which examined the applicants’ complaint in the present case. While, at least at CEC level, this majority was not sufficient to automatically secure the qualified majority of at least two-thirds of the attendant members’ votes required for a decision (see paragraph 35 above), the Court takes note of the reports that commission members appointed by theoretically “independent” sections of the parliament or some small parties tended, in reality, to vote in line with the governing party (see paragraph 54 above). 76. Both the OSCE/ODIHR and the Venice Commission have opined that the above-mentioned structural composition of electoral commissions gave rise, in practice, to the domination of the election administration by pro-government forces and gave them a decisive majority in all commissions.", "Both the OSCE/ODIHR and the Venice Commission repeatedly recommended that the existing formula be revised in a manner which would eliminate such domination by pro-government forces; however, this recommendation has not so far been addressed. 77. The above assessment and recommendations must be taken seriously in the context of elections in Azerbaijan, which have previously been assessed by reputable international observers as falling short of a number of democratic standards. In this connection, it should be noted that the Court itself has examined various election-related issues in a number of cases against Azerbaijan that have involved arbitrary decisions by electoral commissions in relation to opposition-oriented candidates (see, among others, Namat Aliyev, cited above; Kerimova v. Azerbaijan, no. 20799/06, 30 September 2010; Mammadov v. Azerbaijan (no.", "2), no. 4641/06, 10 January 2012; Hajili v. Azerbaijan, no. 6984/06, 10 January 2012; Khanhuseyn Aliyev v. Azerbaijan, no. 19554/06, 21 February 2012; and Karimov v. Azerbaijan, no. 12535/06, 25 September 2014).", "78. Although there can be no ideal or uniform system guaranteeing checks and balances between the different State powers or political forces within a body of electoral administration, the Court shares the view that the proportion of pro-ruling-party members in all electoral commissions in Azerbaijan, including the CEC, is currently particularly high (compare, mutatis mutandis, Georgian Labour Party, cited above, § 106). The Court reiterates that, ultimately, the raison d’être of an electoral commission is to ensure the effective administration of free and fair voting in an impartial manner, which is achievable by virtue of a structural composition that guarantees its independence and impartiality but which would become impossible to achieve if the commission were to become another forum for political struggle between various political forces (ibid., § 108). 79. However, the Court considers that the present case, in isolation, does not require it to determine whether or not the method actually implemented for the structuring of the Azerbaijani electoral commissions ‒ and in particular the CEC ‒ was in itself compatible with the respondent State’s undertaking under Article 3 of Protocol No.", "1. Nevertheless, having regard to the above considerations in the context of electoral complaints lodged by opposition candidates in general, the Court finds that the method in question was one of the systemic factors contributing to the ineffectiveness of the examination by the CEC of the applicants’ election-related complaint in the present case. It falls to the Committee of Ministers to supervise, in the light of the information provided by the respondent State, the execution of the Court’s judgment and to follow up on the implementation of general measures and evolution of the system of electoral administration in line with the Convention requirements. In this connection, the Court considers that an effort by the respondent State envisioning a reform of the structural composition of the electoral commissions should be encouraged with the aim of improving the effectiveness of examination of individual election‑related complaints. 80.", "Turning to the manner in which the applicants’ particular case was examined, the Court finds, for the following reasons, that the material in the case file and the Government’s submissions do not demonstrate that an adequate and comprehensive assessment of evidence was carried out by the CEC or that any genuine effort was made to determine the validity of the applicants’ claims. 81. In particular, the Court observes that, despite the requirement of Article 112-1.7 of the Electoral Code (see paragraph 45 above) and the applicants’ express request to this effect, the applicants’ presence at the CEC hearing was not ensured, thus depriving them of the possibility of arguing their position and challenging the opinion of the CEC expert group member, R.I. In fact, it appears that the CEC may not even have held a genuine hearing, as in practice it routinely adopted an expert group member’s opinion unquestioningly, without discussing the substance of the complaints (see, in this respect, the OSCE Report at paragraph 53 above). 82.", "It does not appear that the CEC gave adequate consideration to the observers’ statements concerning the alleged irregularities that were submitted by the applicants as evidence in support of their complaint. None of those observers was called to be questioned and no further investigation was carried out in respect of their allegations. In particular, many of the observers claimed that there had been serious discrepancies between the numbers of voters attending various polling stations and the numbers of ballots found inside the ballot boxes. However, it has not been shown that the CEC expert group took any steps to actually investigate this matter. One obvious step would have been to review the attendance lists in the affected polling stations and examine whether the relevant numbers were consistent.", "Instead, the CEC presented somewhat dubious reasons for discrediting those statements. For example, the Court notes that the CEC described the statement made by three observers in Polling Station no. 25 as their “subjective opinions” (see paragraph 24 above), when it was clear that the statement in question did not contain any opinions but was rather a first‑hand observation including specific factual information requiring further investigation as to its veracity (see paragraph 17 above). 83. The CEC referred, in general terms, to statements collected from some other observers denying any irregularities and argued that those statements refuted the applicants’ allegations.", "However, these purported statements were described by the CEC in a very vague manner and none was made available to the applicants or produced by the Government before the Court. No reasonable or convincing explanation was given by the CEC as to why the statements by those “other observers” were given more weight or considered more reliable than the evidence of a similar type presented by the applicants, which also consisted of observers’ statements. 84. Moreover, the CEC referred to some explanations by unnamed PEC members denying any irregularities (see paragraph 25 above). Given that confirmation of the applicants’ allegations could potentially entail responsibility on the part of the PEC officials in question for election irregularities, it is not surprising that they would deny any wrongdoing.", "For this reason, the Court is not convinced that in the present case those explanations could be particularly helpful in determining the factual accuracy of the applicants’ claims (compare Namat Aliyev, cited above, § 83). 85. The above shortcomings were not remedied by the domestic courts either. The Baku Court of Appeal merely reiterated and upheld the CEC’s findings, and copied its reasoning, without conducting an independent examination of the arguments raised or addressing the applicants’ complaints about the shortcomings in the CEC procedure. 86.", "As for the appeal before the Supreme Court, it was deprived of all effectiveness by the action of the Constitutional Court in approving the country-wide election results while the period afforded by law to the applicants for lodging an appeal with the Supreme Court was still pending. By the Supreme Court’s own admission, it was no longer able to take any decision affecting the election results in the applicant’s constituency because they had already been approved as final by the Constitutional Court. The upshot of this situation was that the domestic legal system allowed the Constitutional Court to finalise the entire election process, including the election results, while the applicants were still in the process of seeking redress for alleged breaches of their electoral rights in their constituency through the existing appeal system ‒ which was specifically designed for dealing with electoral disputes. The Constitutional Court’s decision deprived the remedy available to the applicants of all prospect of success and rendered the entire system for examining individual election‑related complaints futile and illusory in the applicants’ case. Moreover, despite knowing of a number of pending individual complaints challenging the fairness of the election procedure and the lawfulness of the election results in particular constituencies, the Constitutional Court prematurely confirmed the country-wide election results as lawful, as if the outcomes of the pending proceedings were not important for the comprehensive assessment of the parliamentary elections as a whole.", "87. Based on the above, the Court finds that the conduct of the electoral commissions and courts ‒ including the Constitutional Court ‒ in the present case, and their respective decisions, reveal an apparent lack of any genuine concern for combatting the alleged instances of electoral fraud and protecting the applicants’ right to stand for election. The applicants’ serious and arguable complaints concerning election irregularities were not effectively addressed at domestic level. The avenue of redress available to and pursued by the applicants was rendered futile by the Constitutional Court’s premature confirmation of the election results as final while the applicants’ appeal was still pending. 88.", "There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 89. In conjunction with the above complaint, the applicants complained that candidates nominated by opposition parties, like themselves, had been discriminated against ‒ by various means ‒ by all the State executive authorities, electoral commissions, courts and Government-controlled media throughout the entire electoral process.", "They relied on Article 14, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 90. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 91. However, having regard to its above finding in relation to Article 3 of Protocol No. 1, the Court considers that it is not necessary to examine whether in this case there has been a violation of Article 14.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High 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 93.", "The applicants claimed 30,000 euros (EUR) each in respect of various expenses related to their electoral campaign. 94. The Government argued that there was no causal link between the alleged violation and the damage claimed. 95. The Court notes that the applicants’ claims are not itemised and are not supported by any evidence.", "In any event, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 2. Non-pecuniary damage 96. The applicants claimed EUR 100,000 each in respect of non‑pecuniary damage caused by the infringement of their electoral rights. 97.", "The Government argued that the amounts claimed were excessive and pointed out that in earlier comparable cases against Azerbaijan, awards in respect of non-pecuniary damage had not exceeded EUR 7,500. 98. Ruling on an equitable basis, the Court awards each applicant the sum of EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 99.", "The applicants also claimed, jointly, EUR 2,000 for legal fees incurred in the domestic proceedings and the proceedings before the Court. In support of this claim, they submitted their contract with Mr H. Hasanov, their lawyer. 100. The Government noted that, even though the above-mentioned contract stipulated legal fees for representation in the domestic proceedings, Mr H. Hasanov had not in fact represented the applicants in the domestic proceedings but only before the Court. The Government therefore asked the Court to reject that part of the claim relating to the legal fees incurred in the domestic proceedings.", "101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that it has not been demonstrated that Mr H. Hasanov represented the applicants in the domestic proceedings. Having regard to the documents in its possession, the Court rejects the part of the claim relating to costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 850 to all three applicants jointly for the proceedings before the Court. C. Default interest 102.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 3.", "Holds that there is no need to examine the complaint under Article 14 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani new manats at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage; (ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, to all three applicants jointly, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachAndrás SajóDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF VLASOV AND BENYASH v. RUSSIA (Applications nos. 51279/09 and 32098/13) JUDGMENT STRASBOURG 20 September 2016 FINAL 30/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vlasov and Benyash v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 30 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "51279/09 and 32098/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aleksey Yuryevich Vlasov and Mr Mikhail Mikhaylovich Benyash (“the applicants”), on 10 February 2010 and 21 April 2013 respectively. 2. The first applicant was represented by Mr V. Kuznetsov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged that a restriction placed on their right to leave Russia had not been justified. 4. On 20 November 2014 and 9 July 2015 the above-mentioned complaint was communicated to the Government and the remainder of the applications was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The facts of the case, as submitted by the parties, may be summarised as follows. A. The case of Mr Vlasov 6. The first applicant, Mr Aleksey Yuryevich Vlasov, was born in 1957 and lives in Moscow. 7.", "On 6 October 2008 Mr Vlasov applied to the Federal Migration Service for a travel passport which would allow him to go abroad. 8. On 27 October 2008 the Golovinskiy District Court of Moscow convicted him of smuggling and sentenced him as follows: “... the penalty in the form of three years’ imprisonment is not to be enforced and is to be considered conditional with a three years’ probationary period. To require Mr Alexey Vlasov to report twice a month during the probationary period to the authority in charge of execution of conditional sentences, and to inform [that authority] of any change of residence ...” 9. On 11 November 2008 his application for a travel passport was refused by reference to the fact that he had been given a suspended three‑year sentence whose period of suspension had not yet expired.", "10. The applicant Mr Vlasov applied for judicial review of the refusal. 11. On 3 June 2009 the Butyrskiy District Court of Moscow upheld the refusal as lawful, finding as follows: “The argument by Mr Vlasov to the effect that the Golovinskiy District Court’s judgment of 27 October 2008 contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving Russia and which was not, in the claimant’s view, subject to expansive interpretation by State officials, does not contradict section 15(4) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences. A person who is given a suspended sentence is a convicted offender serving a sentence, and may be relieved from punishment only after the period of suspension has expired.", "Mr Vlasov’s period of suspension expires on 14 January 2012 and after its expiry Mr Vlasov’s criminal conviction will be spent in accordance with Article 86 of the Criminal Code. Until that time Mr Vlasov is an offender serving a sentence, which is a ground for restricting his right to leave for abroad.” 12. On 18 August 2009 the Moscow City Court rejected an appeal against the District Court’s judgment. It held: “The arguments that Mr Vlasov was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within the Russian Federation, whereas he needed to take care of his business interests and perform his duties abroad, are not grounds for setting aside the correct judgment [of the first-instance court].” B. The case of Mr Benyash 13.", "The second applicant, Mr Mikhail Mikhaylovich Benyash, was born in 1977 and lives in Sochi. 14. On 31 August 2011 the Tsentralnyy District Court of Sochi convicted Mr Benyash of extortion and sentenced him to three years’ imprisonment, suspended for three years. He was released in the courtroom. On 12 October 2011 the Krasnodar Regional Court upheld the conviction on appeal.", "15. On 5 December 2011 the Federal Migration Service refused Mr Benyash’s application for a travel passport, noting that he had been arrested on 1 September 2010 and that, according to the available information, the criminal proceedings against him were still pending. 16. The applicant Mr Benyash applied for judicial review of the refusal. 17.", "On 28 June 2012 the Tsentralnyy District Court of Sochi upheld the refusal as lawful: “...for the time being the conviction of 31 August 2011 is not yet spent, Mr Benyash is a convicted offender, and, accordingly, the refusal [of travel documents] does not violate his rights”. 18. On 29 November 2012 the Krasnodar Regional Court rejected the appeal, endorsing the reasoning of the District Court. 19. On 11 April 2013 the Regional Court refused him leave to appeal to the cassation instance.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 20. The Entry and Exit Procedures Act (Law no. 114-FZ of 15 August 1996) provides: Section 2 “The right of a Russian citizen to leave the Russian Federation may be restricted only on the grounds listed in this Act and in accordance with the procedure set out therein.” Section 15 “The right of a Russian citizen to leave the Russian Federation may be temporarily restricted if ... (4) he has been convicted of an offence, – up until the penalty has been enforced or until the individual has been relieved from serving the penalty.” 21. The Russian Criminal Code provides: Article 73.", "Suspended sentence “1. If, having decided on a penalty not exceeding ... eight years’ imprisonment, the court considers that the offender may be corrected without serving the sentence, it may declare the sentence to be a suspended one ... 5. Taking into account the offender’s age, work capacity and state of health, the court may supplement a suspended sentence with a requirement to abide by certain restrictions: to abstain from changing the place of residence, work or study without prior notification to the competent State authority in charge of probation, to abstain from visiting certain places ... The court may impose other restrictions conducive to the rehabilitation of the offender.” Article 86. Criminal record “1.", "A convicted offender shall be considered to have a criminal record from the day the conviction becomes final and until the day the criminal record is cancelled or becomes spent ... 2. An individual who has been exempted from punishment shall have no criminal record. 3. A criminal record is cancelled – (a) in case of a suspended sentence, on expiry of the period of suspension ...” 22. On 8 December 2009 the Constitutional Court dismissed a constitutional challenge to section 15(4) of the Entry and Exit Procedures Act brought by two claimants who had been refused travel documents (judgment no.", "19-P). The first claimant had been given a suspended sentence and the second claimant had been released on parole on condition that he found employment and abstained from changing his place of residence without notifying the probation authority. The Constitutional Court held that enforcement of final convictions was a constitutionally important objective, as a failure to enforce them would undermine the rights of others and the authority of the judiciary. A suspended sentence does not mean that the convicted offender has been exempted from punishment: he or she is on probation during the specified period of time and may be subject to additional restrictions during that period (Articles 73 and 86(3) of the Criminal Code). The Constitutional Court inferred therefrom that the restriction on the right to leave the country applicable to those who received a suspended sentence was a “temporary measure designed to secure the enforcement of a criminal conviction”.", "Similarly, as regards the situation of individuals released on parole, the Constitutional Court considered that a temporary restriction on their right to leave Russia was a safeguard necessary to secure the full enforcement of the sentence. Since the probation authorities only have jurisdiction within the Russian territory, they can only exercise effective control over the conduct of convicted offenders on probation within Russia. A convicted offender’s departure from Russia would remove them from the sphere of such control, undermining the objectives of the punishment and negating the established procedure for enforcement of the sentence as a means of rehabilitating offenders. The Constitutional Court finally pointed out that federal law-makers should be able to determine situations in which the competent authority, in certain extraordinary circumstances and having regard to the principle of humanity and valid and objective reasons, could authorise the convicted offenders to leave the Russian Federation. THE LAW I. JOINDER OF THE APPLICATIONS 23.", "Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 24. The applicants complained that the refusal to issue them with travel documents which would have allowed them to leave Russia had been in breach of Article 2 of Protocol No.", "4 to the Convention, the relevant part of which reads as follows: “2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 26.", "The applicants pointed out that section 15(4) of the Entry and Exit Procedures Act merely provided for the possibility of the right to leave Russia being restricted, rather than for actual restriction. The applicant Mr Vlasov emphasised that on 27 October 2008 the District Court had explicitly decided not to enforce the penalty, without imposing any other restriction apart from a requirement to report any changes in his place of residence. This requirement could not have been interpreted as including a ban on travel abroad. The applicant Mr Benyash submitted that the obligation to report twice a month to the probation authority, which had been required of him, was not incompatible with short-term travel abroad for work, tourism or medical treatment. If he were to breach the conditions of his sentence by failing to report, the probation could have been revoked and his name would then have been placed on the list of fugitives from justice.", "He pointed out that the Government’s arguments were of a general, non-specific nature, and that they failed to indicate any public interest which might have been impaired in the event of his leaving abroad. 27. The Government acknowledged that the refusal of a travel document amounted to interference with the applicants’ right to leave Russia. The interference was based on section 15(4) of the Entry and Exit Procedures Act and pursued the legitimate aim of securing the enforcement of a criminal conviction and ensuring control over the applicants’ conduct by the probation authorities (the Government cited the Constitutional Court judgment of 8 December 2009 extensively, see paragraph 22 above). As to the necessity for the interference in a democratic society, the Government pointed out that the impugned measure responded to a pressing social need, that it was limited in time and could not be automatically extended.", "In their applications for travel documents and the ensuing judicial proceedings, the applicants did not refer to sufficiently specific, objective and valid grounds for leaving Russia. As regards the applicant Mr Vlasov, the Government submitted that he had been twice convicted of smuggling, that is to say of an activity connected with crossing the State border, and that there was accordingly a risk of reoffending. The restriction on his right to leave Russia was of a short duration, it applied in the period between 14 January 2009 and 20 March 2010, a total of one year and four months. The applicant Mr Benyash was convicted of a serious offence and subjected to certain restrictions for the entire duration of the probation period, including the obligation to report twice a month to the competent body. If he had left Russia, enforcing that obligation would have become impossible.", "2. The Court’s assessment 28. The Court reiterates that Article 2 § 2 of Protocol No. 4 to the Convention guarantees to any person the right to leave any country for any other country of the person’s choice to which he or she may be admitted. A measure by means of which an individual is denied the use of a document which, had he so wished, would have permitted him to leave the country, amounts to an interference within the meaning of Article 2 of Protocol No.", "4 and must meet the requirements of paragraph 3 of that Article (see Bartik v. Russia, no. 55565/00, § 36, ECHR 2006‑XV, and Napijalo v. Croatia, no. 66485/01, § 68, 13 November 2003). 29. The decisions rejecting the applicants’ requests for travel passports clearly amounted to such a measure.", "It must therefore be examined whether they were “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and whether they were “necessary in a democratic society” to achieve such an aim. 30. The Government asserted that section 15(4) of the Entry and Exit Procedures Act furnished a sufficient legal basis for the interference. The applicants contended that section 15 merely provided for the possibility of restricting the right to travel abroad in certain situations and for a certain period of time, without defining the procedural and substantive conditions for its application, and therefore did not meet the “quality of law” requirements.", "The Court, for its part, does not find it necessary to determine whether the measure was “in accordance with law”, as, for the reasons that follow, it considers that it was incompatible with Article 2 of Protocol No. 4 in other respects (see Nalbantski v. Bulgaria, no. 30943/04, § 62, 10 February 2011). 31. The Court is prepared to accept that the measure, which seeks to restrict a convicted and not yet rehabilitated offender from travelling abroad, pursues the legitimate aims of maintenance of public order and prevention of crime.", "The question arises whether the travel ban was “necessary in a democratic society” for achieving those aims (see Kerimli v. Azerbaijan, no. 3967/09, § 49, 16 July 2015). 32. On that point, the Court reiterates that under Article 2 §§ 2 and 3 of Protocol No. 4 the authorities are under an obligation to ensure that a restriction of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate.", "That assessment should normally be subject to review by the courts, since they offer the best guarantees of independence, impartiality and lawfulness of the procedures. The scope of their review should enable them to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see Battista v. Italy, no. 43978/09, § 42, ECHR 2014, and Nalbantski, cited above, § 64, with further references). 33. Admittedly, in certain cases restrictions on the movements of convicted offenders may be justified, for instance by the need to prevent them from re-engaging in criminal conduct.", "Thus, the Court has allowed restrictions on the freedom of movement of individuals suspected of being members of a criminal syndicate (see Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281-A, and Labita v. Italy [GC], no. 26772/95, § 195, ECHR 2000-IV) or of an individual who had been found guilty of a violent offence (see Villa v. Italy, no. 19675/06, §§ 45-50, 20 April 2010). 34.", "However, such restrictions can be justified in a given case only if there are clear indications of a genuine public interest which outweigh the individual’s right to freedom of movement. They must be based on concrete elements which are truly indicative of the continued existence of the risk that such measures seek to forestall. In cases where the travel ban was the consequence of the applicant’s status as a convicted and not yet rehabilitated offender, the Court did not consider that such a general and almost automatic restriction could be regarded as necessary (see Milen Kostov v. Bulgaria, no. 40026/07, § 17, 3 September 2013; Sarkizov and Others v. Bulgaria, nos. 37981/06, 38022/06, 39122/06, and 44278/06, § 67, 17 April 2012; and Nalbantski, cited above, § 66).", "The Court also found a violation of Article 2 of Protocol No. 4 in a case where a travel restriction had been automatically imposed on account of unpaid debts, without examining the applicant’s personal situation or his ability to pay the amounts due (see Battista, cited above, § 44). 35. In the instant case, as in the above-mentioned cases against Bulgaria, the Russian authorities, apart from referring to the applicants’ convictions and lack of rehabilitation, did not give any reasons for refusing them travel passports, without examining their individual situations or explaining the need to impose such a measure on them. They thus failed to carry out the requisite assessment of the proportionality of the restriction of the applicants’ right to travel abroad and to provide justification for it (compare Milen Kostov, § 17, and Nalbantski, § 67, both cited above).", "In particular, they gave no explanation why they believed that the travel ban was conducive to the applicants’ rehabilitation or why a short-term absence on a trip abroad should have prevented Mr Benyash’s from complying with the obligation to report twice a month to the probation authority. The Court reiterates that the mere fact that an individual has been criminally convicted and has not yet been rehabilitated cannot justify the imposition of restrictions on his or her freedom to leave his or her country (see Nalbantski, cited above, § 67). 36. In the subsequent judicial review proceedings the Russian courts only concerned themselves with the formal lawfulness of the ban. Once satisfied that the prerequisites under section 15(4), namely conviction and lack of rehabilitation, were in place, the courts pronounced the travel ban to be lawful (see paragraphs 11, 12 and 17 above).", "They did not make any genuine attempt to consider the specific reasons advanced by Mr Vlasov to justify the need to go abroad (see the Moscow City Court’s decision in paragraph 12 above), or to assess whether the restrictions on the applicants’ right to leave Russia were a proportionate measure and whether they struck a fair balance between the public interest and the applicants’ right to freedom of movement. Such a rigid and automatic approach cannot be reconciled with the obligation imposed by Article 2 of Protocol No. 4 to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances (see Nalbantski, Sarkizov and Others and Milen Kostov, all cited above). In these circumstances, in the absence of reasons and proper judicial review of the question of proportionality by the domestic authorities, the Court cannot speculate as to whether or not there were grounds that could have justified the travel ban. The alleged risk of reoffending in the case of Mr Vlasov, to which the Government referred, was not mentioned in any form in the domestic decisions and was cited for the first time in the proceedings before this Court.", "37. In the light of the foregoing, the Court does not consider that the automatic imposition of a travel ban without any regard to the individual circumstances of the person concerned can be described as “necessary in a democratic society”. 38. There has accordingly been a violation of Article 2 of Protocol No. 4 to the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant Mr Vlasov claimed 13,620 euros (EUR) in respect of pecuniary damage representing his loss of earnings in the period until 10 June 2010.", "The applicants further claimed EUR 1,800 and 12,000 respectively for non-pecuniary damage. 41. The Government submitted that the alleged loss of earnings was not related to the violation in the instant case and was not supported with any documents (they referred to S.C. Prodcomexim SRL v. Romania (no. 2), no. 31760/06, § 53, 6 July 2010; Patrikova v. Bulgaria, no.", "71835/01, §§ 108-09, 4 March 2010; and Marini v. Albania, no. 3738/02, § 190, 18 December 2007). They further submitted that the second applicant’s claim in respect of non-pecuniary damage was excessive in the light of the Court’s awards in similar cases (here they referred to Battista and Bartik, both cited above, and also Miażdżyk v. Poland, no. 23592/07, 24 January 2012). 42.", "The Court does not discern any causal link between the violation found and Mr Vlasov’s claim regarding the lost earnings; it therefore rejects this claim. It further awards Mr Vlasov the full amount claimed, namely EUR 1,800, and Mr Benyash EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 43. The applicant Mr Vlasov also claimed EUR 150 in respect of postal expenses.", "44. The Government pointed out that postal receipts were produced only for the amount of EUR 100. 45. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award Mr Vlasov the sum of EUR 150, plus any tax that may be chargeable to him. C. Default interest 46.", "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 2 of Protocol No.", "4 to the Convention; 4. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) to Mr Vlasov EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to Mr Benyash EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) to Mr Vlasov EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable to him, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López Guerra Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF JOKSIMOVIĆ v. SERBIA (Application no. 37929/10) JUDGMENT STRASBOURG 7 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Joksimović v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37929/10) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Zoran Joksimović (“the applicant”), on 1 July 2010.", "2. The Serbian Government (“the Government”) were represented by their former Agent, Ms V. Rodić, who was more recently substituted by their current Agent, Ms N. Plavšić. 3. On 23 October 2014 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. 4.", "The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Belgrade. 6.", "On 15 June 2004 the applicant was injured in a traffic accident. He suffered severe serious injuries. An investigation into this incident was initiated in November 2004 and terminated in May 2005, with no criminal charges being brought. 7. On 10 June 2005 the applicant lodged a civil claim for non-pecuniary damages with the Second Municipal Court in Belgrade against the Belgrade City’s Transportation Company (Gradsko saobraċajno preduzeċe Beograd).", "8. On 27 December 2007 the Second Municipal Court ruled in the applicant’s favour. On 3 July 2008 the District Court quashed the decision and remitted the case to the first instance. 9. On 23 October 2009 the Second Municipal Court adopted a partial decision (delimičnu presudu) against which the applicant and the defendant appealed on 7 December 2009 and 10 December 2009, respectively.", "10. On 30 September 2010 the Court of Appeals in Belgrade quashed the decision and remitted the case to the Court of First Instance for a re-trial. 11. In the meantime, on 22 December 2009, the applicant lodged an appeal with the Constitutional Court complaining under Article 32 of the Constitution (a provision which corresponds to Article 6 of the Convention) about the overall fairness of domestic proceedings and their length. The Constitutional Court’s decision was rendered on 4 November 2010.", "No violation in respect of the applicant’s complaints was found. 12. Due to applicant’s change to the value of the dispute (vrednost spora), on 31 October 2010 the Court of First Instance ruled that it had no further jurisdiction to examine the applicant’s complaint. The case was then sent to the High Court in Belgrade. 13.", "On 20 June 2013 the High Court adopted a partial judgment against which the applicant and the defendant appealed to the Court of Appeals in Belgrade. 14. On 6 June 2014 the Court of Appeals partly quashed the impugned judgment. 15. It would appear that the case is still pending before the High Court.", "16. Additionally, on 28 October 2014 the applicant lodged a new submission with the Constitutionals Court concerning, inter alia, the length of the impugned proceedings. It would appear from the facts of the case that the Constitutional Court has not yet responded. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which 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 18. The Government submitted that the applicant had failed to properly exhaust domestic remedies. They claimed that the constitutional appeal was, in principle, an effective remedy but that the applicant had failed to make proper use of it. Notably, the applicant had failed to substantiate his claims. 19.", "The applicant contested this and maintained that he had complained before the Constitutional Court in a proper manner. 20. As already held by the Court the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). In the present case, the applicant had, in his constitutional appeal, relied on Article 32 of the Constitution which corresponds to Article 6 of the Convention and had complained about the assessment of evidence and the length of impugned proceedings.", "21. In Court’s view, by doing so the applicant provided the national authorities with the opportunity to properly address his complaints, an opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention (see Muršić v. Croatia [GC], no. 7334/13, § 72, ECHR 2016). 22. The Court thus finds that the applicant properly exhausted domestic remedies.", "The Government’s preliminary objection must therefore be dismissed. 23. 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 24. The applicant reaffirmed his complaints. 25. The Government reiterated that there had been no violation of Article 6 of the Convention since there were no periods of judicial inactivity and even if there were some they could only be attributed to the applicant.", "In any event, the overall length did not appear to be excessive. 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the 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). 27.", "While it is true that proceedings in the present case did not last too long until 2010, when the applicant lodged his constitutional appeal, the Court’s notes that the impugned proceedings are still pending before domestic authorities. The proceedings in the present case have, thus, been lasting twelve years at two levels of jurisdiction which is incompatible with the requirements set out in Article 6 of the Convention. 28. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 29.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 30. There has accordingly been a breach of Article 6 § 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 32. The applicant claimed 235,000 euros (EUR) in respect of pecuniary and EUR 73,000 in respect of non-pecuniary damage. 33.", "The Government contested these claims. 34. 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 3,600 in respect of non-pecuniary damage. B.", "Costs and expenses 35. The applicant made a general claim concerning costs and expenses incurred before the Court and left it to the Court to decide on the exact amount. 36. The Government did not express an opinion on the matter. 37.", "Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 100 under this head. C. Default interest 38. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the length of civil proceedings admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,600 (three thousands six hundreds euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF FINKOV v. RUSSIA (Application no. 27440/03) JUDGMENT STRASBOURG 8 October 2009 FINAL 08/01/2010 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 Finkov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27440/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yevgeniy Valentinovich Finkov (“the applicant”), on 5 February 2001, 1 August 2003, 8 January 2004 and 27 January 2006. 2. The Russian Government (“the Government”) were represented by their Agents, Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights; Mr Savenkov, former acting Representative of the Russian Federation at the European Court of Human Rights; and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 13 November 2007 the President of the First Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1952 and lives in Rostov-on-Don. 5.", "In 1986 the applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently granted Category 2 disability status and became entitled to various social benefits. The subjects of the present case are the disputes concerning these benefits. A. Proceedings in 1996 6.", "In 1996 the applicant lodged a complaint before the Proletarskiy District Court of Rostov-on-Don alleging a failure of the authorities to comply with the pension law. On 24 July 1996 the District Court upheld the complaint, noting the authorities' unlawful inactivity. B. Proceedings for compensation for health damage and food allowance. 1.", "Judgment of 18 November 1997 7. On 18 November 1997 the Proletarskiy District Court upheld the applicant's action against the authorities and awarded him monthly payments of 2,495,023 Russian roubles (RUB) in compensation for health damage and as food allowance. The District Court also awarded him a lump sum of RUB 47,314,000 in outstanding compensation. The judgment was not appealed against and became final. The authorities did not pay the applicant the lump sum, and made the monthly payments only until September 2000.", "2. Quashing of the judgment of 18 November 1997 and ensuing proceedings 8. On 15 March 2001 the Presidium of the Rostov Regional Court, by way of supervisory-review proceedings, quashed the judgment of 18 November 1997 and remitted the case for re-examination to the Proletarskiy District Court. 9. The hearings were adjourned on 14 May 2001 and on 7 June 2001 due to the authorities' failure to appear.", "10. The next hearing was fixed for 5 July 2001 when it was again postponed as the applicant had amended his claims. 11. On 17 September 2001 the applicant lodged additional claims. 12.", "On 24 September 2001 the court granted the authorities' request for stay in the proceedings on the grounds that there were pending related proceedings in the Supreme Court of Russia and in the Constitutional Court of Russia. The proceedings in the Constitutional Court had been initiated by the applicant (see para. 60 below). The applicant appealed against the decision to stay the proceedings, to no avail. 13.", "On 24 October 2002 the case was reopened and assigned for hearing for 21 November 2002. 14. On 21 November 2002 the authorities failed to appear and the proceedings were adjourned. 15. On 10 December 2002 the Proletarskiy District Court accepted the applicant's claims in part.", "It ordered that the Social Security Services should pay him a lump sum of RUB 37,992.75 in compensation for health damage, monthly payments of RUB 4,850 and a lump sum of RUB 5,000 in compensation for damage caused by a delay in the payment of monthly benefits. The District Court also noted that the amount of monthly payments was to be index-linked in accordance with the law. The judgment was upheld on appeal and became final on 7 May 2003. 3. Quashing of the judgment of 10 December 2002, as upheld on 7 May 2003, and ensuing proceedings 16.", "In 2003 the authorities, as well as the applicant, requested reopening of the proceedings by way of supervisory review. 17. On 13 November 2003 the Presidium of the Rostov Regional Court quashed the judgments of 10 December 2002 and 7 May 2003 and sent the case for a fresh examination. The Presidium held that the lower court had not calculated the sums of compensation and adjustment of monthly payments in accordance with the relevant law provisions, considering it as mistakes in implementation of substantive, as well as procedural, law. 18.", "On 18 December 2003 the authorities failed to appear in court and the hearing was adjourned. 19. On 23 January 2004 the applicant specified his claim. 20. On 12 February 2004 the case was postponed as the authorities were not properly informed about the hearing.", "21. On 26 February 2004 the authorities failed to appear and the hearing was adjourned. 22. On 4 March 2004 the examination of the case was postponed as the judge was considering another case. 23.", "On 1 April 2004 the case was adjourned because of default in appearance of the applicant. 24. On 22 April 2004 the Proletarskiy District Court dismissed the applicant's action in full. The applicant appealed. However, on 29 April 2004 the District Court adjourned the examination of the appeal because the applicant had only submitted a short version of his appeal statement.", "On 7 June 2004 the Rostov Regional Court quashed the decision of 29 April 2004 as unlawful. 25. The applicant contested the accuracy of the minutes of the hearing of 22 April 2004. On 29 April 2004 the Proletarskiy District Court dismissed the claim without consideration on the merits. The applicant appealed and on 7 July 2004 the Rostov Regional Court quashed the decision of 29 April 2004 and remitted the matter for fresh consideration.", "On 2 September 2004 the applicant's claim concerning the minutes was dismissed on the merits. 26. On 13 October 2004 the Rostov Regional Court, acting on appeal, quashed the judgment of 22 April 2004 and remitted the case for a fresh examination. 27. On 16 November 2004 the case was assigned to examination for 30 November 2004.", "On that date the applicant asked the court to request some documents from the defendant. The hearing was adjourned to 21 December 2004. 28. Upon the applicant's requests the subsequent hearings were adjourned until 16 February 2005. 29.", "On 16 February 2005 the case was adjourned due to the absence of a prosecutor. 30. On 2 March 2005 the case was not tried again due to the applicant's failure to appear. 31. On 24 March 2005 the District Court partly upheld the applicant's action and awarded him a lump sum of RUB 45,919.02 in outstanding compensation for health damage, monthly payments of RUB 3,857.94 in compensation for health damage and RUB 6,000 in compensation for damage caused by a delay in payment of monthly sums.", "Thus, as compared with the quashed final judgment of 18 November 1997, the court awarded a lesser lump sum but higher monthly payments. 32. On 7 July 2005 the Rostov Regional Court upheld the judgment on appeal. 33. As to the enforcement of the judgment, the monthly payments were made regularly and the lump sum was transferred to the applicant's account by 30 November 2005.", "4. Quashing of the judgment of 24 March 2005, as upheld on 7 July 2005, and ensuing proceedings 34. On 15 February 2006 the Proletarskiy District Court of Rostov-on-Don granted the applicant's request and quashed the judgment of 24 March 2005 as upheld on 7 July 2005 due to newly-discovered circumstances. 35. On 28 February 2006 and on 28 March 2006 the applicant unsuccessfully requested suspension of the proceedings as the same claims were considered by another court (see para.", "46 below). 36. On 17 April 2006 the Proletarskiy District Court of Rostov-on-Don discontinued the proceedings as the applicant failed to appear before the court and did not request the case to be tried in his absence. C. Proceedings concerning a delay in enforcement of the judgment of 18 November 1997 37. In August 2000 the applicant lodged an action against the Federal Treasury complaining that the lump sum awarded under the judgment of 18 November 1997 had never been paid to him.", "He sought compensation for pecuniary and non-pecuniary damage. 38. On 14 December 2000 the Leninskiy District Court stayed the proceedings because the President of the Rostov Regional Court had lodged an application for a supervisory review of the judgment of 18 November 1997. 39. The decision of 14 December 2000 was quashed on appeal on 6 March 2001 and the proceedings were resumed.", "40. On 4 June 2003 the Leninskiy District Court disallowed the applicant's action against the Treasury. That decision was quashed on 9 July 2003 and the action was sent to the District Court for an examination on its merits. 41. On 6 October 2003 the Leninskiy District Court dismissed the applicant's action on the ground that the judgment of 18 November 1997 had been quashed by way of supervisory review on 15 March 2001 and that on 10 December 2002 the applicant had obtained another judgment in his favour.", "On 12 November 2003 the Rostov Regional Court upheld the judgment of 6 October 2003. D. First set of proceedings concerning indexation of monthly payments 42. In September 1999 the applicant brought proceedings against authorities demanding adjustment of his monthly payments. 43. On 22 May 2000 the Leninskiy District Court of Rostov-on-Don dismissed the applicant's action.", "The judgment was upheld on appeal and became final on 11 October 2000. 44. On 13 February 2006 the applicant requested the case to be reopened due to newly discovered circumstances. 45. On 30 March 2006 the Leninskiy District Court granted the claim and quashed the judgment of 22 May 2000.", "46. After the resumption of the proceedings the applicant amended his claims several times. Eventually he claimed damages for the delays in payments and failures to adjust them, making the claims similar to those considered in another case (see para. 35 above). 47.", "On 17 January 2007 the Leninskiy District Court granted the applicant's claims in part. It made the relevant adjustments and awarded the applicant compensation for the underpaid sums in the amount of RUB 231,065.39, monthly payments of RUB 7,766.51 and yearly payments of RUB 2,387.32. 48. On 14 May 2007 the Rostov Regional Court upheld the judgment on appeal. 49.", "The monthly payments were made without delay. As to the lump sum, it was received by the applicant in November 2007. E. Second set of proceedings concerning indexation of monthly payments 50. In July 2000 the applicant lodged another action seeking adjustment of his monthly payments to take account of increases of the minimum monthly wage. 51.", "On 27 October 2000 the Leninskiy District Court upheld the action. That judgment was quashed on appeal on 21 August 2002 and the case was remitted for a fresh examination. 52. On 4 October 2002 the District Court dismissed the claims in full. On 25 December 2002 the Rostov Regional Court upheld the judgment.", "F. Proceedings concerning the reduction of monthly payments 53. In September 2000 the authorities, by a unilateral decision, reduced the amount of monthly payments to the applicant. Two months later he lodged an action against the authorities complaining about the reduction and seeking compensation for damage. 54. On 13 December 2000 the Pervomayskiy District Court of Rostov‑on-Don held that the authorities the applicant sued were not the proper respondent and disallowed the action against them.", "However, the District Court ordered another authority, the local Social Security Service, to join the proceedings as a respondent party and to resume payments of monthly sums to the applicant in accordance with the judgment of 18 November 1997. 55. On 28 January 2001 the Rostov Regional Court, acting on appeal, upheld the judgment of 13 December 2000 in the part concerning the disallowance but quashed the remaining part of the judgment and sent the matter for a fresh examination. 56. On 15 November 2001, as a result of the re-examination, the District Court dismissed the applicant's claims in full.", "The applicant did not appeal. G. First set of proceedings concerning provision of information 57. The applicant lodged an action before the Pervomayskiy District Court asking for information to be disclosed about local judges who had not been provided with housing premises in accordance with the law. By the final judgment of 19 December 2001 the Rostov Regional Court dismissed the action, noting that the information was confidential. H. Second set of proceedings concerning provision of information 58.", "In 2001 the applicant unsuccessfully asked the authorities to provide him with information concerning the representation of their interests in courts. He complained about the refusal to a court. 59. On 19 December 2001 the Rostov Regional Court, in the final instance, dismissed the complaint, noting that the applicant's rights and freedoms had not been infringed by the refusal. I.", "Complaints to the Constitutional Court of the Russian Federation 60. On 24 January 2001 the applicant brought proceedings before the Constitutional Court of the Russian Federation claiming unconstitutionality of some of the law provisions concerning payments for disability caused by the Chernobyl nuclear disaster. 61. On 19 June 2002 the Constitutional Court found the provisions constitutional, thus rejecting the applicant's claim. At the same time it noted that by these norms the State took an obligation to make the relevant payments within a specified period of time.", "It underlined, with the reference to the practice of the European Court of Human Rights, that when an award is made by a final judgment, it should be enforced without delay. J. Proceedings for revision of the judgment of 15 November 2001 62. The applicant, relying on the decision of 19 June 2002 of the Constitutional Court, asked the Pervomayskiy District Court to review its final judgment of 15 November 2001 due to newly discovered circumstances. 63.", "On 18 February 2002 the District Court dismissed the request. That decision became final on 7 May 2003 when the Rostov Regional Court upheld it on appeal. II. RELEVANT DOMESTIC LAW 64. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.", "65. The relevant domestic law governing the supervisory review procedure in the material time is summed up in the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, §§ 33‑42, 3 May 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF NON-ENFORCEMENT 66. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the judgment of 18 November 1997 in his favour had not been enforced. Insofar as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 67. The Government contested that argument. 68. They argued that this complaint had been incompatible with the Convention ratione temporis in the part concerning non-enforcement of the judgment of 18 November 1997 because the Convention had entered into force in respect of Russia only on 5 May 1998. Besides, the documents concerning the enforcement since 1997 until 1999 had been destroyed and no details of the proceedings were available.", "They noted that the judgment had been executed partially till September 2000 and that after 15 March 2001 there had been no obligation to enforce the judgment as it had been quashed by way of supervisory review. They also mentioned that the applicant had failed to submit the writ of execution to the Ministry of Finance of the Russian Federation. A. Admissibility 69. With regard to the compatibility ratione temporis, the Court notes that on the date of introduction of the complaint concerning non‑enforcement (5 February 2001), the judgment of 18 November 1997 remained unenforced, and the Court is hence competent to examine this complaint (see Grigoryev and Kakaurova v. Russia, no. 13820/04, § 26, 12 April 2007).", "70. 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 71. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). To decide if the delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what was the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "72. As to the period to be taken into consideration, the Government suggested that the period of enforcement should run from the moment when the applicant submitted a writ of execution to a competent authority. 73. The Court notes in this respect that where a judgment is against the State, the State must take the initiative to enforce it (see Akashev v. Russia, no. 30616/05, §§ 21–23, 12 June 2008).", "Accordingly, in respect of the judgment of 18 November 1997, the period started on 5 May 1998, the date when the Convention entered into force in respect of Russia. 74. Consequently, the period of non-enforcement of that judgment lasted no less than two years, 10 months and 11 days, before it was quashed by way of supervisory review on 15 March 2001. 75. Taking into account that the judgment was not difficult to enforce as it required only bank transfers and the applicant did not obstruct the enforcement, this period is sufficient to find a violation of the Convention.", "76. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF SUPERVISORY REVIEW 77. In the letter of 8 January 2004 the applicant complained under Article 6 of the Convention that the judgment of 10 December 2002, as upheld on 7 May 2003, had been quashed on a supervisory review on 13 November 2003. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (cited above). 78.", "The Government contested that argument. 79. They argued, inter alia, that the supervisory review had been compatible with the Convention because it had been lawful under domestic law and had been intended to correct mistakes in implementation of law. The reasons cited by the supervisory-review court had justified the quashing. In fact, the new judgment of 24 March 2005, made after the review, was more favourable to the applicant that the quashed one.", "A. Admissibility 80. 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 81. 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 (see Ryabykh v. Russia, no. 52854/99, §§ 51–52, ECHR 2003‑IX). To answer this complaint the Court will hence have to determine if the grounds for the quashing of the applicant's judgment fell within this exception (see Protsenko v. Russia, no.", "13151/04, § 29, 31 July 2008). 82. In the case at hand, none of the grounds cited by the Presidium of the Rostov Regional Court were fundamental (see para. 17 above). All of these grounds concerned different interpretation of the substantive, not procedural, law, which cannot be considered as an exceptional circumstance warranting the quashing of a binding and enforceable judgment and a reopening of the proceedings on the applicant's claims (see Kot v. Russia, no.", "20887/03, § 29, 18 January 2007). 83. The Government's argument that the judgment of 24 March 2005 was more favourable to the applicant than the judgment of 10 December 2002 is not convincing. Indeed, in situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III). 84.", "However, in the present case the domestic courts never referred to unlawfulness of the quashing of 13 November 2003 and the subsequent judgments were not intended to correct it. It follows that there was no acknowledgement that the quashing constituted a violation of the Convention. 85. As to the redress, the judgment of 10 December 2002 awarded the applicant RUB 4,850 in monthly payments, whereas the judgment of 24 March 2005 – only RUB 3,857.94 (see paras. 15 and 31 above).", "86. Therefore there was neither acknowledgment nor redress of the alleged violation and the applicant could still claim to be a victim in respect of the quashing. 87. There has accordingly been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LENGTH OF PROCEEDINGS 88. The applicant complained of the length of the proceedings concerning damages. He alleged a violation of Article 6 § 1 of the Convention, which, as far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 89. The Government contested that argument.", "90. The Court notes that the applicant may be understood to complain about four sets of proceedings. One of them concerns compensation for health damage and food allowance (see paras. 7-36 above), two concern adjustment of monthly payments (paras. 42-52) and last one is about compensation for reduction of monthly payments (paras.", "53-56). Though each of them concern the same social benefits, the proceedings were different and were tried by different courts. Therefore the length of each set of proceedings should be separately examined (Gjonbocari and Others v. Albania, no. 10508/02, § 59, 23 October 2007). A. Admissibility 91.", "As to the proceedings for compensation for health damage and food allowance (paras. 7-36) and the first set of proceedings concerning indexation of monthly payments (paras. 42-49), the Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "92. As to the second set of proceedings concerning indexation of monthly payments (paras. 50-52) and the proceedings concerning the reduction of monthly payments (paras. 53-56), the relevant complaints were lodged on 1 August 2003. There is no indication in the submissions that the applicant had not been immediately aware of the final judgments.", "Therefore the complaints were lodged out of time, as more than six months elapsed since the final decisions of the domestic authorities and must be declared inadmissible pursuant to Article 35 §§ 1 and 4. B. Merits 1. General principles 93. The Court firstly considers that the periods during which the domestic courts decided whether or not to re-open the case should be excluded since Article 6 does not apply to such proceedings (see, for example, Markin v. Russia (dec.), no.", "59502/00, 16 September 2004; Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001; Petersen v. Denmark, no. 28288/95, Commission decision of 16 April 1998). Therefore the periods between final judgments and decisions to reopen the proceeding should not be taken into account. 94.", "Secondly, the periods of pure non‑enforcement should not be taken into account in respect of the complaint concerning the length if the Court has already considered these periods when assessing the complaint about the non-enforcement (see Malama v. Greece, no. 43622/98, § 34, ECHR 2001‑II; Androsov v. Russia, no. 63973/00, § 76, 6 October 2005; Alekseyev v. Russia (dec.), no. 5836/05, 13 November 2008; Lukyanchenko v. Ukraine, no. 17327/02, § 33, 15 May 2008; Kabkov v. Russia, no.", "12377/03, § 49, 17 July 2008; and Veretennikov v. Russia, no. 8363/03, § 31, 12 March 2009). 95. The Court finally 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).", "2. Application of the above principles in the present case (a) Proceedings for compensation for health damage and food allowance i. Periods to be taken into account 96. The Court firstly notes that the period before the final judgment of 18 November 1997 cannot be included into the period of length ratione temporis, as the Convention entered into force in respect of Russia only on 5 May 1998. 97.", "The Court further notes that as the period of non-enforcement was already assessed above and should not be included in the length of proceedings (see paras. 74 and 94), the first period to be taken into consideration lasted from 15 March 2001, when the proceedings were reopened by way of supervisory review, until 7 May 2003, when the judgment of 10 December 2002 became final (see paras. 8-15 above). 98. The second period started on 13 November 2003 with the quashing of the final judgment, and lasted until 7 July 2005, the date of another final judgment (see paras.", "16-33 above). 99. The third period began on 15 February 2006, when the proceedings were reopened again, and ended on 17 April 2006 with their discontinuation (see paras. 34-36 above). 100.", "The total length to be assessed is thus three years, 11 months and 16 days. There were three levels of jurisdiction. ii. Reasonableness of the length of proceedings 101. The Government submitted that the length of proceedings in the present case complied with the “reasonable time” requirement of Article 6.", "The proceedings had been factually complex. The applicant had contributed to the delay in the proceedings by submitting additional claims, a request before the Constitutional Court and by his occasional failure to appear for the hearings. The domestic authorities had not been responsible for any important delays in the examination of the case. The hearings had been scheduled regularly; the court had examined the case on the merits several times. 102.", "The applicant maintained his complaint. 103. The Court considers that the case was not particularly difficult to determine. There was no need to hear witnesses or to have expert opinions in the case. There is nothing to suggest that the volume of written evidence was excessive.", "There was no other reason for the hearings to be lengthy. 104. As concerns the applicant's conduct the Court notes that the applicant should not be held responsible for amending his claims and asking to adjourn hearings in order to obtain additional evidence. It has been the Court's constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see Skorobogatova v. Russia, no. 33914/02, § 47, 1 December 2005).", "The Court further considers negligible the delays caused by the applicant's failure to attend several hearings. 105. On the other hand, the applicant was one of those who initiated the proceedings before the Constitutional Court and the supervisory proceedings which led to quashing of the final judgment in 2003. Moreover, the proceedings were reopened on 15 February 2006 upon the applicant's request (see paras. 16, 34, 60 above).", "Thus the periods of the consequent proceedings cannot be attributable on the State, unless they are unreasonably long. 106. As to the authorities' conduct, there were several short delays attributable to them (see paras. 9, 14, 18, 20-22, 29). The overall length of these delays was about six and a half months, which does not seem excessive.", "107. There also was a suspension for about 13 months due to the proceedings in the Constitutional Court. However, they were conducted without any unnecessary delay (see paras. 60 and 61). 108.", "The hearings were scheduled at regular intervals. The courts of three levels of jurisdiction were involved in the applicant's case. The domestic courts examined the merits of the case several times and did not idle (see Antonov v. Russia (dec.), no. 38020/03, 3 November 2005; Kravchuk v. Russia (dec.), no. 72749/01, 1 February 2005; Pronina v. Russia (dec.), no.", "65167/01, 30 June 2005). 109. As to what was at stake for the applicant, the Court observes that the applicant is a partially disabled person (see para. 5 above) and the proceedings concerned compensation for the caused health damage and food allowance. The proceedings were therefore important for the applicant.", "110. Nonetheless, regard being had to all the circumstances of the case, the Court considers that the “reasonable time” requirement has been complied with. 111. Hence there was no violation of Article 6 § 1 in that respect. (b) First set of proceedings concerning indexation of monthly payments i.", "Periods to be taken into account 112. In this case the first period started in September 1999 when the applicant sued the authorities and ended on 11 October 2000 with the first final judgment. 113. The second period began on 30 March 2006 when the court reopened the case due to newly discovered circumstances and ended on 14 May 2007 with another final judgment (see paras. 45-48 above).", "114. The total length is therefore approximately two years and two months. ii. Reasonableness of the length of proceedings 115. The subject of the case was the same as in the proceedings considered above (see para.", "103 above), not particularly difficult. 116. As to the applicant's conduct, the Court notes that it was the applicant who initiated the reopening of the proceedings in 2006. 117. As to the authorities' conduct, there were no considerable periods of inertia attributable to the State.", "The case was heard several times in two instances. 118. As to what was at stake for the applicant, like in the proceedings considered above (see para. 109), the case was important for him as it concerned the adjustment of monthly payments for compensation of his health damage (see paras. 42 and 47 above).", "119. Under these circumstances the period of approximately two years and two months cannot raise an issue under the Convention. Hence there was no violation of Article 6 § 1 in respect of length these proceedings, either. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 120.", "The applicant complained under Article 13 of the Convention that he had no effective domestic remedy against the alleged violations, including, it appears, delayed enforcement of the judgment of 18 November 1997. 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.” A. Admissibility 121. The Court notes that this complaint in respect of non-enforcement of the judgment of 18 November 1997 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.", "122. As to the rest of the complaints under this Article, they should be declared inadmissible. B. Merits 123. The Court reiterates that it earlier concluded that there was no effective domestic remedy in Russia, either preventive or compensatory, that allows for adequate and sufficient redress in the event of violations of the Convention on account of prolonged non-enforcement of judicial decisions delivered against the State or its entities (see Burdov v. Russia (no.", "2), no. 33509/04, § 117, 15 January 2009). 124. The present case contains no element that would alter the above conclusion. Indeed, the applicant was denied redress for non-enforcement of the judgments in his favour at the domestic level (see paras.", "37-41 above). 125. There was accordingly a violation of Article 13 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 126. The applicant also lodged several other complaints concerning the above proceedings, referring to Articles 6, 10, 13, 14 of the Convention and to Article 1 of Protocol No.", "1. 127. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention. VI.", "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 72,000 euros (EUR) in respect of non‑pecuniary damage. 130.", "The Government contested this claim. 131. As to pecuniary damage, there should be no award as there was no relevant claim made by the applicant. 132. As to non-pecuniary damage, the Court considers that the applicant must have suffered distress and frustration resulting from the authorities' failure to enforce the judgment of 18 November 1997 and from the quashing of the final and binding judgment of 10 December 2002, as upheld on 7 May 2003.", "However, the amount claimed appears excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 133. The applicant made no claims under this head.", "Accordingly, the Court will make no award under this head. 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. Declares the complaints concerning the supervisory review proceedings, non-enforcement and length of proceedings admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Articles 6 and 13 of the Convention and of Article 1 of Protocol No. 1 in respect of non-enforcement of the judgment of 18 November 1997; 3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in respect of the quashing by way of supervisory review of the final judgment in the applicant's favour of 10 December 2002, as upheld on 7 May 2003; 4. Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the 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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable 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 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KRESOVIĆ v. CROATIA (Application no. 75545/01) JUDGMENT (Friendly settlement) STRASBOURG 24 June 2004 This judgment is final but it may be subject to editorial revision. In the case of Kresović v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrG.", "Bonello,MrsF. Tulkens,MrsN. Vajić,MrsS. Botoucharova,MrV. Zagrebelsky, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 3 June 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 75545/01) 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 Đuro Kresović (“the applicant”), on 28 May 2001. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Lidija Lukina-Karajković. 3.", "The applicant complained that the enactment of the Civil Obligations (Amendments) Act 1996 violated his right of access to court guaranteed by Article 6 § 1 of the Convention. 4. By a decision of 23 October 2003 the Court declared the applicant’s complaint admissible. 5. In March 2004 the parties submitted formal declarations accepting a friendly settlement of the case.", "THE FACTS 6. The applicant was born in 1937 and lives in Modrino Selo, Croatia. 7. On 9 March 1992 the applicant’s weekend house in Sveti Petar, Croatia, was blown up by unknown perpetrators. 8.", "On 8 March 1999 the applicant instituted civil proceedings before the Biograd na moru Municipal Court (Općinski sud u Biogradu na moru) seeking damages from the Republic of Croatia for his damaged property. 9. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996), the Biograd na moru Municipal Court stayed the proceedings on 4 December 2000. 10.", "Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003), the proceedings resumed on 16 December 2003. THE LAW 11. On 17 March 2004 the Court received the following declaration on the Government’s behalf: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Croatia offer to pay ex gratia EUR 4,500 to Mr Đuro Kresović. This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, converted into the national currency on the date of payment and free of any taxes that may be applicable.", "It will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 12. On 24 March 2004 the Court received the following declaration signed by the applicant: “I note that the Government of Croatia are prepared to pay me ex gratia the sum of EUR 4,500 covering pecuniary and non-pecuniary damage as well as costs and expenses, converted into national currency on the date of payment and free of any taxes that may be applicable, 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 Croatia 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.” 13. The Court takes note of the agreement reached between the parties (Article 39 of the Convention).", "It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 14. Accordingly, the case should be struck out of its list of cases. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2.", "Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 24 June 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF KHASUYEVA v. RUSSIA (Application no. 28159/03) JUDGMENT STRASBOURG 11 June 2009 FINAL 06/11/2009 This judgment may be subject to editorial revision. In the case of Khasuyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou,and Søren Nielsen, Section Registrar, Having deliberated in private on 19 May 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28159/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mrs Zura Abdullayevna Khasuyeva (“the applicant”), on 29 July 2003.", "2. The applicant, who had been granted legal aid, was represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin. 3. The applicant alleged that her son had disappeared after being detained by servicemen in Chechnya on 30 August 2001.", "She complained under Articles 2, 3, 5 and 13. 4. By a decision of 25 September 2008, the Court declared the application partially admissible. 5. The President of the Chamber acceded to the Government’s request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (Rule 33 of Rules of Court).", "6. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1955 and lives in Urus-Martan.", "The applicant is the mother of Abu Khasuyev, who was born in 1978. A. The disappearance of the applicant’s son 1. General background information 8. At the material time the applicant lived with her son, Abu Khasuyev, his wife and his minor daughter.", "Abu Khasuyev worked as a physical training teacher. The family lived in a flat in a two-storey block of flats at 20 Sovetskaya Street, Urus-Martan, Chechnya. The applicant submitted a copy of Abu Khasuyev’s passport with the official registration of his domicile at 20 Sovetskaya Street in Urus-Martan. According to the applicant, houses in the street were renumbered at some point later, after the events, and their address was changed to 18 Sovetskaya Street. According to the Government, at the material time the applicant and her family resided at 18 Sovetskaya Street.", "9. The Russian federal forces had had full control over the town of Urus-Martan since December 1999. Numerous military units were stationed in the town and on its outskirts. The various public bodies, including the town administration, the district military commander’s office and law enforcement agencies, were functioning properly. 10.", "In August 2001 the federal military authorities placed further checkpoints around the town to ensure that all transport going into or out of Urus-Martan passed through those checkpoints. 11. At the time of the events described below one of the checkpoints was located just across the street from the applicant’s block of flats. In the vicinity of the applicant’s building there was another checkpoint of the Russian military forces, the town administration and the Urus-Martan district department of the interior (the ROVD). Several police officers stood watch on the roof of the ROVD round the clock.", "According to the applicant, her house could be clearly seen from the rooftop. The applicant produced a photograph of her street and indicated the location of the checkpoints and the respective administrative buildings. 2. Information submitted by the applicant 12. According to the applicant, on 30 August 2001 she was at work.", "Her son was at home. He was sick and was staying in bed with an intravenous drip. His wife, daughter, and one of the applicant’s sisters were also at home. 13. Around 1 p.m. the applicant’s daughter-in-law was about to leave for a local food market.", "When she opened the door a group of about ten men in camouflage uniforms rushed into the flat. They had machine guns and sniper rifles with silencers (“vintorez”). They spoke unaccented Russian. All but two of them were wearing masks. Those without masks were fair-haired, blue-eyed and had a Slavic appearance.", "The applicant’s relatives thought that the intruders were Russian military servicemen. 14. The intruders did not produce identity papers or any documents to justify their actions, gave no explanations, and quickly searched the flat. 15. The applicant’s sister lost consciousness at the sight of the men.", "The men pointed their machine guns at the applicant’s daughter-in-law and her three-month-old daughter. The applicant’s daughter-in-law heard the intruders enter Abu Khasuyev’s room and order him to lie on the floor. After that she saw the intruders taking her husband outside. He was barefoot, a T-shirt which he was wearing was pulled over his head and his hands were behind his head. 16.", "The applicant’s daughter-in-law asked one of the men without masks why they were arresting Abu Khasuyev and where they were taking him. In response the officer asked her what relation she was to the arrested person, his wife or sister. The applicant’s daughter-in-law replied that she was Abu Khasuyev’s wife, and the man ordered the others not to let her out and to block the flat door. After that they left. The applicant’s daughter-in-law managed to run out into the entrance hall of the block of flats.", "The intruders then blocked the hall’s entrance door from the outside; the applicant’s daughter-in-law could not get out and started screaming. 17. The men took Abu Khasuyev outside and forced him into a white VAZ-2107 (“Zhiguli”) car parked next to the block of flats, a few metres from the checkpoint. According to eyewitnesses, the officers who were on duty at the checkpoint saw what was happening, but made no attempt to interfere. Two intruders placed Abu Khasuyev between them, and another one ordered the driver to go to “the base”.", "One of the intruders stood next to the car, pointing his gun at the gathering crowd, and ordering them to keep away. He shouted that the detainee had a grenade. 18. When the applicant’s daughter-in-law managed to get outside she ran to the white VAZ-2107 car and saw her husband in the car with his hands tied behind his head. He had no grenade.", "A red VAZ-2121 (“Niva”) car with a man in military uniform and a UAZ vehicle (“Tabletka”) with several masked men in camouflage uniforms were parked nearby. All the vehicles had tinted windows and no registration plates. The vehicles then left in a northerly direction. 19. The applicant has had no news of her son since 30 August 2001.", "20. In support of her statement concerning the circumstances of Abu Khasuyev’s abduction the applicant submitted the following documents: a statement by Mrs R.Zh. dated 8 June 2004; a statement by Mrs A.E. dated 14 July 2004; a statement by Mrs A.Kh. dated 20 July 2004; a statement by herself dated 3 July 2005 and a statement by Mr R.D.", "dated 18 July 2005. 3. Information submitted by the Government 21. The Government did not challenge most of the facts as presented by the applicant. They stated that it had been established that “on 30 August 2001, at about 1 p.m., unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted A. Kh.", "Khasuyev from 18 Sovetskaya Street in the town of Urus-Martan, Chechnya”. B. The applicant’s search for Abu Khasuyev 22. Immediately after Abu Khasuyev’s abduction, the applicant’s daughter-in-law found the applicant and informed her about the events. 23.", "On 30 August 2001 the applicant went to the ROVD and submitted a written complaint about her son’s abduction to the head of the ROVD. The officer told her that he was unaware that her son had been taken away. 24. On the same date the applicant went to the military commander’s office; a duty officer informed her that the military commander was away. 25.", "On 31 August 2001 the applicant requested in writing that the military commander, the head of the ROVD, and the head of the Urus-Martan administration assist her in establishing her son’s whereabouts. 26. On 1 September 2001 the applicant spoke to the military commander, General Gadzhiyev. He told her that he had been away from Urus-Martan on 30 August 2001, was unaware of the incident, and invited her to come again on 3 September 2001. 27.", "On 3 September 2001 the applicant again met Mr Gadzhiyev and enquired about her son. The military commander asked her whether she was talking about someone from the two-storey block of flats. The applicant answered in the affirmative and then Mr Gadzhiyev told her that the person in question was not detained in the military commander’s office and had probably been taken to the Chernokozovo detention centre. 28. On the following day the applicant went to Chernokozovo and spoke with the head of the detention centre, who informed her that Abu Khasuyev was not listed among the detainees.", "29. On 20 September 2001 the applicant spoke with the deputy head of the Chechnya Department of the Federal Security Service (the FSB) who assured her that they had not arrested her son and that they were unaware of his whereabouts. He also stated that it was difficult to find out who had detained Abu Khasuyev, as there were a lot of different military units in Urus-Martan. 30. Since then the applicant has repeatedly applied in person and in writing to various public bodies, including prosecutors of various levels, administrative authorities of Chechnya, the ROVD, the Urus-Martan military commander, the Chechnya FSB, the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms, a deputy of the State Duma, and the Russian President.", "She has also addressed herself to the OSCE and various NGOs, including Memorial and the International Committee of the Red Cross. In her letters to the authorities the applicant referred to the circumstances of her son’s abduction and asked for assistance and details of the investigation. She also stated that her son was a school teacher and had never participated in illegal armed groups. Those enquiries mostly remained unanswered, or only formal responses were given by which the respective requests were forwarded to various prosecutors’ offices “for examination”. 31.", "According to the applicant, she and her daughter-in-law also participated in examinations of unidentified corpses found in Chechnya. C. The official investigation into the disappearance of Abu Khasuyev 1. Information submitted by the applicant 32. At some point in October 2001 an investigator from the ROVD visited the applicant’s home and informed her that a search for her son had commenced on 10 October 2001. Then the investigator questioned the applicant, her daughter-in-law and one of the neighbours.", "According to the applicant, the questions related mostly to Abu Khasuyev’s personality rather than to the circumstances of his disappearance. 33. Some time later in October 2001 the applicant was summoned to the ROVD; an investigator, who introduced himself as Sasha, told her that her son was dead. In reply to the applicant’s request for proof, the investigator referred to a certain register in which there was an entry to this effect. Some time later she spoke to an officer from the ROVD, who showed her the register and read out from it that “Khasuyev had been killed”.", "During the ensuing conversation the applicant found out that the investigator had mistakenly been referring to another person. After that the investigator assured her that the search for her son would be continued. 34. On 29 October 2001 the Chechnya FSB informed the applicant that they had not detained Abu Khasuyev, and that they were unable to establish his whereabouts. 35.", "On 12 November 2001 the military prosecutor of the North Caucasus Military Circuit forwarded the applicant’s complaint about her son’s abduction to the military prosecutor of military unit no. 20102. 36. On 22 December 2001 the Urus-Martan district prosecutor’s office (the Urus-Martan prosecutor’s office) opened a criminal investigation into Abu Khasuyev’s disappearance under Article 126 § 1 of the Criminal Code (kidnapping). The file was assigned no.", "25170. 37. On 9 January 2002 the applicant was granted victim status in the criminal case. 38. On 22 February 2002 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators.", "The applicant was informed about this decision on 3 December 2002 (see paragraph 42 below). 39. On 18 April 2002 the Department of Administration of Punishments of the Volgograd Region informed the applicant that Abu Khasuyev had not been detained in their pre-trial detention centres or penitentiary facilities. 40. On 1 July 2002 the Chechnya representative in the State Duma referred the applicant’s complaint that her son had been abducted to the Chechnya prosecutor’s office.", "41. On 2 October 2002 the Department of the Prosecutor General’s office in the Southern Federal Circuit forwarded the applicant’s request for assistance in establishing Abu Khasuyev’s whereabouts to the Chechnya prosecutor’s office for examination. 42. On 3 December 2002 the Chechnya prosecutor’s office informed the applicant that the criminal investigation had been suspended on 22 February 2002, then resumed on 20 November 2002, and that it was currently in progress. 43.", "On 24 March 2003 (in the submitted documents the date is also given as 25 March 2003) the Urus-Martan prosecutor’s office suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was not informed about this decision. 44. On 5 April 2003 the military prosecutor of the United Group Alignment (the UGA) forwarded the applicant’s complaint that her son had been abducted to the military prosecutor of military unit no. 20102.", "On 16 and 22 May 2003 the latter informed the applicant that “[her] request did not contain any information concerning the involvement of military personnel in the abduction of Abu Khasuyev”. 45. On 2 September 2003 the applicant complained to the Urus-Martan district prosecutor that her son had been abducted. In her letter she stated that Abu Khasuyev had been abducted by representatives of law-enforcement agencies, who had arrived in a red VAZ-2121 car and a white VAZ-2107 car with blackened windows and without registration numbers and that her son had been taken away in the white car. Further, the applicant complained that the officers from the military commander’s office who had been on duty that day had failed to stop the abductors.", "The applicant pointed out that she had spoken with the military commander General Gadzhiyev, who had told her that her son had probably been taken to the Chernokozovo detention centre. No response was given to this complaint. 46. On 4 October 2003 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators. 47.", "On 20 January 2004 the investigators informed the applicant that on 4 October 2003 they had suspended the investigation in the criminal case. 48. On 27 April 2004 the Urus-Martan prosecutor’s office rejected the applicant’s request for access to the investigation file, stating that access could be granted only upon completion of the criminal investigation. 49. On 7 June 2004 the investigators informed the applicant that they had suspended the investigation in the criminal case owing to the expiration of the time-limits and failure to establish the identity of the perpetrators.", "50. On 7 August 2004 the applicant requested the Urus-Martan prosecutor’s office to inform her about the progress of the investigation in the criminal case. No response was given to this request. 51. On 15 August 2004 the Urus-Martan prosecutor’s office resumed the investigation in criminal case no.", "25170. The applicant was informed about the decision on the same date. 52. On 3 December 2004 the applicant requested the Urus-Martan prosecutor’s office to inform her of progress in case no. 25170; to question the officers who had been manning the checkpoint located in the vicinity of the applicant’s house and to resume the investigation.", "No response was given to this request. 53. On 15 June 2004 the applicant complained to the Urus-Martan Town Court (“Town Court”) that the investigation in the criminal case was ineffective. She requested the court to order the prosecutor’s office to resume the criminal investigation, carry it out in a thorough and effective manner, take necessary investigative measures, and authorise her access to the investigation file. 54.", "On 16 June 2005 the applicant complained to the Urus-Martan district prosecutor that her son had been abducted by servicemen of the Urus-Martan power structures (силовых структур). In her letter she pointed out that employees of the Urus-Martan district military commander’s office had witnessed the abduction as they had been on watch duty in close proximity to her house. The applicant pointed out that she had already submitted her account to this effect to the investigative authorities but the latter had failed to establish the whereabouts of her abducted son. The applicant complained about the lack of information concerning the investigation and requested to be informed in writing of what measures were being taken by the prosecutor’s office. No response was given to this complaint.", "55. On 29 June 2004 the Town Court allowed the applicant’s complaint in part and ordered the prosecutor’s office to carry out a thorough and effective investigation. As regards the request for access to the investigation file, the court stated that the investigation was still pending and therefore the applicant had no right of access to the file. On 17 August 2004 the Chechnya Supreme Court upheld this decision on appeal. 56.", "On 15 September 2004 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was informed about the decision on the same date. 57. On 21 October 2005 the applicant again complained to the Urus-Martan prosecutor’s office. She stated that she had not received any response to her request of 16 June 2005 and pointed out that the lack of information concerning the criminal proceedings precluded her from appealing against the actions of the prosecutor’s office, which had been procrastinating in the investigation.", "The applicant requested to be informed about the progress of the investigation and asked the authorities to resume the investigation in the criminal case. No response was given to this complaint. 58. On 25 October 2005 the Urus-Martan prosecutor’s office resumed the investigation in the criminal case owing to “the need to carry out a number of investigative actions aimed at solving the crime”. The applicant was informed about this decision on the same date.", "59. On 25 November 2005 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators. The applicant was informed about this decision on the same date. 60. On 19 June 2006 the Urus-Martan prosecutor’s office resumed the investigation in the criminal case.", "The applicant was informed about the decision on the same date. The applicant was not informed about further developments in the criminal case. 2. Information submitted by the Government 61. Referring to the information provided by the Prosecutor General’s office, the Government stated in their initial submission that upon receipt of the applicant’s written complaint about her son’s abduction, on 22 December 2001 the Urus-Martan prosecutor’s office had opened criminal case no.", "25170 under Article 126 of the Criminal Code (kidnapping). At the same time, in their later submission, the Government stated that on 27 October 2001 the district prosecutor’s office opened another investigation into the same events and the criminal case file was assigned no. 25140. The investigation of both criminal cases was joined in one criminal case in December 2006 (see paragraph 75 below). 62.", "According to the Government, the criminal investigation into the abduction of Abu Khasuyev had been suspended on a number of occasions, specifically: on 22 February 2002, 24 March and 4 October 2003, 15 September 2004, 25 November 2005, 19 July 2006 and 12 January 2007, and had been resumed on 20 November 2002, 4 September 2003, 15 August 2004, 25 October 2005, 19 June and 12 December 2006 and 10 April 2008; but it had failed to identify those responsible for the abduction of the applicant’s son. However, the applicant had been duly informed about all suspensions and resumptions of the criminal proceedings. 63. According to the Government, on 9 January 2002 the applicant was granted victim status in criminal case no. 25170 and questioned.", "Nonetheless, in November 2006 the applicant was again granted victim status, this time in criminal case no. 25140, and questioned again (see paragraph 74 below). On both occasions she provided similar statements by describing in detail the circumstances of her son’s abduction. She stated that her son had been abducted by military servicemen, who had arrived in a red VAZ-2121 car, a white VAZ-2107 car, and a UAZ vehicle; that the abductors had spoken unaccented Russian and refused to explain the reasons for her son’s abduction. 64.", "On 6 September 2004 the investigators again questioned the applicant. Her witness statement was similar to the one provided on 9 January 2002. In addition, the applicant stated that although the servicemen who had been manning the checkpoint across the street from her house had witnessed the abduction, they had failed to stop the perpetrators; that the military commander General Gadzhiyev had told her that Abu Khasuyev had been taken to the detention centre in Chernokozovo and that the administration of the detention centre had denied having him as one of their detainees. 65. On 8 September 2004 the investigators questioned the wife of Abu Khasuyev, Mrs R.Zh., who stated that at 1.30 p.m. on 30 August 2001 a group of about ten armed men in camouflage uniform had broken into the flat.", "They spoke unaccented Russian. Abu Khasuyev had been sick and stayed at home that day. The intruders had taken him away without providing any explanations. The men had arrived in a red VAZ-2121 car, a white VAZ-2107 car, and a UAZ vehicle; none of the vehicles had had registration numbers. The witness had seen the intruders forcing her husband into the white VAZ car and the cars driving away in the direction of Grozny.", "66. On 29 October 2005 the investigators again questioned the applicant. She explained that she had nothing to add to the statements she had given previously. 67. The Government further submitted that on 19 June 2006 the district prosecutor had approved a plan of measures to be taken by the investigation into the disappearance of the applicant’s son.", "According to the plan, a number of requests for investigative measures had been issued to various law enforcement bodies; however, those efforts had failed to produce any tangible results. 68. On 20 June 2006 the investigators forwarded a number of requests for information to various detention centres concerning the whereabouts of Abu Khasuyev. According to their replies, the applicant’s son was not detained in any of those centres. 69.", "On 22 June 2006 the investigators questioned Mrs A.Kh., who stated that at about 1 p.m. on 30 August 2001 she had arrived at the applicant’s house. Abu Khasuyev was ill and had stayed at home that day. According to the witness, she had been changing in one of the rooms when two armed men in camouflage uniforms, one of them masked, walked into the room. When Mrs A.Kh. saw the men she fainted.", "When she regained consciousness the intruders had already gone, taking Abu Khasuyev with them. 70. On 28 June 2006 the investigators questioned an officer of the ROVD, Mr R.G., who stated that in October 2002 the applicant had not requested any information from him and that he had not shown to her any registration logs. 71. On 28 June 2006 the investigators also questioned Mr R.D., who stated that at lunchtime on 30 August 2001 he and his friend Mr Kh.O.", "had been walking past the two-storey apartment building at 20 Sovetskaya Street and past the checkpoint situated across from the building when they saw men in military uniforms armed with automatic weapons; two of them were putting a tall young man who was barefoot and had his T-shirt pulled over his head into a white VAZ-2107 car. The third man, who was the driver, had ordered: “To the base, to the base”. Another armed man had been standing next to the car, pointing his machine gun around and yelling that everyone should keep away. The witness and Mr Kh.O. had been standing about five metres away and could observe closely what was happening.", "Another two vehicles had been parked nearby; a military UAZ vehicle had been on the left side of the road and a VAZ-2121 car on the right. After the young man had been placed in the car, all three vehicles had driven away in a northerly direction. 72. According to the Government, on 28 June 2006 the investigators also questioned Mrs A.E., who stated that at about 10 a.m. on 30 August 2001 she had been at home. Suddenly, she had heard screaming from the applicant’s flat and gone to the yard.", "She had seen a group of men armed with automatic weapons taking a young man outside with a T-shirt pulled over his head. Some time later she had found out that this young man was Abu Khasuyev. 73. On 6 July 2006 the investigators conducted a crime scene examination in the applicant’s flat. Nothing was collected from the scene.", "74. On 8 November 2006 the applicant was granted victim status in criminal case no. 25410 and questioned again. The applicant provided a statement similar to the ones she had provided on 9 January 2002 and 6 September 2004. 75.", "On 12 December 2006 the investigators joined the investigation of criminal cases no. 25140 and no. 25170. The joined case file was assigned no. 25170.", "76. On 12 December 2006 the investigators again forwarded a number of requests to various law enforcement agencies asking for assistance in carrying out investigative measures aimed at establishing the whereabouts of Abu Khasuyev and identifying the perpetrators. According to their responses, the efforts made by the agencies in connection with those requests had failed to produce any tangible results. 77. On 14 December 2006 the investigators questioned Mr S.G., who stated that in the evening of 30 August 2001 he had found out that a group of unidentified men armed with automatic weapons had abducted Abu Khasuyev.", "78. On 15 December, 22 December and 27 December 2006, and probably on 25 June 2007 (the date is illegible) the investigators questioned Mrs A.G, Mr L.M. Mr I.I. and Mr M. Sh., each of whom provided a statement similar to that of Mr S.G. 79.", "On 22 June 2007 applicant was questioned again. Her statement was similar to the ones provided on 9 January 2002, 6 September 2004 and 8 November 2006. 80. On 10 April 2008 a supervisory prosecutor from the Chechnya prosecutor’s office ordered the investigators to resume the suspended investigation in the criminal case. The decision stated, inter alia, the following: “...On 12 January 2007 the investigator of the Urus-Martan district prosecutor’s office decided to suspend the investigation in criminal case no.", "25170 for failure to establish the identity of the perpetrators... This decision is unlawful and unsubstantiated, as in violation of Article 208 § 5 of the Criminal Procedure Code the investigation failed to take all possible measures in the absence of the culprits. For instance, the investigation failed to establish or question the witnesses to Abu Khasuyev’s abduction; to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD... during the questioning of Z. Khasuyeva the investigators failed to clarify a number of important circumstances surrounding her son’s abduction and take other possible investigative and operational search measures. The decision to suspend the investigation in the criminal case should be overruled and the case should be returned [for further investigation]...” 81. On the same date the supervising prosecutor issued a decision ordering the investigation to take the following actions in the criminal case: “1.", "To make a plan of the investigative and operational search measures ... 2. To establish the identity of eyewitnesses to Abu Khasuyev’s abduction and question them about the incident. 3. ....to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD about the circumstances of the case; also, to find out what measures they had taken to establish the identity of the armed men who had been driving around in Urus-Martan on 30 August 2001 in a white VAZ-2107 or VAZ-2106 car, red Niva car [VAZ-2121] and a khaki UAZ Tabletka vehicle and had abducted Abu Khasuyev from his house. 4.", "...to question Mr G. Gadzhiyev, the former Urus-Martan district military commander, who, according to Z.Khasuyeva...., knew who had arrested her son Abu Khasuyev and told her that her son had probably been taken to the remand detention centre in Chernokozovo; [the investigators] should establish officers of which law enforcement agency had been manning the checkpoint located across from Z. Khasuyeva’s house... 5...to establish to the owners of the white VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka. 6. To establish which power structures had stationed people in August 2001 in Urus-Martan and to find out whether they used VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka. 7. ....to establish who was on duty at the checkpoint situated across the street from the house of Z. Khasuyeva on 30 August 2001 at about 1 p.m.....; 8.", "...to request from the UGA information concerning special operations on 30 August 2001 in Urus-Martan and to find out whether any military orders to conduct operational-search measures had been issued [by them] to the units stationed [at the time] in Urus-Martan. 9. To request the same information from the Central Archives of the Ministry of Defence. 10. To question again Z. Khasuyeva and find out the following: -which relatives of hers had received information “from unofficial sources” that after the abduction her son Abu Khasuyev had been taken to the Urus-Martan district military commander’s office where he had been detained on the third floor?.....", "11. To question the witnesses.... about the persons Z. Khasuyeva referred to as “unofficial sources of information”... 12. To establish .... the reasons for the failure [to act] by... the officers of the ROVD who.... had been on duty on the roof of the ROVD on 30 August 2001, from where [they] could clearly see the house.... 13. ... to question Mr Kh.O., who on 30 August 2001 was walking down Sovetskaya Street in Urus-Martan with Mr R.D. and saw the abduction of Abu Khasuyev..... 14.", "....to verify whether any information concerning Abu Khasuyev is available in the Main Information Centre of the Chechnya Ministry of the Interior, the Main Informational and Analytical Centre of the Russian Ministry of the Interior and its Data Base... 17. ... if there is sufficient information about the involvement of servicemen of the Russian federal forces ...to forward the case ... under the rules of jurisdiction... to an appropriate military investigating authority...” 82. On 9 June 2008 the supervising prosecutor decided that the investigation in the criminal case should be conducted by a joint investigation group consisting of investigators from the public prosecutor’s office and the military prosecutor’s office. The reasons for this decision were as follows: “...upon examination of the criminal case file it was established that there were sufficient grounds to assume that the crime [the abduction of Abu Khasuyev] had been committed with the participation of servicemen of the Russian federal forces, and this had been confirmed, in particular, by the use of armoured vehicles during the crime and by the carrying out of the special operation...” 83. According to the Government, the investigation into the abduction of Abu Khasuyev was still in progress.", "From the information obtained by the investigation it followed that Abu Khasuyev had not been detained by the Russian federal forces and that no special operations had been carried out in his respect. 3. Documents submitted by the Government 84. After the partial admissibility decision of 25 September 2008, the Court again requested the Government to submit a copy of the investigation file into the disappearance of Abu Khasuyev. 85.", "In response to the Court’s request, the Government submitted a substantial number of documents from the investigation file, comprising two volumes and running to 416 pages. The Government requested the Court to apply Rule 33 § 3 of Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the documentation submitted. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents submitted could be detrimental to the interests of participants in the criminal proceedings. 86. The Government further stated that a copy of the entire investigation file could not be submitted to the Court owing to the absence of any guarantees on the part of the Court of non-disclosure of the secret data contained in the investigation file.", "In this respect the Government referred to Article 161 of the Criminal Procedure Code, since the file contained information concerning the participants in the criminal proceedings. II. RELEVANT DOMESTIC LAW 87. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION A. Arguments of the parties 88. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies as the investigation into the disappearance of Abu Khasuyev was still in progress. They further submitted that the applicant had the right to appeal against the investigators’ decisions to supervising prosecutors or domestic courts.", "89. The applicant contested that objection. She contended that the Government had not indicated which particular domestic remedy she had not availed herself of and further stated that the Government’s argument to the effect that the investigation was pending related to the merits of the present case rather than to the question of its admissibility. B. The Court’s assessment 90.", "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). 91. As regards the Government’s objection concerning the pending criminal investigation, that is criminal law remedies, the Court observes that the applicant complained to the law enforcement authorities after the abduction of her son and that the investigation has been pending since 27 October 2001.", "The applicant and the Government dispute the effectiveness of this investigation. 92. The Court considers that this limb of 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.", "THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties’ arguments 93. The applicant argued that it was beyond reasonable doubt that Abu Khasuyev had been detained by representatives of the Russian federal forces, this fact being confirmed by eyewitness statements. In particular, she stated that the abduction of Abu Khasuyev had been carried out by a large group of Russian-speaking representatives of law enforcement agencies who had been armed and driving the military cars. The applicant’s son had been detained in the daytime, in close proximity to the Russian federal forces’ checkpoint, in the town centre of Urus-Martan, which had been under the full control of the authorities, who nonetheless had failed to take any measures to stop the abduction.", "She further stressed that Abu Khasuyev had been taken away in life-threatening circumstances, given the widespread practice of forced disappearances in Chechnya during the period in question. The applicant thus argued that, in view of the above and given that her son had been missing for almost five years at the time of the submission of the observations, he may be presumed to have been deprived of his life by representatives of the State. 94. The Government argued that the investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the abduction of Abu Khasuyev. They argued therefore that there were no grounds to claim that Abu Khasuyev’s right to life, guaranteed by Article 2 of the Convention, had been breached by representatives of the Russian power structures.", "The Government further claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. B. Article 38 § 1 (a) and consequent inferences drawn by the Court 95. In their observations made before the decision on admissibility, the Government stated that it would be contrary to Article 161 of the Code of Criminal Procedure for them to submit the complete investigation file. After the decision on admissibility of the application the Government provided an update on the progress of the investigation and 416 pages of documents from the file, including copies of the investigators’ decisions, which contained descriptions of the investigative steps that had been taken, and a number of witness statements.", "They argued that other documents from the investigation files could not be submitted and again referred to Article 161 of the Criminal Procedure Code. 96. The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government’s part to submit 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 Timurtaÿ v. Turkey, no. 23531/94, § 66, ECHR 2000-VI). 97.", "The Court recalls notes that in previous cases it has already found a reference to Article 161 of the Criminal Procedural Code insufficient to justify the withholding of key information requested by the Court (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-... (extracts)). It therefore regrets the Government’s position in respect of the remaining documents from the investigation file and does not find that reference to the above-mentioned provision of the national legislation can serve as a basis for withholding documents requested by the Court. 98. At the same time, the Court reiterates that Article 38 § 1 (a) of the Convention is applicable to cases which have been declared admissible.", "It notes that the Government have submitted a large part of the procedural documents from the criminal investigation file, as requested by the Court. These documents contain a detailed description of the investigation and witness statements which have made a significantly contributioned to the examination of the case. As to the remainder, the Court finds that it can draw inferences from the Government’s failure to disclose the entire contents of the file. 99. In view of these inferences and the circumstances of the present case, the Court does not find it necessary to draw separate conclusions under Article 38 § 1 (a) of the Convention.", "C. The Court’s evaluation of the facts 100. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).", "In view of this, and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicant’s allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant’s son can be presumed dead and whether his death can be attributed to the authorities. 101. The applicant alleged that the persons who had taken Abu Khasuyev away on 30 August 2001 and then killed him were State agents. The Government did not dispute any of the factual elements underlying the application and did not provide any other explanation of the events.", "102. The Court notes that the applicant’s version of the events is supported by the witness statements collected by her and by the investigation. The applicant and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation – they had been wearing masks and camouflage uniforms, had been armed with automatic weapons and spoke Russian among themselves and to the residents. They had broken into the applicant’s flat during the daytime, in close proximity to the checkpoint of the Russian federal forces. In her applications to the authorities the applicant consistently maintained that her son had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 45 and 54 above).", "103. The Court finds that the fact that a large group of armed men in uniform in broad daylight, equipped with vehicles, was able to move freely through military roadblocks and to proceed to arrest the applicant’s son at his home in a town area, across the street from a military checkpoint, strongly supports the applicant’s allegation that these were State servicemen. The domestic investigation also accepted factual assumptions as presented by the applicant and took steps to check whether law enforcement bodies were involved in the arrest. The investigation did establish that the military were involved in the abduction of the applicant’s son (see paragraph 82 above), but it does not appear that any further steps were taken to establish exactly which military unit. 104.", "The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 105.", "Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing support from the consistent explanations and accounts contained in the documents submitted by the parties and having regard to the Government’s failure to provide any other plausible explanation of the events in question, the Court considers that Abu Khasuyev was arrested on 30 August 2001 in his flat in Urus-Martan by State servicemen during an unacknowledged security operation. 106. There has been no reliable news of the applicant’s son since 30 August 2001.", "His name has not been found in any official detention facilities’ records. Finally, the Government did not submit any explanation as to what had happened to him after his arrest. 107. The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in Chechnya (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... (extracts); Baysayeva v. Russia, no.", "74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007). A number of international reports point to the same conclusion. The Court has already found that, in the context of the conflict in Chechnya, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Abu Khasuyev or of any news of him for more than seven years supports this assumption.", "For the above reasons the Court considers that it has been established beyond reasonable doubt that he must be presumed dead following unacknowledged detention by State servicemen. 108. As it follows from the documents submitted by the Government, as late as April 2008, that is more than six and half years after the crime had occurred and the investigation had been opened, the most basic steps had not been taken related to the establishment of the identity of the perpetrators and the questioning of the witnesses about the events of 30 August 2001 (see paragraph 81 above). 109. Furthermore, in a case involving disappearance, the Court finds it particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors or courts.", "The documents submitted by the Government from the investigation file opened by the prosecutor’s office do not suggest any progress in more than six years and, if anything, show the incomplete and inadequate nature of those proceedings. Moreover, the stance of the prosecutor’s office and the other law enforcement authorities after the news of Abu Khasuyev’s detention had been communicated to them by the applicant contributed significantly to the likelihood of the disappearance, as no necessary steps were taken in the crucial first days and weeks after the arrest. The authorities’ behaviour in the face of the applicant’s well-substantiated complaints gives rise to a strong presumption of at least acquiescence in the situation and raises strong doubts as to the objectivity of the investigation. 110. For the above reasons the Court considers that it has been established that Abu Khasuyev must be presumed dead following his unacknowledged detention by State servicemen.", "III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 111. The applicant complained under Article 2 of the Convention that her son had disappeared after being detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone’s right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The alleged violation of the right to life of Abu Khasuyev 112. The applicant maintained her complaint and argued that her son had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years.", "113. The Government referred to the fact that the investigation had obtained no evidence to the effect that Abu Khasuyev was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing. 114. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no.", "324, §§ 146-147, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001‑VII (extracts)). 115. The Court has already established that the applicant’s son must be presumed dead following unacknowledged arrest by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Abu Khasuyev.", "B. The alleged inadequacy of the investigation into the abduction 116. The applicant argued that the investigation into her son’s disappearance had fallen short of the requirements of domestic law and the Convention standards. She pointed out that although she had informed the authorities about her son’s abduction on 30 August 2001 the investigation had not commenced until 27 October 2001 (and/or 22 December 2001), almost two months after her son’s abduction. The applicant pointed out that from 22 December 2001 to 29 June 2004, that is for more than two years, she had been the only witness questioned by the investigation.", "The applicant also pointed out that prior to the communication of her application to the respondent Government, only she and two of her relatives had been questioned by the investigation; that the authorities had failed to question a number of important witnesses, including the military servicemen who had been on duty at the checkpoint and could have witnessed Abu Khasuyev’s abduction, as well as local residents who also could have witnessed the events. In addition, the investigation had failed to take any measures to establish the law enforcement agency to which the vehicles used during her son’s abduction could have belonged. The applicant argued that the investigation had been excessively long, that it had been pending for more than seven years but had failed to produce any tangible results, having been repeatedly suspended and reopened. Furthermore, although the authorities had provided the applicant with copies of the decisions concerning the suspensions of the criminal investigation, these documents had not contained sufficient information which would have enabled her to appeal against them. In addition, the applicant had not been granted access to the case file.", "117. The Government claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness as all measures envisaged in national law were being taken to identify those responsible. 118. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-119).", "119. In the present case, an investigation of the abduction was carried out. The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 120. The Court notes at the outset that the documents from the investigation were partially disclosed by the Government.", "It therefore has to assess the effectiveness of the investigation on the basis of these documents, documents submitted by the applicant and the information about the investigation’s progress presented by the Government. 121. As to the facts of the case, it has already been established that no proper investigation has taken place into the disappearance of Abu Khasuyev. The Court notes that the investigation was opened on 27 October 2001, that is one month and twenty-seven days after the detention had occurred. This delay in itself was liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action has to be taken in the first days after the event.", "The crime scene investigation in the applicant’s flat was conducted only on 6 July 2006, which is four years, ten months and seven days after the abduction (see paragraph 73 above). It also appears that within the two years following the abduction the applicant was the only witness questioned by the investigators. In April 2008 the supervising prosecutor criticised the investigation, indicated the number of crucial steps which had been delayed and ordered the investigators to carry them out (see paragraph 81 above). 122. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced.", "These delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute 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). 123. A number of essential steps were never taken. Most notably, it does not appear that the investigation tried to identify and question the servicemen who had been manning the checkpoint situated across the street from the applicant’s house or that they had tried to identify and question any of the servicemen who might have participated in a special operation in Urus-Martan and could have been involved in the detention of Abu Khasuyev.", "124. The Court also notes that even though the applicant was granted victim status twice (see paragraphs 63 and 74 above), she was only informed of the suspensions and resumptions of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. 125. Finally, the Court notes that the investigation was suspended and resumed at least seven times and that on several occasions the supervising prosecutors and the local court criticised deficiencies in the proceedings and ordered remedial measures.", "However, it appears that these instructions were not complied with. 126. The Government raised the possibility for the applicant to make use of judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicant, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of investigating authorities before a court. Furthermore, the investigation has been resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative steps.", "However, they still failed to investigate the applicant’s allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that should have been carried out much earlier could no longer be usefully conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation. 127. In the light of the foregoing, the Court dismisses the Government’s preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation, and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Abu Khasuyev, in breach of Article 2 in its procedural aspect.", "IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 128. The applicant relied on Article 3 of the Convention, submitting that as a result of her son’s disappearance and the State’s failure to investigate those events properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” 129.", "The Government contended that there was no evidence confirming that the applicant had been subjected to treatment in breach of Article 3 of the Convention stating that “the investigation did not receive any information concerning inhuman or degrading treatment of the applicant by officials of the Russian Federation”. 130. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably having been caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, 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 mainly 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 (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 131. In the present case the Court notes that the applicant is the mother of the disappeared man. For more than seven years she has not had any news of him.", "During this period the applicant has applied to various official bodies with enquiries about her son, both in writing and in person. Despite her attempts, she has never received any plausible explanation or information as to what became of her son following his detention. The responses received by the applicant mostly denied that the State was responsible for his arrest or simply informed her that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 132.", "In view of the above, the Court finds that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her son and her inability to find out what happened to him. The manner in which her complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3. 133. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicant. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 134.", "The applicant further stated that Abu Khasuyev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “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.” 135. In the Government’s opinion, no evidence was obtained by the investigation to confirm that Abu Khasuyev was detained in breach of the guarantees set out in Article 5 of the Convention. 136. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no.", "25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122). 137. The Court has found that Abu Khasuyev was detained by State servicemen on 30 August 2001 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.", "Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 138. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that her son had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 139.", "Consequently, the Court finds that Abu Khasuyev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 140. The applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 141.", "The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using them. In particular, the applicant had had an opportunity to appeal against the actions or omissions of the investigating authorities to supervising prosecutors and to the courts. 142. 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). 143.", "It follows that in circumstances where, as here, the criminal investigation into the disappearance was ineffective and the effectiveness of any other remedy that may have existed was consequently undermined, the State has failed in its obligation under Article 13 of the Convention. 144. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 145. As regards the applicants’ reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no.", "29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008). VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 147.", "The applicant made a claim in respect Abu Khasuyev’s loss of earnings. She claimed a total of 567,497 Russian roubles (RUB) under this head (16,200 euros (EUR)). 148. The applicant submitted that she was financially dependent on her son Abu Khasuyev and that she would have benefited from his financial support in the above amount. The applicant’s calculations were based on the provisions of the Russian Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“Ogden tables”).", "149. The Government regarded these claims as unsubstantiated. 150. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicant’s son and the loss by her of the financial support which he could have provided.", "Having regard to the applicant’s submissions and the absence of any documents substantiating the earnings of Abu Khasuyev at the time of the abduction, the Court awards the applicant EUR 12,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 151. The applicant claimed EUR 50,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her family member, the indifference shown by the authorities towards her and the failure to provide any information about the fate of her son. 152. The Government found the amounts claimed excessive.", "153. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s son. The applicant herself has been found to have been victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR 35,000, plus any tax that may be chargeable thereon.", "C. Costs and expenses 154. The applicant was represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Chechnya and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff and experts. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 8,943. 155.", "The Government did not dispute the details of the calculations submitted by the applicant. 156. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220). 157. Having regard to the details of the contract and submitted documents, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.", "158. 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. 159. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 8,943 as claimed, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.", "D. Default interest 160. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government’s preliminary objection; 2. Holds that there has been a violation of Article 2 of the Convention in respect of Abu Khasuyev; 3.", "Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Abu Khasuyev had disappeared; 4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant; 5. Holds that there has been a violation of Article 5 of the Convention in respect of Abu Khasuyev; 6. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2; 7. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 8.", "Holds that there is no need to examine separately the applicant’s complaints under Article 38 § 1 (a) of the Convention; 9. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement, save for the payment in respect of costs and expenses: (i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant; (ii) EUR 35,000 (thirty five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant; (iii) EUR 8,093 (eight thousand and ninety three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF GAVRIL YOSIFOV v. BULGARIA (Application no. 74012/01) JUDGMENT STRASBOURG 6 November 2008 FINAL 06/02/2009 This judgment may be subject to editorial revision. In the case of Gavril Yosifov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Karel Jungwiert,Volodymyr Butkevych,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 7 October 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 74012/01) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Gavril Yordanov Yosifov (“the applicant”), a Bulgarian national born in 1975 and living in Sofia, on 16 January 2001.", "2. The applicant was represented by Ms B. Buneva, Ms E. Stoyanova and Mr B. Boev, 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, in particular, that his deprivation of liberty between 17 July and 26 October 2000 had not been lawful and that he had been unable to obtain a speedy and binding judicial ruling on that question.", "4. On 4 May 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 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "On 19 November 1996 the applicant was arrested and detained on suspicion of committing an offence. On 22 November 1996 he was charged with seven counts of theft, one count of attempted theft and one count of robbery. Most of the charges concerned offences committed jointly with others. He remained in custody until 30 September 1997, when he was released on bail. 6.", "In June 1998 the Sofia District Prosecutor’s Office indicted the applicant, Mr V.S. and Mr D.D. in relation to four thefts and one robbery. On an unspecified date one of the victims of the offences joined the proceedings as a civil claimant. 7.", "After a trial, in a judgment of 7 December 1998 the Sofia District Court found the applicant guilty as charged, sentenced him to three years’ imprisonment, and ordered him to pay damages to the civil claimant. The court did not make an order for the applicant’s detention pending appeal. It did not immediately give the reasons for its judgment; they were made available in October 1999. 8. On 5 January 1999 the applicant’s counsel appealed to the Sofia City Court.", "Since at that point she did not yet have the reasons for the Sofia District Court’s judgment, she submitted in general that the applicant’s conviction was unlawful and unfounded and asked it to be quashed. She also argued that his sentence was excessive and requested that it be revoked or suspended. She said that she would provide further particulars and indicate the evidence to be gathered as soon as the reasons for the Sofia District Court’s judgment became available. As required under Article 318 § 2 of the 1974 Code of Criminal Procedure, the appeal was lodged through the Sofia District Court. 9.", "On 17 February 1999 the Sofia District Court briefly noted that the appeal did not meet the requirements of Article 319 of the Code and, without indicating the specific deficiencies, directed the applicant to submit a rectified appeal within seven days. The applicant was notified of the court’s ruling on 20 April 1999, but did not react. Accordingly, in a decision of 10 May 1999 the Sofia District Court dismissed the appeal. Neither the applicant, nor his counsel was notified of this and did not seek to appeal against this decision. 10.", "In line with Article 371 §§ 1 and 2 (3) of the Code (see paragraph 24 below), upon the expiry of the fifteen-day time-limit for appealing against the decision of 10 May 1999 the applicant’s conviction and sentence were considered final and therefore enforceable. On 30 November 1999 he was detained in Sofia Prison for the purpose of serving his sentence. 11. On 20 December 1999 the applicant’s counsel appealed to the Sofia City Court against the Sofia District Court’s decision of 10 May 1999. She argued that the appeal against the applicant’s conviction and sentence had been in line with all legal requirements.", "She stressed that the applicant had not been required to give detailed grounds of appeal, as the Sofia District Court had not made available the reasons for its judgment within the time‑limit for lodging an appeal. Finally, she asked the court to rule rapidly, as the applicant was in custody serving his sentence. 12. On 2 February 2000 the Sofia District Court sent this appeal to the Sofia City Court. 13.", "Two hearings listed by the Sofia City Court on 20 March and 22 May 2000 respectively were adjourned: the first because the applicant had not been properly summoned and, although legally represented, did not appear in person, and the second because his co-accused and the civil claimant, despite being duly summoned, failed to attend. 14. At a hearing which took place on 17 July 2000 the Sofia City Court found that there was no need to involve the applicant’s co‑accused and the civil claimant in the proceedings relating to the propriety of the Sofia District Court’s decision to dismiss his appeal against conviction and sentence. It further held that this appeal had been in line with legal requirements and that the Sofia District Court had erred by dismissing it. Moreover, its decision to do so did not indicate in what respects the appeal had been deficient.", "The court therefore quashed this decision and referred the case back to the Sofia District Court for further consideration of the appeal against the conviction and sentence. With that the criminal proceedings against the applicant were restored and his conviction and sentence were no longer considered final. 15. According to the applicant, at the same hearing his counsel asked the Sofia City Court to consider whether he should remain in custody or be released. The court declined to do so, saying that it was for the Sofia District Court to decide on this matter.", "16. After 17 July 2000 the applicant’s counsel filed with the Sofia District Court and the Sofia District Prosecutor’s Office several requests for release, none of which was examined. 17. The applicant’s counsel also met three times with the president of the Sofia District Court, who explained that the judge to whom the case had been assigned was absent. On 5 October 2000 the applicant’s counsel filed a complaint with the Supreme Judicial Council, but received no reply.", "18. On 3 October 2000 the Sofia District Court sent the case file to the Sofia City Court. 19. On 24 October 2000 the Sofia City Court set the applicant’s appeal down for examination. Apparently, at this point the president of the panel to which the case had been assigned noticed that the applicant was still in custody.", "For this reason, on the next day, 25 October 2000, she alerted the Sofia District Prosecutor’s Office that, following the decision of 17 July 2000 (see paragraph 14 above), the applicant’s conviction and sentence were no longer considered final, and that he could not be kept in custody pursuant to them. On the same day the Sofia District Prosecutor’s Office ordered the applicant’s release, citing the same reasons. 20. On 26 October 2000 this order was received by the Sofia Prison and the applicant was set free. It appears that until the end of the criminal proceedings against him the applicant was not further remanded in custody.", "21. In a judgment of 27 March 2001 the Sofia City Court acquitted the applicant of the charges concerning two of the thefts and upheld the remainder of the Sofia District Court’s judgment. It imposed a global sentence of one and a half years’ imprisonment. In determining the length of the applicant’s period of imprisonment in pursuance of this sentence it deducted, by reference to Article 59 of the 1968 Criminal Code (see paragraph 30 below), the time he had already spent in custody between 30 November 1999 and 26 October 2000, saying that during this period the applicant had been serving a sentence which had not yet been made final. 22.", "The applicant lodged an appeal on points of law. 23. After holding a hearing on 19 November 2001, in a final judgment of 26 November 2001 the Supreme Court of Cassation upheld the Sofia City Court’s judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Execution of sentences 24. Article 371 § 1 of the 1974 Code of Criminal Procedure (presently superseded by Article 412 § 1 of the 2005 Code of Criminal Procedure), as in force at the material time, provided that criminal convictions and sentences became enforceable after they had been made final. This occurred when, inter alia, no (valid) appeal had been lodged against them (Article 371 § 2 (3), read in conjunction with Article 322 §§ 1 (1) and 2 of the 1974 Code, presently superseded by Article 412 § 2 (3), read in conjunction with Article 323 § 1 of the 2005 Code). 25. The authorities supervising the lawful execution of criminal sentences are the competent public prosecutors (Article 375 § 2 of the 1974 Code (presently superseded by Article 416 § 2 of the 2005 Code), section 118(2) (between 2006 and 2007 section 118(4)) of the 1994 Judicial Power Act (presently superseded by section 146(1) of the 2007 Judicial Power Act) and section 4(1) of the 1969 Execution of Sentences Act).", "They are under a duty to order the release of any detainee who has been unlawfully deprived of his or her liberty (section 119(7)(1) of the 1994 Judicial Power Act, presently superseded by section 146(2)(1) of the 2007 Judicial Power Act). B. The 1988 State Responsibility for Damage Act 26. Section 2 of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act (Закон за отговорността на държавата за вреди, причинени на граждани – “the SRDA”), renamed on 12 July 2006 the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди), as in force at the material time, read, in so far 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. pre‑trial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds; 2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...” 27. According to the Bulgarian courts’ case‑law, the State is liable for all damage caused by pre-trial detention where the accused has been acquitted (реш.", "№ 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) or the criminal proceedings discontinued on grounds that the charges have not been proven, or where the perpetrated act is not an offence (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС). 28.", "In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК), made on 22 April 2004 pursuant to the proposal of the President of the Supreme Court of Cassation, the Plenary Meeting of the Civil Chambers of that court resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In point 13 of the decision it held that the compensation awarded in respect of the non‑pecuniary damage arising under section 2(1) or (2) of the Act should cover also the non‑pecuniary damage stemming from unlawful pre-trial detention imposed during the proceedings, whereas compensation for the pecuniary damage flowing from such detention should be awarded separately.", "The reasons it gave for this decision were as follows: “Pre‑trial detention is unlawful when it does not comply with the requirements of [the CCP]. The State is liable under section 2(1) [of the] SRDA when the pre‑trial detention has been set aside as unlawful, irrespective of how [the criminal] proceedings unfold later. In such cases compensation is determined separately. If the person has been acquitted or the criminal proceedings have been discontinued, the State is liable under section 2(2) [of the] SRDA. In that case, the compensation for non-pecuniary damage has to cover the damage flowing from the unlawful pre‑trial detention.", "If pecuniary damage has arisen, compensation for it is not included but has to be awarded separately, taking into account the particular circumstances of each case.” 29. In point 11 of its decision the court dealt with the question whether the accused should be entitled to compensation under section 2(2) of the SRDA when they have been convicted of some charges and acquitted of others. It held that compensation was due even in cases of partial acquittals, provided there was a proven causal link between the unlawful bringing of charges and the damage suffered. Non‑pecuniary damages were to be assessed globally and in equity, taking into account the number of acts in respect of which an accused has been found not guilty and the respective gravity of the offences of which they have been convicted and those of which they have been acquitted. Pecuniary damages were to be awarded by taking into consideration the particular circumstances of each case and whether or not they flowed from the unlawful acts of the law enforcement authorities.", "C. Other relevant law 30. Under Article 59 § 1 of the 1968 Criminal Code, the sentencing court has to deduct from any sentence of imprisonment the time already spent by the offender pending the final outcome of the case. 31. Section 37(1) of the 1969 Execution of Punishments Act provides that inmates have the right to file applications and complaints, and to appear in person before the prison governor. By section 37(2) of the Act, these applications and complaints have to be sent immediately to the competent authorities.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 32. The applicant complained that his detention between 17 July and 26 October 2000 did not have any basis in domestic law, as it was not in pursuance of a final and enforceable conviction and sentence of imprisonment. He relied on Article 5 § 1 of the Convention, which reads, in so far as relevant: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ...” 33.", "The Government firstly submitted that the applicant had not exhausted domestic remedies. In their view, the grievance which he raised before the Court fell within the ambit of section 2 of the SRDA. At the relevant time the domestic courts’ case‑law on the application of this provision had been sufficiently established, making it an adequate and effective avenue of redress. In support of their assertion the Government pointed to a number of domestic judgments under section 2 of the SRDA and drew attention to the fact that in 2004 the Supreme Court of Cassation had adopted a binding interpretative decision on its application. 34.", "The Government also argued that the applicant could no longer be considered as a victim of a violation, as in determining his sentence the Sofia City Court had taken into account the amount of time when he had been deprived of his liberty in pursuance of a sentence which was not yet final. 35. The applicant replied that the SRDA did not provide an effective remedy for the complaints which he had raised before the Court. In his view, a distinction had to be made between the right to seek release from detention and the right to claim compensation for unlawful deprivation of liberty. A claim under the SRDA would not have led to his release, nor would it have led to the speeding up of the examination of his application for release.", "36. The applicant also pointed out that the Sofia City Court had taken into account the period of his detention between 30 November 1999 and 26 October 2000 because it was bound by law so do to, rather than because it had found that this deprivation of liberty had been unlawful. In so doing it had not acknowledged expressly or in substance the breach of Article 5 § 1 of the Convention. 37. Article 35 § 1 of the Convention provides, in so far as relevant: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” 38.", "According to the Court’s and the former Commission’s settled case‑law, the rule of exhaustion of domestic remedies laid down in this provision is intended to give the Contracting States the opportunity of preventing or putting right the violations alleged against them. When the national authorities acknowledge either expressly or in substance, and then afford redress for, the breach of the Convention, to duplicate the domestic process with proceedings before the Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves it in the first place to each Contracting State to secure the enjoyment of the rights and freedoms it enshrines (see, among other authorities, Kokavecz v. Hungary (dec.), no. 27312/95, 20 April 1999, with further references). 39.", "The rule of exhaustion of domestic remedies requires applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. However, they are only required to avail themselves of remedies which are accessible, capable of providing redress in respect of their complaints and offer reasonable prospects of success (see, as a recent relevant authority, Kolev v. Bulgaria, no. 50326/99, §§ 70 and 72, 28 April 2005). In determining whether any particular remedy meets these criteria, regard must be had to the particular circumstances of the case and the nature of the breaches alleged (see, among other authorities, Caprino v. the United Kingdom, no. 6871/75, Commission decision of 3 March 1978, Decisions and Reports (DR) 12, p. 14, at p. 16 in fine).", "40. In some cases the Court and the former Commission have found that an action for damages cannot be seen as an effective remedy in respect of complaints under Article 5 § 3 about the excessive length of time spent on remand (see Woukam Moudefo v. France, no. 10868/84, Commission decision of 21 January 1987, DR 51, p. 73; Egue v. France, no. 11256/84, Commission decision of 5 September 1988, DR 57, p. 60; Tomasi v. France, judgment of 27 August 1992, § 79, Series A no. 241‑A; Yağcı and Sargın v. Turkey, nos.", "16419/90 and 16426/90, Commission decision of 10 July 1991, DR 71, p. 253, and judgment of 8 June 1995, § 44, Series A no. 319‑A; and, more recently, Haris v. Slovakia, no. 14893/02, § 38, 6 September 2007), under Article 5 § 4 about the failure of a national court to determine speedily an application for release (see Navarra v. France, no. 13190/87, Commission decision of 1 March 1991, DR 69, p. 168, and judgment of 23 November 1993, § 24, Series A no. 273‑B), and under Article 5 § 1 about detention effected in violation of some of its requirements, such as to be ordered by a “competent court” or to be based on a “reasonable suspicion” (see Drozd and Janousek v. France and Spain, no.", "12747/87, Commission decision of 12 December 1989, DR 64, p. 113; and Włoch v. Poland (dec.), no. 27785/95, decision of 30 March 2000 and § 90 of the judgment, ECHR 2000‑XI). In all these cases the main basis for such a decision was that the right to obtain release and the right to obtain compensation for a deprivation of liberty in breach of Article 5 are two separate rights, enshrined respectively in paragraphs 4 and 5 of that Article, and this distinction is also relevant for the purposes of Article 35 § 1. This line of reasoning is of particular importance where the person concerned is still in custody. In such circumstances, the only remedy which may be considered sufficient and adequate is one which is capable of leading to a binding decision for his or her release.", "41. However, in a number of other cases the Court has accepted that, if the impugned detention has come to an end, an action for damages, which is capable of leading to a declaration that this detention was unlawful or in breach of Article 5 § 1 and to a consequent award of compensation, may be an effective remedy in respect of complaints under this provision (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, § 39, Series A no. 77; Amuur v. France, judgment of 25 June 1996, § 36 in fine, Reports of Judgments and Decisions 1996‑III; Steel and Others v. the United Kingdom, judgment of 23 September 1998, § 63, Reports 1998‑VII; Kokavecz, cited above; Anderson v. the United Kingdom (dec.), no. 44958/98, 5 October 1999; Tám v. Slovakia, no. 50213/99, §§ 44‑53, 22 June 2004; Andrei Georgiev v. Bulgaria, no.", "61507/00, §§ 73‑79, 26 July 2007; Kolevi v. Bulgaria (dec.), no. 1108/02, 4 December 2007; and Ladent v. Poland, no. 11036/03, § 39, ECHR 2008‑... (extracts)). 42. In the Court’s view, where the applicant’s complaint of a violation of Article 5 § 1 of the Convention is mainly based on the alleged unlawfulness of his or her detention under domestic law, and where this detention has come to an end, an action capable of leading to a declaration that it was unlawful and to a consequent award of compensation is an effective remedy which needs to be exhausted, if its practicability has been convincingly established (see Kolevi, cited above).", "To hold otherwise would mean to duplicate the domestic process with proceedings before the Court, which would be hardly compatible with its subsidiary character. 43. In the present case, the Court observes that on 25 October 2000 the Sofia District Prosecutor’s Office, having been alerted by the Sofia City Court that the applicant’s conviction and sentence were not final and enforceable and that he could not be kept in custody pursuant to them, ordered his immediate release. On the next day, 26 October 2000, the applicant was set free (see paragraphs 19 and 20 above). Later he was acquitted of some of the charges against him, which means that he fell within the ambit of point 11 of the 2004 interpretative decision of the Supreme Court of Cassation (see paragraphs 21, 23 and 29 above).", "The Court further observes that the gravamen of the applicant’s complaint under Article 5 § 1 was that his detention between 17 July and 26 October 2000 had no legal basis in Bulgarian law (see paragraph 32 above). It finally notes that a claim under section 2(1) or (2) of the SRDA would have required the national courts to review the legality of the applicant’s detention and to award compensation for any damage suffered, in case they found that this detention had not been lawful (see paragraphs 26, 27 and 28 above). In the Court’s view, these elements are sufficient to show that a claim under section 2 of the SRDA would have, in all probability, been an effective remedy in respect of the applicant’s grievance under Article 5 § 1. However, although in his initial application to the Court he said that he contemplated bringing such a claim, there is no information in the case file that he actually did so. 44.", "It follows that the applicant’s complaint under Article 5 § 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. 45. In view of this conclusion, the Court does not consider it necessary to deal with the Government’s second objection. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 46.", "The applicant complained of two matters under this provision. He firstly found fault with the amount of time taken by the Sofia City Court to rule on his appeal of 20 December 1999. Secondly, he criticised that court for having declined to make an order for his release on 17 July 2000 despite finding that the appeal against his conviction and sentence had been validly lodged, with the result that the same conviction and sentence had not become final and enforceable. 47. Article 5 § 4 of the Convention provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 48.", "The Government firstly maintained that the complaint was inadmissible for failure to exhaust domestic remedies. In their submission, the applicant’s grievance fell within the ambit of section 2 of the SRDA, which provided a reliable and effective remedy in respect of it. There existed ample case‑law on the application of this provision and in 2004 it had been authoritatively construed by the Supreme Court of Cassation. However, the applicant had not shown that he had brought a claim under this provision. 49.", "The Government secondly argued that the applicant had lost his victim status, because the Sofia City Court had deducted the period of time he had been deprived of his liberty between 30 November 1999 and 25 October 2000 from his sentence. 50. The applicant replied that a claim under section 2 of the SRDA could not have led to the speeding up of the examination of his requests for release. Concerning the alleged loss of victim status, he reiterated his arguments relating to the admissibility of his complaint under Article 5 § 1 (a) of the Convention. 51.", "Concerning the first objection of the Government, the Court, leaving open the question whether a claim for damages may amount to an effective remedy in respect of an alleged breach of Article 5 § 4 of the Convention (see Kolev v. Bulgaria, no. 50326/99, § 71, 28 April 2005), observes that it has previously found that section 2 of the SRDA does not create a cause of action in respect of complaints under this provision (see Andrei Georgiev, cited above, § 80). It has also found that the case‑law of the Bulgarian courts in relation to claims for damages under section 2 of the SRDA premised on breaches of Article 5 § 4 of the Convention was not clear and settled (see Kolev, § 73; and Kolevi, both cited above). The Court is not aware of – and the Government have not pointed to – any fresh developments which may alter these findings. The 2004 interpretative decision relied on by the Government (see paragraphs 28 and 29 above) is silent on this issue and cannot be seen as a relevant precedent (see, mutatis mutandis, Vachev v. Bulgaria, no.", "42987/98, § 73, ECHR 2004‑VIII (extracts)). This lack of clear case‑law shows the present uncertainty of this remedy in practical terms, in so far as complaints under Article 5 § 4 of the Convention are concerned. The Government’s objection must therefore be dismissed. 52. As regards the Government’s second objection, the Court considers that, unlike the situation with regard to the complaint under Article 5 § 1, the reduction of the applicant’s sentence was neither intended to remedy his grievances under Article 5 § 4, nor capable of doing so.", "While the Sofia City Court said that the applicant’s deprivation of liberty had been in pursuance of a non-final and non-enforceable sentence of imprisonment, it did not mention the problems encountered by him in obtaining a judicial pronouncement on the lawfulness of his detention. He may therefore still claim to be a victim in this respect. 53. Finally, the Court considers that the applicant’s complaint under Article 5 § 4 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3, nor inadmissible on any other ground. It must therefore be declared admissible.", "B. Merits 54. The Government argued that the applicant had not tried all avenues capable of leading to his release. Under section 37(1) of the 1969 Execution of Punishments Act, he was entitled to file requests and appeals with the prison governor and appear in person before him. The governor would have been under the duty to transmit these requests or appeals to the competent authorities.", "There was no indication that the applicant had tried doing so. 55. The applicant reiterated his complaints. 56. According to the Court’s settled case‑law, the remedy required by Article 5 § 4 must be of a judicial nature, which implies that the person concerned should have access to a “court”, within the meaning of this provision, and the opportunity to be heard either in person or, where necessary, through some form of representation (see, among many other authorities, Vachev, cited above, § 71, citing Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no.", "33, p. 24, § 60). This “court”, does not necessarily have to be a court of law of the classic kind, integrated within the standard judicial machinery of the country. However, it must be independent of the executive and of the parties to the case, provide guarantees of a judicial procedure, and be competent to make a legally binding decision leading to the person’s release (see, among others, X v. the United Kingdom, judgment of 5 November 1981, §§ 53 and 61 in fine, Series A no. 46). 57.", "The Court observes at the outset that the applicant’s detention after 30 November 1999 was carried out in pursuance of his conviction and sentence, which were considered to have become final and enforceable (see paragraph 10 above). His deprivation of liberty is therefore to be considered as detention “after conviction” within the meaning of Article 5 § 1 (a) of the Convention, regardless of the position under domestic law (see Wemhoff v. Germany, judgment of 27 June 1968, § 9, Series A no. 7; and B. v. Austria, judgment of 28 March 1990, §§ 35‑40, Series A no. 175). The Court must therefore determine as a threshold matter whether Article 5 § 4 was applicable.", "This provision would in principle be redundant with respect to detention under Article 5 § 1 (a), since judicial control of the deprivation of liberty has already been incorporated into the initial conviction and sentence (see, as a recent authority, Stoichkov v. Bulgaria, no. 9808/02, § 64, 24 March 2005, citing De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971 (merits), § 76, Series A no. 12). However, whenever fresh issues affecting the lawfulness of such detention arise, Article 5 § 4 comes back into play (ibid., § 65, with further references, as well as, more recently, Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 67, 7 February 2008).", "58. It follows that the Court must examine whether any fresh issues of lawfulness were capable of arising in relation to the applicant’s deprivation of liberty between 30 November 1999 and 26 October 2000 and, if so, whether the applicant was able to have them resolved in proceedings complying with the various requirements of Article 5 § 4. 59. The Court observes that, having initially been placed in pre‑trial detention, the applicant was released on bail before his trial (see paragraph 5 above). At the close of the trial the Sofia District Court did not make an order for him to be further detained, pending the outcome of an appeal against his conviction and sentence (see paragraph 7 above).", "He could therefore only have been lawfully deprived of his liberty in pursuance of his conviction and sentence of imprisonment. By Article 371 § 1 of the 1974 Code of Criminal Procedure, a sentence may be executed only if it has been made final (see paragraph 24 above). Indeed, the applicant was further taken into custody only after the competent authorities had formed the view that his conviction and sentence had become final (see paragraph 10 above). The question whether they were actually so was therefore determinative of the legality of his detention. This question was, moreover, independent of and distinct from the issues resolved by the Sofia District Court during the applicant’s trial.", "It follows that the applicant was entitled to apply to a “court” having jurisdiction to decide speedily whether or not his deprivation of liberty was unlawful in this sense (see, mutatis mutandis, Stoichkov, § 66; and Svetoslav Dimitrov, § 69, both cited above). 60. The Court observes that on 20 December 1999 the applicant challenged the dismissal of his appeal against conviction and sentence (see paragraph 11 above). The consideration of this legal challenge was significantly delayed, first in the Sofia District Court and then by reason of two wholly unwarranted adjournments in the Sofia City Court (see paragraphs 12 and 13 above). More significantly, although on 17 July 2000 the Sofia City Court found that the appeal against the applicant’s conviction and sentence had been valid, with the result that neither conviction nor sentence was final or enforceable, it declined to make an order for his release, saying that this was a matter for the Sofia District Court (see paragraphs 14 and 15 above).", "However, later the Sofia District Court, despite several requests, did not examine whether the applicant was to remain in custody or be released (see paragraphs 16 and 17 above). The applicant was thus unable to obtain a speedy judicial ruling as to the lawfulness of his detention, as required by Article 5 § 4. This situation was not made good by the fact that more than three months later, on 24 October 2000, the Sofia City Court informally alerted the Sofia District Prosecutor’s Office to the matter, which in turn made an order for the applicant’s release (see paragraphs 16‑19 above). The Sofia City Court did not make a binding order for the applicant’s release, because it apparently did not consider itself competent to do so, whereas the Sofia District Prosecutor’s Office was not a “court” within the meaning of Article 5 § 4 and the procedure followed by it did not have any judicial features (see, mutatis mutandis, Svetoslav Dimitrov, cited above, § 71). The prison governor, to whom the Government alluded in their observations, was not a “court” either and did not have the power to release the applicant, but merely to transmit his complaints and applications to the competent authorities (see paragraph 31 above).", "61. This state of affairs seems to have been the result of the unclear regulation of the courts’ competence in this domain, the fact that Bulgarian law entrusts all issues affecting the legality of the execution of sentences of imprisonment solely to the competent prosecutors and not to a judge (see paragraph 25 above) and the lack in Bulgarian law of a general habeas corpus procedure whereby any individual deprived of his or her liberty, regardless of the grounds therefor, is entitled to request a court to review the lawfulness of his or her detention and order his or her release if this detention is not lawful (see Stoichkov, § 66; and Svetoslav Dimitrov, § 71, both cited above; and Sadaykov v. Bulgaria, no. 75157/01, § 35 in fine, 22 May 2008). As matters stand, Bulgarian law envisages distinct procedures for challenging specific types of deprivation of liberty, such as pre-trial detention (see, for instance, Ivanov v. Bulgaria (dec.), no. 22434/02, 25 September 2007), confinement to a mental institution (see Kayadjieva v. Bulgaria, no.", "56272/00, §§ 22 and 23, 28 September 2006), or detention pending deportation (see Sadaykov, cited above, §§ 11 and 13). The result of this approach is that individuals whose deprivation of liberty does not fall within a well‑defined category are likely to face serious or even insuperable difficulties in challenging it (see Stoichkov and Sadaykov, both cited above). 62. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in the sphere under examination, for the Contracting States are free to choose different methods of performing their obligations. However, it observes that during the period of his detention between 30 November 1999 and 26 October 2000 the applicant did not have the opportunity to take proceedings providing the guarantees required by Article 5 § 4 of the Convention.", "There has therefore been a violation of this provision. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Alleged violation of Article 6 § 1 of the Convention 63. The applicant complained that the criminal proceedings against him had lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 64.", "The Court observes that the criminal proceedings against the applicant lasted approximately five years, starting on 19 November 1996 and ending on 26 November 2001 (see paragraphs 5 and 23 above). During this time there was a pre‑trial investigation and examination by three levels of court. Their length in itself does not appear excessive, especially if account is taken of the fact that the case involved three co‑defendants charged with several offences, as well as a civil claimant. It is true that certain unjustified delays occurred during the processing of the applicant’s appeal against the judgment of the Sofia District Court (see paragraphs 8‑19 above). However, the Sofia City Court and the Supreme Court of Cassation subsequently disposed of the case in a speedy manner, taking about eight months each (see paragraphs 18, 21 and 23 above).", "The overall length of the proceedings cannot therefore be said to have exceeded a “reasonable time”. 65. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Alleged violation of Article 13 of the Convention 66.", "The applicant complained that he had not had effective remedies in respect of his complaint under Article 6 § 1, in breach of Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 67. According to the Court’s settled case‑law, Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Hadjikostova v. Bulgaria (no. 2), no. 44987/98, § 49, 22 July 2004). Having regard to its findings under Article 6 § 1, the Court considers that the applicant had no “arguable complaint” under that provision in respect of the length of proceedings.", "68. 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 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 5,000 euros (EUR) in respect of non‑pecuniary damage. 71. The Government did not comment on the applicant’s claim. 72.", "The Court observes that the only violation found in the present case was that of Article 5 § 4 of the Convention. On the evidence, the possibility cannot be excluded that the applicant might have been released earlier if he had been able to benefit from the guarantees contained in this provision. On the other hand, any prejudice suffered on that account must have been greatly tempered by the deduction of the relevant period of detention from the sentence of imprisonment ultimately imposed (see paragraph 21 above). Nonetheless, the applicant did forfeit the opportunity of a speedy and effective judicial control of his detention. In addition, he must have suffered, by reason of the absence of the relevant guarantees, feelings of frustration, uncertainty and anxiety not wholly compensated by the finding of violation or by the deduction of the relevant period of detention from his sentence (see, mutatis mutandis, De Jong, Baljet and Van den Brink, cited above, § 65; and Kolanis v. the United Kingdom, no.", "517/02, § 92, ECHR 2005‑V). Ruling on an equitable basis, as required under Article 41, the Court awards him EUR 1,500, plus any tax that may be chargeable. B. Costs and expenses 73. The applicant sought the reimbursement of EUR 1,750 incurred in lawyers’ fees for the proceedings before the Court.", "He submitted a fee agreement between himself and his lawyer and a time sheet. 74. The Government did not comment on the applicant’s claim. 75. According to the Court’s settled case‑law, only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention.", "In the present case, having regard to the information in its possession and the above criteria, and noting that part of the application was declared inadmissible, the Court considers it reasonable to award the sum of EUR 1,000, plus any tax that may be chargeable to the applicant. C. Default interest 76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint that the applicant was not able to take proceedings in which to have determined in a speedy manner the lawfulness of his deprivation of liberty between 30 November 1999 and 26 October 2000 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months 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 1,500 (one 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekRait MarusteRegistrarPresident" ]

[ "SECOND SECTION CASE OF YORGIYADIS v. TURKEY (Application no. 48057/99) JUDGMENT STRASBOURG 19 October 2004 FINAL 30/03/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yorgiyadis v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrL.", "Loucaides,MrR. Türmen,MrK. Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze, judges,and Mr T.L.", "Early, Deputy Section Registrar, Having deliberated in private on 28 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48057/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Efrosini Yorgiyadis (“the applicant”), on 5 April 1999. 2. The applicant was represented by Mr C. Eren and Ms N. Kepoğlu, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 28 January 2003 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the remainder of the application at the same time as its admissibility. THE FACTS 4.", "The applicant, Ms Efrosini Yorgiyadis, was born in 1964 and lives in Istanbul. 5. On 25 October 1982 by signing a contract of adoption before a notary public in Bakırköy, Semiramis Gradlekova adopted the applicant. Semiramis Gradlekova died on 18 November 1982. The applicant was left as the only legal heir to her property.", "6. On 17 May 1983 the Treasury filed an action with the Şişli First Instance Court in Civil Matters requesting the annulment of the above-mentioned contract of adoption. The Treasury alleged that the contract did not comply with the necessary requirements and was not therefore a valid contract of adoption. They requested that Mrs Gradlekova's property be transferred to the State. 7.", "On 3 August 1983 the public prosecutor filed an indictment with the Bakırköy Assize Court accusing the applicant and four other persons of fraudulent misrepresentation and forgery. 8. On 10 October 1983 experts in handwriting analysis produced a report in which they concluded that the signature of Semiramis Gradlekova appearing on the contract of adoption was authentic. The applicant submitted this report to the Şişli First Instance Court in Civil Matters. The court requested the opinion of another group of experts.", "On 27 November 1985 the second group of experts confirmed the findings contained in the first report. 9. On 17 December 1986 the Şişli First Instance Court in Civil Matters held that the contract satisfied the necessary requirements of a valid contract of adoption and rejected the Treasury's claims. 10. The Treasury appealed.", "On 20 December 1987 the Court of Cassation quashed the decision of the Şişli First Instance Court. It held that the first-instance court should have adjourned the examination of the case pending the decision of the Bakırköy Assize Court in the criminal proceedings. The applicant requested rectification of the Court of Cassation's ruling. On 17 October 1988 the Court of Cassation rejected her request. 11.", "On 21 April 1989 the Şişli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation. The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), which quashed the decision of the Şişli First Instance Court in Civil Matters on 21 February 1990. 12. On 4 February 1991, at the request of the Bakırköy Assize Court, the Forensic Medicine Institute drew up a report which concluded that the signature of Semiramis Gradlekova on the contract of adoption was authentic. However, in a further report dated 28 August 1991 the Forensic Medicine Institute noted that its examination of 4 February 1991 had been based on a comparison between the signature of Semiramis Gradlekova on the contract of adoption and her signature on documents submitted in furtherance of her request for permission to draw up and conclude a contract of adoption.", "The examination of other materials bearing the signature of Semiramis Gradlekova revealed in fact that the signature on the contract of adoption was not her signature. 13. On 13 May 1992 five experts from the Forensic Medicine Institute prepared another report. According to the experts, the signature of Semiramis Gradlekova on the contract of adoption was not authentic. 14.", "The applicant sought the opinion of another group of handwriting experts. On 20 May 1993 the experts, a graphologist and two professors, finalised their analysis and drafted a report. According to the experts, the reports submitted by the Forensic Medicine Institute experts were contradictory. In their opinion, the signature of Semiramis Gradlekova on the contract of adoption was genuine. On 16 July 1993 the Bakırköy Assize Court requested the Forensic Medicine Institute to clarify whether or not the signature of Semiramis Gradlekova on the contract of adoption was authentic.", "On 10 August 1993 seven experts belonging to the Forensic Medicine Institute, having considered the findings contained in the previous expert reports, concluded that the signature of Semiramis Gradlekova on the contract of adoption was authentic. Five of the experts who signed this report had also signed the report dated 13 May 1992. 15. On 6 September 1993, after requesting several reports from different handwriting experts and from the Forensic Medicine Institute, the Bakırköy Assize Court decided to discontinue the proceedings against the applicant and her co-accused on the ground that the offences of which they were charged had become time-barred since a period of ten years had elapsed since the date of the charges. The court further held that, having regard to the apparent inconsistency between the two reports of the Forensic Medicine Institute dated 13 May 1992 and 10 August 1993, the Bakırköy Public Prosecutor should open criminal proceedings against the five experts who had signed both reports.", "16. The applicant lodged an appeal against the decision of the Bakırköy Assize Court. On 7 June 1994 the Court of Cassation rejected the applicant's appeal. 17. On 15 December 1994 the Şişli First Instance Court in Civil Matters held that the expert reports had established that the Treasury had failed to substantiate the allegations of forgery and thus rejected their claim.", "The Treasury appealed. On 20 April 1995 the Court of Cassation quashed the decision of the Şişli First Instance Court in Civil Matters. 18. On 18 April 1996 the Şişli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation. The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation.", "On 12 March 1997 it quashed the decision of the Şişli First Instance Court in Civil Matters. 19. On 9 December 1997 the Şişli First Instance Court in Civil Matters decided to abide by the decision of the Joint Civil Chambers of the Court of Cassation. On 7 May 1998 the Court of Cassation upheld the decision of the Şişli First Instance Court in Civil Matters. 20.", "On 15 November 1998 the Court of Cassation rejected the applicant's request for rectification of the judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 22. The Government disputed this allegation, submitting that the proceedings at issue had not exceeded a reasonable time.", "A. Period to be taken into consideration 23. The civil proceedings were initiated on 17 May 1983 and ended on 15 November 1998. The proceedings in total thus lasted almost fifteen years and six months. The intervening criminal proceedings, which began on 3 August 1983 and ended with the Court of Cassation's rejection of the applicant's request for leave to appeal on 7 June 1994, cannot be the subject of a separate complaint under Article 6.", "However, given the impact of the length of the criminal proceedings on the overall length of the civil proceedings, the Court will have regard to the manner in which the criminal proceedings were conducted from the standpoint of the reasonable-time requirement. 24. Furthermore, the Court's jurisdiction ratione temporis only permits it to consider the period of just over eleven years and ten months that elapsed after 28 January 1987, the date of deposit of Turkey's declaration recognising the right of individual petition to the European Commission of Human Rights (see Cankoçak v. Turkey, nos. 25182/94 and 26956/95, §§ 25-26, 20 February 2001). It must nevertheless take account of the state of the civil proceedings at the time when the aforementioned declaration was deposited (ibid, § 25).", "On that date the civil proceedings had already lasted almost four years. B. Admissibility 25. The Court notes that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits 26. The Court reiterates that the reasonableness of the length of the civil 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). 1. Complexity of the case 27.", "The Government submitted that the case was complicated as it required the appointment of several experts in order to establish the authenticity of the signature found on the adoption contract. The expert reports gave rise to contradictory findings and this in turn required the domestic courts to seek further evidence. 28. The applicant contested the Government's argument that the case was complicated. 29.", "Even having regard to the factual dispute over the authenticity of signature on the adoption contract and to the need to have recourse to experts to clarify this matter, the Court considers that the overall length of the proceedings cannot be explained by the complexity of the case alone. 2. Conduct of the applicant 30. The Government argued that even though the applicant was entitled to make use of her right of appeal, she in fact appealed on five occasions and thereby prolonged the proceedings for a considerable time. 31.", "The applicant disputed this assertion and noted that the Treasury for its part had appealed against the judgments of the civil court on four occasions. 32. The Court notes that the applicant cannot be reproached for having made use of her procedural rights. In particular, there is nothing to indicate that she abused appeal procedures or wasted the courts' time with vexatious and purely self-serving motions. 3.", "Conduct of the relevant authorities 33. The Government claimed that there was no delay either on the part of the administration or of the judicial authorities. They maintained that twenty-seven hearings were held in total during the civil proceedings. The longest interval between these hearings was three months. The Şişli First Instance Court delivered five judgments, while the Court of Cassation delivered six and the Joint Civil Chambers of the Court of Cassation delivered four judgments.", "In total, fifteen judgments were delivered in fifteen years during both the civil and criminal proceedings. Moreover, the higher courts had required the civil court to adjourn the proceedings pending the completion of the criminal proceedings. 34. The applicant submitted that the criminal proceedings took ten years, nine months and twenty-two days and the civil proceedings took fifteen years, five months and eighteen days in total. She argued that such long periods cannot be considered reasonable in a country where the life expectancy was sixty years.", "35. The Court considers that the decision of the Court of Cassation of 20 December 1987 to stay the civil proceedings pending the outcome of the criminal case against the applicant cannot in principle be reproached. That being said, it cannot be overlooked, firstly, that the Şişli First Instance Court had to wait until 7 June 1994, the date on which the criminal proceedings were concluded, before resuming the civil action and, secondly, the criminal proceedings were in fact eventually discontinued since the ten-year prescription period had expired. Even having regard to the contradictory findings of the experts in the criminal proceedings as to the authenticity of the signature on the contract of adoption, it has not been explained to the Court's satisfaction why this issue could not have been resolved sooner. It must be concluded that the civil proceedings were prevented from pursuing their course by the slowness of the criminal proceedings.", "36. The Court next notes that, given the failure of the criminal courts to reach any firm conclusion on the authenticity of the signature on the contract, the civil courts had to revert to this matter afresh. It must be observed that a period of almost four years elapsed between the date of the Şişli First Instance Court's first decision in the renewed civil case and the decision of the Court of Cassation finally disposing of the case. It is true that the case was examined at several instances. However, having regard to the date on which the civil proceedings were first initiated, and making an overall assessment, it can only be concluded that those proceedings were not determined within a reasonable time.", "37. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's case was not heard within a reasonable time. There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant sought an award of 13,122,407.38 US dollars (USD) for pecuniary damage to cover the value of the property at issue, the taxes that she had paid and the expenses that she incurred in respect of the property during the proceedings. Moreover, she requested USD 200,000 in respect of non-pecuniary damage. 40.", "The Government argued that as the applicant's complaint concerning the alleged violation of her right to property had been declared inadmissible by the Court on 28 January 2003, her pecuniary claims had no casual link with her length of proceedings complaint. Moreover, the applicant's non-pecuniary claim was both unsubstantiated and exorbitant. 41. The Court reiterates that it can only award reparation in respect of its finding that there has been a violation of the Convention as regards the unreasonable length of the proceedings. No causal link has been shown between the violation found under Article 6 and the pecuniary loss alleged.", "It therefore disallows the applicant's claim. However, it considers that the applicant should be awarded some compensation for non-pecuniary damage since she must have suffered distress and anxiety due to the uncertainty created by the excessive length of the proceedings. Deciding on an equitable basis and having regard to its case-law, the Court awards her a total sum of 7,500 euros (EUR) for non-pecuniary damage. B. Costs and expenses 42.", "The applicant claimed USD 2,059,260 for costs and expenses incurred before the domestic courts and USD 686,420 for those incurred in the Convention proceedings. 43. The Government refuted the applicant's claims. They contended that an award of just satisfaction should not cover any legal fees incurred in the domestic proceedings. Furthermore, they maintained that only those costs and expenses that can be proven with reference to supporting documents or bills should be reimbursed.", "44. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, applying the principles laid down in its case-law and having regard to the information in its possession, the Court considers it reasonable to award the applicant the sum of EUR 2,500. 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, the following amounts, to be converted into Turkish Liras at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 19 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyJ.-P. Costa Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ÖZATA v. TURKEY (Application no. 19578/02) JUDGMENT STRASBOURG 20 October 2005 FINAL 15/02/2006 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 Özata v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrL. Caflisch,MrR. Türmen,MrC. Bîrsan,MrsM. Tsatsa-Nikolovska,MsR.", "Jaeger, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 29 September 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19578/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Zahide Songül Özata (“the applicant”), on 15 April 2002. 2. The applicant was represented by Mr M.N.", "Terzi, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court 3. On 3 June 2004 the Court (Third Section) declared the application partly inadmissible and decided to communicate the complaint concerning the lack of an oral hearing, non-communication to the applicant of the observations of the Public Prosecutor before the Antalya Assize Court and the Chief Public Prosecutor before the Court of Cassation, length of compensation proceedings and non-payment of the compensation that was awarded by the court. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.", "On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Ankara.", "6. The applicant was arrested in Antalya on 21 November 1995 by the police officers from the Prevention of Terrorism Department of the Antalya Security Directorate, on suspicion of being a member of the PKK. She was kept in police custody until 29 November 1995. 7. In the evening of 29 November 1995, right after her release from police custody, the applicant went to a private hospital to be treated.", "According to the medical reports dated 30 November 1995 and 1 December 1995, drafted by the doctors who were involved in her treatment, the applicant stayed in the hospital for three days as she was suffering from hyper-tension. Moreover, it was also noted that she was diagnosed with neurotic anxiety. It was suggested for her to rest for three more days. 8. On 25 December 1995 the İzmir Public Prosecutor at the State Security Court dropped the charges against the applicant, on the ground of lack of evidence.", "9. On 13 February 1996, invoking Articles 1 § 6 and 2 § 1 of the Law No. 466, the applicant brought an action before the Antalya Assize Court against the Treasury, requesting compensation for her unlawful arrest and detention which lasted eight days. She claimed 500,000,000 Turkish Liras (TRL) to compensate for her non-pecuniary damages and 11.820,000 TRL for her hospital expenses. 10.", "On 19 July 1996, after consulting the written opinion of the Public Prosecutor, the Antalya Assize Court held that the applicant be awarded compensation for her hospital expenses and 30,000,000 TRL for her non-pecuniary damages, calculated on the basis of her personal, financial and social status. 11. The applicant and the treasury both appealed against the award. The applicant contended on appeal that the amount of compensation was insufficient for her wrongful arrest and detention. The Treasury considered that the amount awarded was excessive.", "12. On 19 March 1997 the Principal Public Prosecutor submitted his opinion on the merits of both parties' appeals. He advised the court to quash the first-instance judgment. He held that the expenses incurred in a private hospital should not be reimbursed. Moreover, in view of the relevant case law, he considered the compensation awarded for non-pecuniary damages to be excessive.", "13. On 27 May 1997 the Court of Cassation quashed the judgment on the ground that the Assize Court rendered its decision without first establishing whether the applicant's hyper-tension was caused by her detention in police custody. 14. On 4 July 1997 the court decided to obtain medical opinion concerning the cause of applicant's illness. Moreover, the Public Prosecutor was asked for his written observations on the applicant's claim.", "15. Two medical reports, dated 27 October 1997 and 3 December 1997 and drafted by the doctors who treated the applicant, were submitted with the Antalya Assize Court. They confirmed the fact that the applicant was hospitalised in November 1995 for three days and that she was diagnosed with hyper-tension and neurotic anxiety which were aggravated due to the detention conditions. 16. On 13 January 1998 the court questioned the two doctors who were responsible for the applicant's treatment.", "The doctors confirmed that both the hyper-tension and the neurotic anxiety were health problems of which the applicant must have suffered well before her detention period. However, they also confirmed the aggravating effect of the detention conditions on these illnesses. The court requested the Forensic Department at the Ministry of Justice to examine the case file and submit its comments. 17. On 27 April 1998 the third specialization committee of the Forensic Department concluded that they were unable to determine for certain whether the hyper-tension and the neurotic anxiety were the applicant's existing health problems prior to her detention in police custody.", "It therefore referred the case file to a different committee of the Forensic Department. 18. According to the fourth specialization committee's report of 20 December 1999, which was submitted to the court on 27 March 2000, both the hyper-tension and the neurotic anxiety were not caused by detention conditions. 19. On 8 June 2000, in view of the report dated 20 December 1999, the Antalya Assize Court held that the applicant be awarded only compensation for non-pecuniary damages.", "In light of the facts of the case and having considered the applicant's financial and social status, as well as the intensity of her emotional suffering, the court awarded the applicant 30,000,000 TRL by way of compensation for her non-pecuniary damages 20. On 28 June 2000 the applicant appealed against the judgment, claiming that she must have been awarded both pecuniary and non-pecuniary damages together with the interest. She further requested the Court of Cassation to hold a hearing. 21. In his written submissions of 30 November 2000 the Principal Public Prosecutor at the Court of Cassation recommended to the court to dismiss the applicant's claims as well as her request for a hearing.", "It argued that the applicant's case did not concern a criminal issue which would require holding a hearing at the appeal level. The public prosecutor, nevertheless, advised the court to quash the decision of the Assize Court for procedural reasons. 22. On 12 December 2000 the Court of Cassation followed the opinion of the Principal Public Prosecutor and quashed the decision of the Antalya Assize Court. 23.", "On 2 January 2001 the case was resumed before the Antalya Assize Court. The Public Prosecutor advised the court to reject the applicant's claim for pecuniary damages and grant her compensation for her non‑pecuniary damages. 24. On 30 May 2001 the Assize Court awarded the applicant 30,000,000 TRL of non-pecuniary damages together with interest. 25.", "On 30 July 2001, reiterating her previous reasons, the applicant appealed against the judgment. On 28 November 2001 the Principal Public Prosecutor at the Court of Cassation recommended to the court to uphold the decision of the criminal court. 26. On 24 December 2001 the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 30 May 2001. 27.", "According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to her by the Antalya Assize Court. II. RELEVANT DOMESTIC LAW 28. A description of the relevant domestic law at the material time can be found in Göç v. Turkey ([GC], no. 36590/97, §§ 27-34, ECHR 2002‑V).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29. The applicant maintained that her right to a fair and public hearing was breached on two counts: firstly, she was never afforded an oral hearing in the determination of her compensation claim; secondly, she was never given an opportunity to reply to the Public Prosecutor's written opinion submitted to the Antalya Assize Court and to the written opinion of the Principal Public Prosecutor submitted to the Court of Cassation on the merits of her appeal. Furthermore, the applicant complained that her compensation proceedings were not concluded within a “reasonable time” within the meaning of Article 6 § 1 of the Convention. Article 6 § 1 provides as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” 30.", "The Government contested that argument. A. Admissibility 31. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Absence of an oral hearing in the domestic proceedings 32. The applicant alleged that she should have been given the opportunity to state to the judicial authorities the suffering that she had to go through during her unlawful detention in police custody. Additionally she contended that, as her claim was dismissed on account of the findings in the Forensic Department's report, she should have been able to put questions to the doctors who had drafted it.", "She further argued that the amount of compensation awarded for her non-pecuniary damages was far from being satisfactory, let alone leading to unjust enrichment, as maintained by the Government. 33. The Government asserted that in accordance with Article 3 of the Law no. 466, the domestic court decides the case on the file, without holding a hearing. They contended that although the applicant's case fell within the jurisdiction of the Assize Court, it was not a criminal case.", "Therefore her claim could have been dealt with expeditiously on the basis of the case file alone. They argued that the Assize Court dismissed the applicant's claim for pecuniary damages, relying on the medical reports which confirmed that her illness pre-dated the detention period. Moreover, the compensation awarded for non-pecuniary damages was appropriate, considering that a higher amount would have led to unjust enrichment. The Government additionally maintained that the case file was at the parties' disposal throughout the proceedings. Thus the applicant could have taken a copy of the documents therein and submitted her written comments.", "34. According to the Court's established case-law, in proceedings before a court of first and only instance the right to a “public hearing” in the sense of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see, among others, Allan Jacobsson v. Sweden (no. 2), judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, p. 168, § 46). 35. The Court observes that the applicant's claim was examined by the Antalya Assize Court and then on appeal by the Court of Cassation three times.", "At no stage was she afforded an opportunity to state her case orally before the domestic courts. 36. While it is true that the fact of the applicant's detention and the length of that detention as well as her financial and social status could be established on the case file and without the need to hear the applicant different considerations must apply to assessment of the emotional suffering which the applicant alleged she endured. In the Court's opinion, the applicant should have been afforded an opportunity to explain orally to the Antalya Assize Court the moral damage which her detention entailed for her in terms of distress and anxiety. The essentially personal nature of the applicant's experience, and the determination of the appropriate level of compensation, required that she be heard.", "It cannot be said that these matters are technical in nature and could have been dealt with properly on the basis of the case file alone. On the contrary, the Court considers that the administration of justice and the accountability of the State would have been better served in the applicant's case by affording her the right to explain her personal situation in a hearing before the domestic court subject to public scrutiny (Göç, cited above, § 51). 37. The Court, therefore, considers that there were no exceptional circumstances that could justify dispensing with an oral hearing and accordingly Article 6 § 1 of the Convention has been breached. 2.", "Non-communication of the public prosecutors' written opinions submitted to the Antalya Assize Court and to the Court of Cassation 38. The applicant contended that she was not informed of the written submission of the public prosecutor submitted to the Antalya Assize Court as well as the opinion the principal public prosecutor submitted to the Court of Cassation. She therefore argued that she did not have the opportunity to respond to the prosecutors' submissions and to present her own arguments. 39. The Government did not make any submissions regarding this complaint.", "40. 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 in its Göç v. Turkey judgment (cited above, § 58). In that judgment, the Court held that, having regard to the nature of the principal public prosecutor's submissions and to the fact that the applicant was not given an opportunity to make written observations in reply, there had been an infringement of the applicant's right to adversarial proceedings (loc. cit. § 55).", "41. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned case. 42. There has accordingly been a violation of Article 6 § 1 of the Convention as regards the non-communication to the applicant of the public prosecutors' observations before the Antalya Assize Court and Court of Cassation. 3.", "Length of the proceedings 43. The applicant alleged that the length of the compensation proceedings was in breach of the “reasonable time” requirement under Article 6 § 1 of the Convention. 44. She stressed that her case had not required any lengthy judicial examination because it had not been complex. It had concerned an ordinary claim for compensation based on an unlawful detention.", "45. The Government considered that the courts' handling of the applicant's case had complied with the “reasonable time” requirement. They contended that it had essentially been the conduct of the applicant that had delayed the determination of her claim. She had contributed to the prolongation of the proceedings by appealing against the judgments of the Antalya Assize Court on three occasions. 46.", "The court observes that the proceedings started on 13 February 1996, when the applicant lodged her claim with the Antalya Assize Court, and that they were terminated with the Court of Cassation's judgment of 24 December 2001 (see paragraphs 8 and 24 above). Accordingly, the period to be considered is approximately 5 years and 10 months. 47. The Court will examine the reasonableness of that period in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Humen v. Poland [GC], no.", "26614/95, § 60, 15 October 1999). 48. As regards the nature of the case, the Court observes that, given that the determination of the claim involved the need to obtain expert evidence, it was of a certain complexity. Yet it does not share the Government's opinion that the applicant contributed to the length of the proceedings. The applicant cannot be reproached for having made use of her procedural rights.", "In particular, there is nothing to indicate that she abused appeal procedures or wasted the courts' time with vexatious and purely self-serving motions. 49. As regards the conduct of the judicial authorities, the Court observes that during the period under consideration the case was heard by the courts at six instances. Although no hearing was held, the court examined the case file regularly and, indeed no inordinate, delay in the proceedings occurred in connection with the taking of expert evidence (see paragraphs 13-16 above). Consequently, the Court considers that the authorities displayed due diligence in handling the applicant's case.", "50. In view of the foregoing and having regard to the overall length of the proceedings, the Court finds that there has been no violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 51.", "The applicant complained under Article 1 of Protocol No. 1 that the non-pecuniary damage that was awarded to her by the court has still not been paid. Article 1 of Protocol No. 1 provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 52. The Government contended that the applicant did not exhaust the domestic remedies as she did not apply to the authorities in order to receive her compensation. 53. The applicant contended that she did not have to apply to the authorities to receive her compensation. As her address was known to the court, the authorities should have taken the initiative to pay her the awarded amount.", "Furthermore, the applicant claimed that to initiate execution proceedings against the Treasury would have been futile as State property cannot be confiscated. She additionally maintained that she refused to receive the compensation as the awarded amount was too little. 54. The Court observes that the applicant cannot be considered to have exhausted all domestic remedies available to her as she did not apply to the domestic authorities to collect her compensation awarded by the court. Even assuming that she was not required by law to apply to a domestic authority to collect the relevant amount, she should have at least complained to the authorities of the fact that no payment was made to her following the Antalya Assize Court's final judgment.", "55. In the light of the foregoing, the Court finds that the applicant failed to exhaust domestic remedies and this complaint should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 57. The applicant claimed the sum of 250 euros (EUR) in respect of her hospital expenses. 58. As regards non-pecuniary damages, considering her distress caused by her unlawful detention and the time that elapsed since her detention, the applicant claimed EUR 10,000. Furthermore, in view of the length of the proceedings and the unfairness of the proceedings she claimed EUR 2,000.", "59. The Government maintained that the medical reports confirmed that the applicant's health problems were not caused by her detention in police custody. Since there was no link between the applicant's illness and her detention in police custody, her pecuniary claims should be dismissed. Moreover, they claimed that her claim for non-pecuniary damages were excessive. 60.", "The Court has found that Article 6 of the Convention has been violated on account of the absence of an oral hearing in the domestic proceedings and the non-communication to the applicant of the public prosecutors' submissions. It does not discern any causal link between the violations found and the applicant's hospital expenses. It therefore rejects her claim for pecuniary damages. 61. Moreover, the Court considers that the finding of violations constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant.", "B. Costs and expenses 62. The applicant sought the reimbursement of EUR 3,000 for her costs and expenses incurred in the domestic and Convention proceedings. She did not produce any supporting documents. 63.", "The Government submitted that the claims were excessive and unsubstantiated. They argued that no receipt or any other document had been produced by the applicant to prove her claims. 64. Making its own estimate based on the information available, the Court considers it reasonable to award the applicant the sum of EUR 1,000 under this head. 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 complaints under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the absence of an oral hearing in the domestic proceedings; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication to the applicant of public prosecutors' written opinions; 4.", "Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the proceedings; 5. Holds that finding of violations constitutes in itself sufficient compensation for any non-pecuniary damage; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable, 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; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 20 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerBostjan M. ZupančičRegistrarPresident" ]

[ "THIRD SECTION CASE OF DMF a.s. v. SLOVAKIA (Application no. 27082/09) JUDGMENT STRASBOURG 5 February 2013 This judgment is final but it may be subject to editorial revision. In the case of DMF a.s. v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Ján Šikuta,Nona Tsotsoria, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 15 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27082/09) 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 joint-stock company established under the Slovak laws, which name is DMF a.s. (“the applicant company”), on 6 May 2009.", "2. The applicant company was represented by Mr M. Kuročka, a lawyer practising in Michalovce. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 24 February 2011 the application was communicated to the Government.", "THE FACTS The circumstance of the case 4. The applicant company was established in 1998 and has its seat in Michalovce. 5. On 14 August 2001 the Malacky Police Office of the Regional Transport Inspectorate instituted criminal proceedings following an accident involving a lorry belonging to the applicant company. The applicant company joined a claim for compensation in respect of damage caused by the accident.", "6. On 5 September 2001 a prosecutor of the Bratislava IV District Prosecutor’s Office quashed the decision of 14 August 2001. The prosecutor ordered to proceed and establish the damage to the lorry and the goods transported. 7. By a decision of 17 October 2002 the Bratislava Regional Directorate of the Police charged the lorry driver with the offence of endangering others under the influence of alcohol.", "8. On 6 December 2002 the applicant company complained to the District Prosecutor’s Office about delays in the criminal proceedings. 9. On 3 January 2003 the prosecutor of the District Prosecutor’s Office informed the applicant company of the course of the proceedings. 10.", "In August 2004 and May and June 2008 the applicant company complained to the Minister of the Interior and the Police General Directorate that the criminal proceedings had been delayed. The Police General Directorate acknowledged by two letters of July 2008 that the delays in the criminal investigation had been partly attributable to the police. 11. Between October 2002 and January 2006 the police investigator, according to the prosecutor’s instruction, gathered evidence necessary to establish damage and to identify the aggrieved party. 12.", "On 13 January 2006 the applicant company complained to the Office of the Prosecutor General that the investigation had been delayed and the District Prosecutor’s Office, who was in charge of supervising the investigator, had been inactive. 13. On 26 January 2006 a prosecutor of the Office of the Prosecutor General informed the applicant company that the complaint would be dealt with by the Bratislava Regional Prosecutor’s Office. 14. By a letter of 10 February 2006 a prosecutor of the Regional Prosecutor’s Office informed the applicant company of the course of the investigation and confirmed that the proceedings had been delayed.", "He stated that the delays had been caused mainly by the police conducting investigation and that the prosecutor supervising the investigation had used all means possible to eliminate shortcomings in the proceedings. 15. On 20 February 2006 the applicant company complained to the Office of the Prosecutor General about the reaction of the Regional Prosecutor’s Office to its complaint. 16. On 24 April 2006 the Office of the Prosecutor General advised the applicant company that both subordinate levels of the Public Prosecution Service had acted lawfully and no reasons for taking measures against their conduct had been found.", "It accordingly set the complaint aside and informed the applicant company that the course of the proceedings would be monitored by the Office of the Prosecutor General in order to complete the investigation in due time. 17. According to the summary of the course of the proceedings by the Police General Directorate of July 2008, between 4 December 2007 and 16 May 2008 the investigator repeatedly summoned the representative of the applicant company to hear him. The summons could not be served since he had not collected them or he had not appeared before the investigator despite having been informed of them during telephone conversations. 18.", "On 4 June 2008 the representative of the applicant company was heard by the Judicial and Criminal Police in Michalovce. 19. In August 2008 the applicant company complained to the Constitutional Court that its rights to a hearing within a reasonable time had been violated by the conduct of the Office of the Prosecutor General. 20. On 15 October 2008 the Constitutional Court rejected the applicant company’s constitutional complaint on the ground that the criminal proceedings in issue did not concern the applicant company and therefore there was no casual link between the violation alleged and the conduct of a State body in the criminal proceedings.", "As to the requirement of exhaustion of effective remedies it held that, before turning to the Constitutional Court, the applicant company had not requested the Public Prosecution Service to take appropriate measures to rectify shortcomings in the proceedings complained of. It referred to section 34 (1 and 2) of the Public Prosecution Service Act according to which a petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level. A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. Finally the Constitutional Court stated that neither the Constitution nor the Convention guarantee the right to a hearing within a reasonable time in a matter of a criminal complaint. 21.", "On 30 January 2009 the lorry driver was accused before the Bratislava IV District Court. 22. On 2 February 2009 the District Court found the lorry driver guilty of having committed the crime of endangering others under the influence of alcohol. It referred the applicant company with its claim to a civil court. The decision became final on 11 March 2009.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant company complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which 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 24. The Government argued that the applicant company had failed to exhaust the existing domestic remedies in that, before lodging its constitutional complaint, it had not addressed a petition to the Public Prosecution Service in accordance with the Public Prosecution Service Act. Its application should therefore be rejected in accordance with Article 35 §§1 and 4 of the Convention for non-exhaustion of domestic remedies.", "25. The Court observes that the Constitutional Court rejected the applicant company’s complaint under Article 127 of the Constitution on the ground that the criminal proceedings in issue did not concern the applicant company. It also held that the applicant company, before lodging its constitutional complaint, had failed to request the Public Prosecution Service to take appropriate measures to rectify shortcomings in the proceedings complained of. Finally it stated that neither the Constitution nor the Convention guarantee the right to a hearing within a reasonable time in the matter of a criminal complaint. 26.", "However, the Court notes that, before turning to the Constitutional Court, the applicant company had complained several times to the police and the Public Prosecution Service of the length of the proceedings. Namely, in August 2004, May and June 2008 it complained to the Minister of the Interior and the Police General Directorate. In December 2002 it complained to the District Prosecutor’s Office and in January and February 2006 to the Office of the Prosecutor General. The Public Prosecution Service at all three levels dealt with the complaints and informed the applicant company of the results of the examination of the case-file accordingly. On 24 April 2006 the Office of the Prosecutor General advised the applicant company that no measures were to be taken against the lower levels of the Public Prosecution Service and that the case would be monitored by it.", "27. Having regard to the facts above, the Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed. 28. The Court further observes that at the time of the Constitutional Court’s decision the proceedings had been pending for six years and more than eleven months. They ended on 11 March 2009.", "Their overall duration was thus seven years and almost six months. 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 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, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, or Pfleger v. the Czech Republic, no. 58116/00, § 50, 27 July 2004).", "31. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above, or Krumpel and Krumpelová v. Slovakia no. 56195/00, 5 July 2005 and Loveček and Others v. Slovakia, no. 11301/03, 21 December 2010). 32.", "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. 33. In particular, while noting that the applicant company contributed to the length of the proceedings to a certain extent, the Court cannot ignore that there have been several periods of delay attributable to the investigative bodies confirmed by both the police and the supervising Public Prosecution Service. 34. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. The applicant company further alleged that the facts of its case amounted to a violation of Article 13 of the Convention, Article 17 of the Convention and Article 1 of Protocol No. 1 separately and in conjunction with Article 14 of the Convention.", "36. 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. 37. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant company claimed EUR 37,474.11 in respect of pecuniary damage. It did not submit any claim in respect of non-pecuniary damage.", "40. The Government contested the claim stating that there was no causal link between the pecuniary damage claimed and the violation alleged. 41. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. B.", "Costs and expenses 42. The applicant company also claimed EUR 600 for the costs and expenses incurred before the Constitutional Court and the Court. 43. The Government argued that no award should be made to the applicant company since it failed to support its claim with necessary documents. 44.", "According to the Court’s case-law, the applicants are entitled to reimbursement of their 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 absence of any documents supporting the applicant company’s claim for the legal costs, the Court makes no award in this respect (Loveček and Others, cited above, § 71). 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.", "Dismisses the applicant company’s claim for just satisfaction. Done in English, and notified in writing on 5 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliLuis López GuerraDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF SHMUSHKOVYCH v. UKRAINE (Application no. 3276/10) JUDGMENT STRASBOURG 14 November 2013 FINAL 14/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shmushkovych v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ann Power-Forde,Helena Jäderblom,Aleš Pejchal, judges,Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3276/10) 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 Mykhaylo Volodymyrovych Shmushkovych (“the applicant”), on 11 January 2010. 2. The applicant, who had been granted legal aid, was represented by Mr V.M. Yavorskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from the Ministry of Justice.", "3. The applicant alleged that the restriction on the peaceful assembly he had organised was unlawful and disproportionate, and that the judicial decision in the case against him was not pronounced publicly. 4. On 8 December 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court).", "The President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1979 and lives in Odessa. 6.", "The applicant is a vice-president of Zelyonka (Зелёнка), a non-governmental youth organisation, and a member of the Odessa City Council. 7. On 17 March 2009 the applicant, acting on behalf of Zelyonka, notified the Odessa City Mayor and the Head of the Prymorsky District Police Department of Odessa of the organisation’s intention to hold a peaceful assembly (picket) in front of the Odessa City Council building on 19 March 2009 from 11 a.m. to 1 p.m. The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by the Council’s Department of Construction. 8.", "In reply, by a letter of the same date, the Odessa City Council informed the applicant that holding a picket within such short notice was liable to be considered unlawful. The letter indicated that, pursuant to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree – see paragraph 18 below), notification had to be given no later than ten days prior to the meeting in question. It further indicated that the Constitutional Court, in its decision of 19 April 2001 (see paragraph 20 below), had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting. It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in Ukraine and that the 1988 Decree was still in force. The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph 2 of the 1988 Decree and the person responsible held administratively liable under Article 185-1 of the Code of Administrative Offences (the CAO).", "9. The picket took place as planned between 11 a.m. and 1 p.m. on 19 March 2009. According to the applicant, it was peaceful and only a few people took part in it. The police report of the same day noted that about 250 persons had taken part in the picket and that there had been no violation of public order. 10.", "On 4 April 2009 a police officer of the Prymorsky District Police Department of Odessa drew up an administrative offence report, in the applicant’s presence, indicating that on 19 March 2009 the applicant had organised and held a picket in violation of Article 185-1 of the CAO and the decision of the Constitutional Court of 19 April 2001. The applicant signed the report, adding a note to the effect that he considered his actions lawful. The report was referred to a court. 11. On 15 May 2009 the Prymorsky District Court of Odessa (“the District Court”) examined the applicant’s case.", "According to the record of the hearing, provided by the Government, the questioning took place between 1.24 and 1.34 p.m. After that the judge retired to the deliberations chamber. At 2.27 p.m. the judge publicly pronounced judgment and the hearing closed at 2.32 p.m. According to the Government, the full text of the judgment was pronounced publicly and three hours later the court clerk handed a hard copy of the judgment to the applicant’s representative. According to the applicant, the judgment was not pronounced in public but given to his representative in writing three hours after the end of the hearing. 12.", "In that judgment the District Court found that the applicant had violated public order by failing to give the Odessa City Council sufficient advance notification of the picket he had organised. The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him 170 Ukrainian hryvnias (UAH) (17 euros (EUR)). The court held, in particular, that the applicant was in breach of Article 185-1 of the CAO because he had not complied with the ten-day notification requirement. The court based its findings on the 1988 Decree, which provided that an application to hold an assembly had to be lodged with the relevant authority at least ten days in advance. The court further referred to the decision of the Constitutional Court and noted that the exact time-limits for notification were to be regulated by law.", "It further indicated that the 1988 Decree was valid in Ukraine under the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union (see paragraph 19 below). The court also pointed to the fact that the applicant had been informed by the Council that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability. 13. On 25 May 2009 the applicant appealed. He argued that the 1988 Decree, on which the first-instance court had based in its decision, was invalid and contrary to the Constitution.", "In particular, he noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only that the authorities had to be notified of an intention to hold such an assembly. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, whereas the 1988 Decree was not a law of Ukraine. He further noted that at the time of the picket there had been no judicial decision restricting the above-mentioned picket as required by Article 39 of the Constitution. The applicant also contended that his punishment violated Article 11 of the Convention and was not necessary as the picket had been peaceful and had not violated public order. Lastly, he complained that the decision in question had not been pronounced publicly which was contrary to Article 285 of the Code of Administrative Offences (see paragraph 17 below) and to Article 6 § 1 of the Convention.", "14. On 16 July 2009 the Odessa Regional Court of Appeal, ruling in the presence of the applicant and his representative, upheld the decision of the first-instance court. Its ruling contained a summary of the facts of the case, outlined the applicant’s arguments and included an analysis of the pertinent legislation in line with that of the first-instance court. As to the applicant’s argument that it was unnecessary to punish him, the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it. The court did not however address the applicant’s complaint that the first-instance court’s judgment had not been pronounced publicly.", "15. The applicant has not paid the fine. II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 16.", "The relevant provisions of the Constitution read, in so far as relevant, as follows: Article 22 “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.” Article 39 “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand. Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons. 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 ...” Chapter XV Transitional Provisions “1.", "Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...” B. Code of Administrative Offences (the CAO) 17. The relevant provisions of the Code read, in so far as relevant, as follows: Article 185-1 Breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations “A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage. The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.” Article 285 Pronouncement and service of decision regarding an administrative offence “A decision shall be pronounced immediately after the examination of the case. Within three days a copy of the decision shall be given or sent to the person concerned ...” C. The Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the USSR (the 1988 Decree) 18.", "The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia: “The Constitution of the USSR, according to the interests of the people and for strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom of meetings, rallies, street marches and demonstrations. The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings, streets, squares and other places... 1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies... 2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question... 3.", "The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application... 6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.” D. The Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 on temporary application of certain legislative acts of the Soviet Union 19. The resolution provides in particular: “ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.” E. Domestic case-law 1. Decision of the Constitutional Court of Ukraine of 19 April 2001 in a case regarding timely notification of a peaceful assembly 20. In its decision the Constitutional Court held inter alia: “1.", "... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations. In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions... ... the Constitutional Court holds as follows: 1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others.", "Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...” 2. Information note of April 2012 by the Higher Administrative Court of Ukraine on a study and summary of the jurisprudence of administrative courts applying the relevant legislation and deciding cases concerning the exercise of the right to peaceful assembly (meetings, rallies, marches, demonstrations, etc.) in 2010 and 2011. 21. On 21 May 2012 the Plenary of the Higher Administrative Court of Ukraine by its Decree No.", "6 decided to send this note for information to the judges of lower administrative courts. The note mentioned, inter alia, as follows: “...The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect. Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...” 3.", "Decisions of administrative courts 22. In a judgment of the Babushkinsky District Court of Dnipropetrovs’k of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovs’k City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens. 23. In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree.", "The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 20 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others.", "It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention. 24. In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed a judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects.", "The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine. F. Other relevant international and domestic law and practice 25. Other relevant domestic law and practice and the relevant international documents can be found in the case of Vyerentsov v. Ukraine (no. 20372/11, §§ 26, 32, 33 and 38 to 43, 11 April 2013). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 26. The applicant complained under Article 11 of the Convention that the State had unlawfully interfered with his right to freedom of peaceful assembly by fining him for the purportedly late notification of the picket he had organised. That interference, he argued, had not been necessary in a democratic society. “1. Everyone has the right to freedom of peaceful assembly ... 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...” A. Admissibility 27. 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 28. The applicant maintained that the Ukrainian legislation did not have clear and foreseeable legislation in the sphere of freedom of assembly. The judicial practice was inconsistent: some courts applied the 1988 Decree, while others did not, considering that decree invalid and contrary to the Constitution. He referred to examples of the domestic courts’ decisions (see paragraphs 22 and 23 above) in which the courts held that the national legislation did not regulate the procedure for organising and holding peaceful assemblies.", "He noted that the 1988 Decree provided that persons wishing to hold a peaceful assembly had to seek permission, whereas the Constitution provided only for advance notification to the authorities of an intention to hold such an assembly. Therefore it could not be said that the Decree complemented the constitutional provisions on freedom of assembly, since it clearly conflicted with them. Furthermore, Article 92 of the Constitution provided that human rights guarantees had to be regulated exclusively by laws and Article 39 of the Constitution provided that restrictions on the right to peaceful assembly could be established only by law, yet the 1988 Decree was not a law of Ukraine. In the applicant’s opinion, in its decision of 19 April 2001 the Constitutional Court had not accepted the validity of the 1988 Decree concerning the requirement of at least ten days’ advance notification. 29.", "The applicant further considered that Article 185-1 of the CAO did not meet the requirement of quality of law, as it provided for liability for violation of a procedure which had not been defined by the domestic law. 30. He also complained that his punishment had not been necessary because the picket in question had not caused any disturbance of public order and the domestic authorities had not assessed the circumstances of the case but limited themselves to establishing a formal failure to give ten days’ advance notification of the picket. 31. The Government agreed that the domestic court’s finding that the applicant had incurred administrative liability constituted an interference with his right to freedom of peaceful assembly.", "They maintained, however, that the interference had been justified. 32. The Government submitted that the interference had been “prescribed by law”. They argued that under the Court’s case-law the “law” did not necessarily mean an Act of the national parliament, but could include enactments of lower rank than statutes and unwritten law. In a sphere covered by the written law, the “law” was the enactment in force as the competent courts had interpreted it in the light, if necessary, of any new practical developments (Kruslin v. France, 24 April 1990, § 29, Series A no.", "176‑A). They noted that under Article 39 of the Constitution the freedom of assembly could be restricted by the courts and, according to the Constitutional Court decision of 19 April 2001, the executive authorities could coordinate with the organisers of the assemblies details such as time, venue, length and so on, and notification of a planned assembly should be given within a time-limit that would be sufficient for the authorities to decide whether the assembly was legal and, if necessary, whether an application should be made to a court to settle any dispute that had arisen. 33. The Government agreed that formally there was no law regulating relations concerning the freedom of assembly, but maintained that the 1988 Decree was valid and that the Constitutional Court had not declared it invalid. They considered that the rules set forth in the 1988 Decree were sufficiently foreseeable and precise and that the national courts of all levels had accepted the applicability of that decree in the applicant’s case.", "34. They also maintained that the restriction on the applicant’s right to freedom of assembly had pursued the legitimate aim of protecting the rights and freedoms of others and had been necessary, given that the picket had taken place in an area through which many people passed every day with the consequence that an assembly of people was deemed to endanger the life and health of others, including tourists and representatives of different religions, politics and so on. Furthermore, the place was not equipped with the necessary sanitary facilities. They noted, lastly, that during another event organised by the applicant’s organisation there had been a violation of public order and that this had demonstrated the importance of timely notification so that the authorities could make the necessary arrangements to ensure safety and public order. 2.", "The Court’s assessment a) Whether there was an interference 35. The Court considers, as undisputed by the parties, that the applicant’s punishment for organising and holding a peaceful assembly constituted an interference with his right to freedom of peaceful assembly. b) Whether the interference was justified 36. 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. 37.", "The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of law in question. The law should 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 (see, for example, The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49; Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999‑III; Rotaru v. Romania [GC], no.", "28341/95, § 55, ECHR 2000‑V; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I). 38. The Court notes that the fine was imposed on the applicant under Article 185-1 of the CAO, which prescribed a penalty for violations of the procedure for organising and holding demonstrations. Therefore, the interference had a basis in domestic law.", "It has not been disputed that the Code was accessible and the Court does not have reason to doubt that. It remains, therefore, to be determined whether this provision was foreseeable. 39. The Court notes that it is in dispute between the parties whether there was any legal act in Ukraine providing for the “procedure” referred to in Article 185-1 of the CAO. The Government alleged that the “procedure” was envisaged by the 1988 Decree, while the applicant contended that this legal act of the former USSR was no longer valid and applicable in Ukraine as it was contrary to the Constitution.", "40. The Court reiterates that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. The Court notes that it recently examined in detail the existing Ukrainian legal framework concerning procedure for holding peaceful demonstrations in the case of Vyerentsov (Vyerentsov v. Ukraine, cited above, §§ 51 to 57). The Court established in particular that: “54. ...From the materials of the case and the applicant’s submissions it is clear that there is no single view on the applicability of the 1988 Decree and the existence of a clear and foreseeable procedure for organising and holding peaceful demonstrations.", "The practice of the domestic courts also reveals inconsistencies in this sphere [...]. It is true that the Constitution of Ukraine provides for some general rules as to the possible restrictions on the freedom of assembly, but those rules require further elaboration in the domestic law. The only existing document establishing such a procedure is the 1988 Decree, whose provisions are not generally accepted as the valid procedure for holding demonstrations and which provides, as is confirmed in the practice of the domestic courts [...], for a different procedure from the one outlined in the Constitution. Indeed, whilst the Ukrainian Constitution requires advance notification to the authorities of an intention to hold a demonstration and stipulates that any restriction thereon can be imposed only by a court, the 1988 Decree, drafted in accordance with the Constitution of the USSR of 1978, provides that persons wishing to hold a peaceful demonstration have to seek permission from the local administration which is also entitled to ban any such demonstration. From the preamble of the Decree it is clear that it had been intended for a very different purpose, namely for only certain categories of individuals to be provided by the administration with facilities to express their views in favour of a particular ideology, this in itself being incompatible with the very essence of the freedom of assembly guaranteed by the Ukrainian Constitution and the Convention.", "As found by a domestic court [...], demonstrations under the 1988 Decree were considered on the basis of their compatibility with “non-existent constitutions of non-existent subjects”. Therefore, it cannot be concluded that the “procedure” referred to in Article 185-1 of the Code on Administrative Offences was formulated with sufficient precision to enable the applicant to foresee, to a degree that was reasonable in the circumstances, the consequences of his actions (see, mutatis mutandis, Mkrtchyan, ibid.)... 55. The Court further observes that, admittedly, the Resolution of the Ukrainian Parliament on temporary application of certain legislative acts of the Soviet Union refers to temporary application of Soviet legislation and no law has yet been enacted by the Ukrainian Parliament regulating the procedure for holding peaceful demonstrations, although Articles 39 and 92 of the Constitution clearly require that such a procedure be established by law, that is, by an Act of the Ukrainian Parliament. Whilst the Court accepts that it may take some time for a country to establish its legislative framework during a transitional period, it cannot agree that a delay of more than twenty years is justifiable, especially when such a fundamental right as freedom of peaceful assembly is at stake.", "The Court thus concludes that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law” (Vyerentsov v. Ukraine, cited above, §§ 54 and 55). The Court sees no reasons to depart from those conclusions in the present case, which concerns the same legal framework and in which the parties had raised similar arguments to those advanced in the case of Vyerentsov cited above. 41. Having reached the conclusion that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law, the Court does not need to verify whether the other two requirements (legitimate aim and necessity of the interference) set forth in Article 11 § 2 have been complied with. 42.", "Accordingly, there has been a violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 43. The applicant complained that the first-instance court’s judgment convicting him of a breach of the procedure for organising a peaceful assembly was not pronounced publicly. He relied on Article 6 § 1 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 [a] ... tribunal... 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.” A. Admissibility 44. The parties agreed that Article 6 under its criminal head was applicable to the proceedings in question. The Court reiterates its case-law that proceedings concerning minor offences carrying a custodial sentence fall within the criminal limb of Article 6 regardless of whether the person concerned has actually been punished by imprisonment or not (compare Gurepka v. Ukraine, no. 61406/00, § 55, 6 September 2005 and Kornev and Karpenko v. Ukraine, no. 17444/04, § 61, 21 October 2010).", "In the present case the applicant was found guilty of an offence carrying a maximum penalty of fifteen days’ imprisonment. Accordingly, Article 6 applies to the proceedings against the applicant. 45. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 46. The applicant complained that the first-instance court had not pronounced its judgment publicly, but given a paper version of it to his lawyer three hours after the end of the hearing.", "47. The Government noted that the proceedings before the first-instance court had been public. They contested the applicant’s complaint as unsubstantiated and maintained that the impugned judgment had been pronounced publicly. In support of their argument, they submitted the written and audio record of the hearing which included the examination of the case and the pronouncement of the judgment. 48.", "They further submitted that, unlike the other procedural codes, the Code of Administrative Offences did not specify that pronouncement of the decisions had to be public. The reason for this was the insignificance of proceedings concerning administrative offences – which were numerous and often repetitive – which would thus make the requirement of public pronouncement too burdensome. 49. They noted, lastly, that in any event the Court of Appeal had pronounced the final decision in the case publicly and in the presence of the applicant, his lawyer and representatives of the media. The content of its decision repeated the content of the first-instance court judgment.", "The Court of Appeal had referred to the same legal provisions and had reached the same conclusions. Therefore, even assuming that the judgment of the first-instance court had not been pronounced publicly, that shortcoming had been corrected by the Court of Appeal. 50. The applicant disagreed. He stated that neither he nor his lawyer had been present during the pronouncement, if indeed it had taken place, and questioned for whom the decision could have been pronounced in their absence.", "Moreover, the records submitted by the Government showed an interval of almost an hour between the end of the hearing and the alleged pronouncement, which suggested that the judge might have consulted someone before the pronouncement. 51. The applicant agreed with the Government’s submission that the proceedings before the Court of Appeal had been public, but criticised the Court of Appeal for its failure to address his complaint that the first-instance court had not pronounced the judgment publicly. Accordingly, he considered that the appeal proceedings did not compensate for the first-instance court’s failure to pronounce its judgment publicly. 2.", "The Court’s assessment 52. The Court reiterates that the 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, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of 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 Pretto and Others v. Italy, judgment of 8 December 1983, Series A no. 71, p. 11, § 21, and Axen v. Germany, judgment of 8 December 1983, Series A no. 72, p. 12, § 25).", "53. The Contracting States enjoy considerable freedom in the choice of the appropriate means to ensure that their judicial systems comply with the requirements of Article 6 (see Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33). 54. The Court has held in respect of the requirement of the public pronouncement of judgments that in each case the form of publicity given to the “judgment” under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question, having regard to their entirety, and by reference to the object and purpose of Article 6 § 1 (see Pretto and Others, cited above, § 26; Axen, cited above, § 31; and Sutter v. Switzerland, judgment of 22 February 1984, Series A no.", "74, p. 14, § 33). 55. The Court has found no violation where a first-instance court held a public hearing but did not deliver its judgment publicly but the appellate court delivered its decision, which contained a summary of the first-instance court’s judgment and made that judgment final, in public (see Lamanna v. Austria, no. 28923/95, §§ 33‑34, 10 July 2001). 56.", "Turning to the circumstances of the present case, the Court cannot agree with the Government’s contention that, owing to the insignificance of administrative offences, the judicial authorities could be dispensed from the obligation to pronounce their judgments publicly. The Court observes that the proceedings in the applicant’s case concerned an offence which was serious enough to bring the impugned proceedings within the ambit of Article 6. The Government themselves had agreed that Article 6 was applicable to those proceedings. The Article 6 guarantees are therefore fully applicable to the proceedings, including the requirement that judgments be pronounced publicly. 57.", "Furthermore, the Court notes that the parties disagree as to whether the first-instance court had actually pronounced its judgment publicly. It is not in dispute, however, that even if pronouncement of the judgment did take place the applicant and his lawyer were not present at the time, and were not aware of anyone else having been present, but received a copy of the judgment soon after the hearing. In the circumstances of the present case the Court considers that, despite the above-mentioned disagreement between the parties as to the facts, it can decide on the applicant’s complaint even assuming that the first-instance court did fail to pronounce judgment publicly, given that the Court of Appeal pronounced its decision in public and repeated the findings and reasoning of the first-instance court. Although the Court of Appeal did not address the applicant’s complaint about the lack of pronouncement, it was not under an obligation to address all of the applicant’s complaints and the case file contained a record of the first-instance court hearings indicating that pronouncement had taken place. Accordingly, the Court of Appeal could arguably consider that there had been no case to answer.", "In any event, having regard to the proceedings as a whole, the Court finds that the purpose of Article 6 § 1, namely, subjecting court decisions to public scrutiny, thus enabling the public to study the manner in which the courts approach this type of cases, was achieved in the present case by the public delivery of the appellate court’s judgment. There has accordingly been no violation of 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 2,000 euros (EUR) in respect of non-pecuniary damage. 60. The Government contended that the claimed amount was exorbitant and unsubstantiated. 61.", "The Court, deciding in equity, awards the claimed amount in full. B. Costs and expenses 62. The applicant made no claim under this head, so the Court makes no award. C. Default interest 63.", "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 11 of the Convention; 3. Holds that there has been no violation of Article 6 § 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two 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. Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Shevchuk is annexed to this judgment. M.V.C.W. CONCURRING OPINION OF STANISLAV SHEVCHUK, AD HOC JUDGE I voted with the other members of the Court for the finding that there had been a violation of Article 11 of the European Convention on Human Rights in the present case.", "Much to my regret, I do not share all the points in the majority’s opinion and therefore consider myself bound to append the present concurring opinion to the Court’s judgment. The bulk of my concerns relates to the reasoning of the majority expressed in paragraph 40 of the judgment, where the Court cites §§ 54-55 of the judgment in the case of Vyerentsov v. Ukraine (no. 20372/11, 11 April 2013). In my view, the Court should have stopped at the point where it found that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law and not made a policy choice for the national legislature regarding the necessity of a special law on peaceful assembly, which is not the proper exercise of the Court’s judicial function. To start with, I think it appropriate to provide some general remarks on relevant domestic law and judicial practice.", "The right to peaceful assembly is enshrined in Article 39 of the Constitution of Ukraine which envisages a notification procedure and provides, in its second paragraph, that “restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons”. The legislation of Ukraine does not currently have a special law on freedom of assembly. The legislative framework comprises provisions contained in several laws regulating restrictions on that freedom and, in particular, section 38(1)(b)(3) of the Ukrainian Local Self-Government Act, which provides that executive bodies of local councils have delegated powers to resolve, in accordance with the law, issues related to holding meetings, rallies, demonstrations, sports events and so on. [1] Thus far the Constitution of Ukraine does not require that the right of peaceful assembly be dependent upon the enactment of any enabling law. To affirm the opposite implies the acceptance of an old positivistic idea that the provisions of the Constitution on human rights and fundamental freedoms do not have direct effect and require the enactment of “enabling” legislation.", "But in my opinion Article 39, taken in conjunction with Article 8, of the Constitution establishing direct effect of the constitutional provisions is subject to direct application by the courts and everyone may apply to the court directly for the protection of constitutional rights and freedoms on the basis of the Constitution of Ukraine (Article 8 § 3). As concerns the notorious 1988 Decree, as of entry into force of the 1996 Constitution the Decree ceased to be valid law in Ukraine because it directly conflicted with and obviously contravened Article 39: the Decree prescribed a permission procedure while Article 39 of the Constitution refers to advance notification. This view can also be inferred from the Constitutional Court’s decision of 19 April 2001, which did not even mention the 1988 Decree among the applicable legal acts[2] as it did not consider the Decree to be part of valid law in Ukraine. Judicial practice in Ukraine up to a couple of years ago rightly followed the concept of direct effect of Article 39 of the Constitution. The higher courts in Ukraine routinely quashed those few lower courts’ decisions that invoked the 1988 Decree.", "However, the inexplicable re-emergence of the Decree in recent judicial practice prompted the High Administrative Court of Ukraine to articulate a clear position on the matter. In 2012 in a Plenary Decision of the High Administrative Court of Ukraine on the practical application of legislation by administrative courts when considering and deciding cases concerning the exercise of the right to peaceful assembly of 21 May 2012, № 6, the High Court rightly stated: “Since the norms of this Decree establish a procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-government to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...” I assume that there is genuine agreement between the European Court of Human Rights and the national high courts that the 1988 Decree does not constitute valid law either under Ukrainian legislation or for the purposes of Article 11 of the Convention. This means that the core problem with peaceful assemblies in Ukraine is not the lack of an enabling law but the strange twisted judicial practice of some lower courts of applying a piece of Soviet legislation instead of the relevant provisions of the Constitution of Ukraine. That would have been a legitimate point at which to stop in the judgment and leave the issue of legal policy to be considered by the national legislature and judiciary. However, the Court ventured to continue its reasoning in paragraph 40 of this judgment, reproducing §§ 54-55 of the judgment in Vyerentsov v. Ukraine (cited above).", "The position of the High Administrative Court as expressed in the 2012 Plenary Decision and inferred from the 2001 Constitutional Court decision makes it clear that there is a general consensus among the higher courts of Ukraine that the 1988 Decree is inapplicable. Inconsistencies in the domestic practice of the lower courts are a problem that should be cured by the higher courts; this is their natural function in a democratic society. But such inconsistencies are insufficient to conclude that the 1988 Decree is a valid law in Ukraine. Moreover paragraph 55 of the Vyerentsov judgment contains two misunderstandings or misinterpretations by the Court of both the national legislation and the spirit of freedom of assembly as enshrined in Article 11 of the Convention: Nowhere in Article 39 and in Article 92 of the Constitution of Ukraine does there exist any requirement for a special law to be enacted. Article 39 has direct effect and only restrictions in the interests of national security or public order need to be clearly provided for in an Act of the Ukrainian Parliament.", "At the same time neither Article 39 nor Article 92 prohibits Parliament from enacting such a special law on peaceful assemblies on condition that it does not restrict the right of individuals under Article 39 of the Constitution of Ukraine, but serves as a guarantee of that right and at the same time provides the relevant State authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others. But the decision to enact a special law or leave the matter for the judicial practice to develop is within the delicate sphere of national legal policy choices. The power of the State in such a delicate realm as fundamental freedoms is strictly limited to what is necessary in democratic society, meaning that the State may enact strongly justified restrictions to be invoked under clearly prescribed circumstances. But it cannot legitimately regulate the very enjoyment of such freedoms. In my view, when confronted with the issue of personal freedoms the State should abstain from regulating these and limit itself to regulating such restrictions as are necessary in a democratic society.", "I see a genuine fallacy in relating the violation of Article 11 of the Convention in the present case to the lack of a legislative enactment regulating the freedom of assembly. We should bear in mind the intricate nexus between freedom of assembly and freedom of expression, and the internal logic of both freedoms does not require any enabling laws to be effective in a democratic society. In this connection I fully subscribe to the opinion of the commissaire du gouvernement in the French Conseil d’État case of Benjamin (1933): “la liberté est la règle, la restriction de police l’exception.”[3] The Court should be cautious when making policy choices for the national authorities and should take into consideration the domestic context. For even good policy choices made by the Court outside the domestic context may produce intended or unintended results inflicting irreparable harm on a nascent democratic society. This raises a conceptual issue of a more general nature: the limits of the Court’s power to review domestic law and make policy choices in place of the competent national authorities.", "The legitimacy of an international tribunal established by the mutual consent of the Contracting Parties depends on the logic and argumentation of each judgment and, consequently, it might fail if the Court intentionally or unintentionally fails to observe the limits of its judicial function. This is so even if such overstepping is motivated by sound reasons of legal policy and genuine endeavour to support a Contracting State in complying with the Convention. If the Court opts to take the place of the national authorities in making policy choices, this should be an act of last resort that is justified by strong compelling reasons. This approach derives from the supplementary and subsidiary nature of the Court’s role in protecting the rights and freedoms guaranteed by the European Court of Human Rights. For it is the national legal system, through its political, administrative and judicial authorities, which bears the primary responsibility in this sphere.", "This subsidiarity and complementarity of the Court’s role emanate not only from the express provisions of the Convention relating to the exhaustion of all domestic and effective domestic remedies but also from the Court’s jurisprudence. These serve as safeguards against turning the Court into a fourth-instance supreme tribunal across Europe. As was aptly uttered by Professor Laurence R. Helfer in this regard[4], “Normatively, subsidiarity helps to legitimize ECtHR review by providing a measure of deference to national actors in situations where such deference is appropriate – such as identifying the content of and values underlying national laws and practices or choosing among a range of Convention-compatible implementation measures.” While a substantive review of domestic legislation and advice on measures required to remedy some persisting problems may be relevant and unavoidable in certain circumstances, such a review ought to be handled with the utmost care because recourse to it will affect many issues of national legal policy and democratic process and should therefore be properly justified by compelling reasons that include the nature of the Convention right in issue, its importance for the proper functioning of democratic institutions in the respondent State, the systemic character of problems that give rise to an influx of repetitive cases before the Court, the inability of national authorities to tackle the problems – this being evident from the case files, the seriousness of the infringement complained of and the clear danger to democratic society in that State. The proper application of an abstract review will thus depend on the importance attached to each of these factors. In accordance with the Court’s case-law on the interpretation and application of domestic law, while its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.", "Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Oleksandr Volkov v. Ukraine (2013), § 135; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190-91, ECHR 2006‑V; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005‑VI). According to the Court’s settled case-law in the following cases, there were assumed to be strong reasons for the Court to review and assess national legislation in abstracto and indicate concrete types of individual and/or general measures that should be taken by the national authorities: - the Court is required to verify whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Oleksandr Volkov, cited above, § 135); - pilot judgments, where, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation that gave rise to the finding of a violation (see Broniowski v. Poland [GC], no.", "31443/96, § 194, ECHR 2004‑V, and Stanev v. Bulgaria [GC], no. 36760/06, §§ 255-58, ECHR 2012); - when the circumstances of the case taken in the context of the general development of democratic society in a respondent State give grounds for doubt as to whether there is any real choice as to the measures required to remedy the violations of the applicant’s Convention rights and there is an urgent need to put an end to the violations of the Convention (see Oleksandr Volkov, cited above; Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010; and Del Río Prada v. Spain (2013)). In such exceptional cases, upon a review of domestic law and political context, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate such measures (see Assanidze v. Georgia [GC], no. 71503/01, § 202-03, ECHR 2004‑II; Aleksanyan v. Russia (208), §§ 239-40; and Fatullayev, cited above §§ 176-77), including those aimed to prevent further or continuing violations.", "Overstepping the limits of its judicial function by imposing policy choices on the national authorities would set the Court on a slippery slope and gradually strip it of any immunity from charges of political involvement. Therefore there is a strong case for clearly calibrating the proper balance between the justified vigorous stance of the Court in protecting rights and freedoms guaranteed by the Convention that may require more involvement of the Court in national policy decision-making and deference to national authorities in making concrete policy choices. I believe that the general approach of the Court should remain within the domain articulated by its case-law. In exercising its supervisory function, the Court’s task is not to take the place of the national legislature or courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover v. Germany (no. 2) [GC], nos.", "40660/08 and 60641/08, § 105; ECHR 2012; Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010). And where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its own view for that of those authorities (see Von Hannover, cited above, § 107; MGN Limited v. the United Kingdom, no. 39401/04, § 150-55, 18 January 2011; and Palomo Sánchez and Others v. Spain [GC], nos.", "28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). The Court should not assume the role or take the place of the competent national authorities, especially when hard policy choices are at stake. In this judgment as well as in Vyerentsov v. Ukraine (cited above) the Court, in my opinion, made a clear policy choice: Ukraine should enact a special law on peaceful assemblies. This question has been the subject of heated debate during the last twenty years in Ukraine. Many voices have been raised against the introduction of such a law and a number of bills on the matter have been tabled before Parliament.", "The Vyerentsov judgment reignited the debate but the opponents of the regulation of the freedom of assembly by a special law seem to have been defeated by the Court’s inappropriate intervention. I am not in a position to assess the bills tabled before the Ukrainian Parliament, but I am mindful that this moment could be seized by some political forces within Ukraine to introduce such regulation of the freedom of assembly that might produce devastating results for civil society and the democratic process in Ukraine. Against that background, I fully support the finding of a violation in this case but I respectfully dissent from the aforementioned paragraphs 54-55 of the Vyerentsov judgment reproduced in paragraph 40 of the present judgment. [1]. In the present case the citation from Vyerentsov judgment omitted the final sentence of § 54: “Nor do the procedures introduced by the local authorities to regulate the organisation and holding of demonstrations in their particular regions appear to provide a sufficient legal basis, for the same reason – there was no general Act of Parliament on which such local documents could be based and the domestic courts moreover doubted the validity of such local decisions”.", "Indeed this passage does not reflect the current legislative framework: local government operates under powers delegated in accordance with section 38(1)(b)(3) of the Ukrainian Local Self-Government Act, which, jointly with Article 39 of the Constitution and other laws regulating specific restrictions on the freedom of assembly, serve as a valid and sufficient legal basis (see, mutatis mutandis, Cisse v. France, no. 51346, §§ 41-43, ECHR 2002-III). [2]. See also the review of decisions of the administrative courts in §§ 35-36 of the judgment in Vyerentsov v. Ukraine (cited above). [3].", "19 May 1933 - Benjamin - Rec. Lebon p. 541 [4]. Laurence R. Helfer “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime”, 19 The European Journal of International Law (2008) 125, at pp. 128-29." ]

[ "SECOND SECTION CASE OF KÖK v. TURKEY (Application no. 42289/11) JUDGMENT STRASBOURG 28 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Kök v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ledi Bianku, President,Paul Lemmens,Jon Fridrik Kjølbro, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 42289/11) 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 Emre Kök (“the applicant”), on 2 June 2011.", "2. The applicant was represented by Ms T. Çelikyürek, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. On 21 November 2016 the complaints concerning the alleged independence and impartiality of the Supreme Military Administrative Court, the fairness of the proceedings before that court on account of the applicant’s inability to access the classified documents submitted by the Ministry of Defence, and the non-communication of the written opinion of the public prosecutor were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1984 and lives in Afyonkarahisar. 5. The applicant, who was a student in the military school, was dismissed from his school based on classified investigation reports.", "The applicant then initiated proceedings against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decision. 6. Relying on the classified investigation reports, and the written opinion of the public prosecutor, which were not communicated to the applicant, on 9 January 2008 the Supreme Military Administrative Court dismissed the applicant’s request. On 10 November 2010 the applicant’s request for rectification was also rejected by the Supreme Military Administrative Court. II.", "RELEVANT DOMESTIC LAW 7. A description of the domestic law at the material time can be found in Yavuz v. Turkey ((dec.), no. 29870/96, 25 May 2000, and Tanışma v. Turkey (no. 32219/05, §§ 29-47, 17 November 2015)). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 8. Relying on Article 6 § 1 of the Convention, the applicant complained that he had been denied a fair hearing by an independent and impartial tribunal since the two military officers who sat on the bench of the Supreme Military Administrative Court remained under the hierarchy of the military authorities and did not enjoy the same judicial guarantees as the other military judges. He further complained about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence to that court in the course of the proceedings and the non-communication to him of the written opinion of the public prosecutor submitted to the court. A. Concerning the independence and impartiality of the Supreme Military Administrative Court 1.", "Admissibility 9. The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Supreme Military Administrative Court must be rejected for failure to exhaust domestic remedies. In this connection, they maintained that the applicant failed to lodge a motion, requesting the disqualification of the military judges. 10. The Court observes that the establishment and composition of the Supreme Military Administrative Court was expressly prescribed by the Constitution and law.", "Accordingly, any objection filed by the applicant regarding the composition of the court for the simple reason that the judges sitting on the bench were members of the army would have been doomed to failure (see, mutadis mutandis, Satık v. Turkey (no. 2), no. 60999/00, § 39, 8 July 2008, and Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000). 11.", "Thus, such a request before the national authorities would not have remedied the situation complained of. It follows that this objection should be dismissed. The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits 12. The Court reiterates that it has already examined a similar grievance in the case of Tanışma v. Turkey (no. 32219/05, §§ 68-84, 17 November 2015) and found a violation of Article 6 § 1 of the Convention. It finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.", "13. There has therefore been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Court. B. Concerning the complaints regarding access to the classified documents and the non-communication of the written opinion of the public prosecutor 14. The applicant complained about the fairness of the proceedings before the Supreme Military Administrative Court on account of his inability to have access to the classified documents submitted by the Ministry of Defence and the non-communication of the written opinion of the public prosecutor.", "15. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible. 16. Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine these complaints (see, among other authorities, Incal v. Turkey, 9 June 1998, § 74, Reports of Judgments and Decisions 1998‑IV; Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003; and Yeltepe v. Turkey, no.", "24087/07, § 33, 14 March 2017). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 17. The applicant claimed 500,000 euros (EUR) in respect of pecuniary and EUR 500,000 in respect of non-pecuniary damage.", "18. The Government contested the claims. 19. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made under this head.", "As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant. B. Costs and expenses 20. The applicant also claimed 384 Turkish liras (TRY) (approximately EUR 95) for the costs and expenses incurred before the Court. In this respect, he submitted receipts for postal expenses.", "21. The Government contested the claim. 22. Regard being had to the documents in its possession and to its case-law, the awards the requested amount in full (EUR 95) in respect of costs and expenses. C. Default interest 23.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the Supreme Military Administrative Court; 3. Holds that it is not necessary to consider the applicant’s remaining complaints raised under Article 6 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 95 (ninety five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıLedi BiankuDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ALAPAYEVY v. RUSSIA (Application no. 39676/06) JUDGMENT STRASBOURG 3 June 2010 FINAL 04/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Alapayevy 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 11 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39676/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Lidiya Alapayeva and Ms Tamila Alapayeva (“the applicants”), on 12 September 2006. 2. The applicants were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 17 June 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of it 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 President of the Chamber acceded to the Government's request not to make the documents from the criminal investigation file deposited with the Registry in connection with the application publicly accessible (Rule 33 of the Rules of Court). 4. The Government objected to the joint examination of the admissibility and merits of the application and to the application of Rule 41 of the Rules of Court.", "Having considered the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1961 and 1984, respectively. They live in the village of Sernovodsk, in the Sunzhenskiy District, the Chechen Republic.", "6. The first applicant is the mother and the second applicant is the wife of Mr Salambek Alapayev, born in 1982. A. Disappearance of Salambek Alapayev 1. The applicants' account 7.", "At the material time the first applicant, Salambek Alapayev, the second applicant and their son, and Salman Alapayev (Salambek Alapayev's 75-year old grandfather, now deceased) lived together at 24, Demiyana Bednogo Street, in the village of Sernovodsk, in the Sunzhenskiy District, the Chechen Republic. 8. Salambek Alapayev was employed in a private company trading in medical equipment, “Med-Intel”, until November 2004. The company's seat was in Nalchik, in the Kabardino-Balkariya Republic. 9.", "On the night of 26 December 2004 the family, except the first applicant, who was attending funerals in another village, was sleeping in their house at the above address. At about 3 a.m. on 27 December 2004 the second applicant and Salambek Alapayev were woken up by a noise coming from the front door. A group of eight to twelve armed men in camouflage uniforms burst into the house. They were not wearing masks and were speaking Russian. They neither introduced themselves nor presented any documents.", "The second applicant inferred that they were servicemen. 10. Three servicemen started kicking Salman Alapayev, while four others grabbed Salambek Alapayev and started beating him with rifle-butts and their boots. The servicemen ordered the second applicant to stay in her room; two of them guarded her. From there the applicant heard the sound of her husband being beaten and begged the servicemen to stop.", "She also heard the intruders binding Salambek Alapayev's hands with adhesive tape. The servicemen ordered the second applicant to fetch her husband's passport. When she brought it over, together with his driving licence, they took it away. After that the servicemen conducted a quick search of the house. They did not provide any explanation for their actions or reply to her questions as to where and why they were taking her husband.", "11. Having spent a short time in the applicant's house, the intruders went outside, dragging Salambek Alapayev, bound and barefoot, with them. Despite the servicemen's orders, the second applicant followed them outside. At the front door she saw Salman Alapayev lying on the ground. He was bleeding and unconscious.", "At the entrance to the house the servicemen had left the claw hammer with which they had taken the door off its hinges. Outside the second applicant saw the servicemen leave with Salambek Alapayev in a grey UAZ vehicle and a white Gazel vehicle. The abductors' vehicles passed through the roadblock located at the exit from the village to the Baku motorway. 12. A number of neighbours witnessed the abduction of Salambek Alapayev.", "In particular, at about 3 a.m. on 27 December 2004 L.U. and M.T. saw an APC (armoured personnel carrier) and other vehicles stop at the applicants' house. Both women heard screaming and noise coming from the house, and people speaking Russian. At about 3 a.m. on 27 December 2004 Kh.Kh., who was at her grandmother's house at 22, Demyana Bednogo Street, and Zul.A., another neighbour, were woken up by noise coming from the applicants' house.", "When they rushed outside, they saw Salambek Alapayev, being taken away tied up and barefoot by unidentified persons. The abductors had several vehicles, including a grey UAZ vehicle and a white Gazel vehicle. The applicants' neighbour Zur.A., who was woken up at about 3 a.m. on 27 December 2004 by noise coming from the applicants' house, tried to go outside but was prevented from doing so by several armed men in camouflage uniforms and masks who ordered her to get back inside her house. 13. Shortly after the armed men had left, the neighbours gathered at the applicants' house.", "There they saw that the front door had been forced and that Salman Alapayev was lying on the ground, unconscious and bleeding. Zal.A. and Z.B. immediately went to the local department of the interior and alerted the police officers about the abduction of Salambek Alapayev. The servicemen on duty at the entry to the ROVD told them that their vehicles had not left for any operations on that night and that no one had been brought to the ROVD.", "At the women's request the servicemen called the Achkhoy-Martanovskiy District Department of the Interior. The latter body informed them that they had no relevant information. 14. The applicants have had no news of Salambek Alapayev since 27 December 2004. 15.", "The above description of the events is based on written statements by the first and second applicants made on 5 February and 1 March 2006 respectively; interview transcripts of the first and second applicants' interviews by their representatives, conducted on 20 February and 11 May 2005 respectively; written statements by Zul.A., Zal.A., Zur.A. and Z.B., made on 4 February 2006, and written statements by L.U., M.T. and Kh.Kh., made on 5 February 2006. 2. Information submitted by the Government 16.", "The Government submitted that on the night of 27 December 2004 unidentified persons wearing camouflage uniforms had abducted Salambek Alapayev from his house at 24, Demyana Bednogo Street, Sernovodsk, and had taken him to an unknown destination. B. The search for Salambek Alapayev and the investigation 1. The applicants' account 17. Since 27 December 2004 the applicants have repeatedly applied in person and in writing to various public bodies.", "They have been supported in their efforts by the NGO SRJI. In their letters to the authorities the applicants referred to their relative's abduction and asked for assistance and details of the investigation. These enquiries mostly remained unanswered, or purely formal replies were given stating that the applicants' requests had been forwarded to various prosecutors' offices. The applicants submitted some of the letters to the authorities and the replies to the Court, which are summarised below. 18.", "On 28 December 2004 investigators of the Sunzhenskiy District Department of the Interior (the ROVD) arrived at the applicants' house. They conducted a crime scene examination and seized the claw hammer left by the abductors. 19. On the same day the first applicant complained about the abduction of Salambek Alapayev to the Security Council of the President of the Chechen Republic. 20.", "On 30 December 2004 the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) forwarded the first applicant's complaint about her son's abduction to the Achkhoy-Martanovskiy district prosecutor's office (“the district prosecutor's office”) for examination. 21. On 30 December 2004 the district prosecutor's office instituted an investigation into the abduction of Salambek Alapayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The criminal case file was given number 59000. 22.", "On 16 February 2005 the first applicant wrote to the district prosecutor's office. In her letter she described in detail the circumstances of her son's abduction by a group of armed men in camouflage uniforms. She also stated that the abductors, who had arrived in military vehicles, had beaten her relatives and refused to provide any reasons for her son's apprehension. The applicant also pointed out that on the night of the abduction a number of her neighbours had witnessed the vehicles pulling up to her house and leaving with Salambek Alapayev. Lastly, she stated that her numerous complaints to various law enforcement authorities had failed to produce any results.", "23. On 26 March 2005 the first applicant wrote to the prosecutor of the Chechen Republic. She described in detail the circumstances of her son's abduction by a group of armed men in camouflage uniforms, who had arrived in military vehicles, had beaten her relatives and refused to provide the reason for her son's apprehension. The applicant also pointed out that on the night of the events a number of her neighbours had witnessed the vehicles pulling up to her house and leaving with Salambek Alapayev. She further stated that while her son had been working in Nazran, the flat of colleagues of his in that town had been robbed.", "Salambek Alapayev had allegedly told the first applicant that he had succeeded in obtaining some unspecified information on that incident. The first applicant suggested that that information might have been relevant for the investigation. Lastly, she stated that her numerous complaints to various law enforcement bodies had failed to produce any results. 24. On 17 June 2005 the republican prosecutor's office forwarded the first applicant's complaint about her son's abduction to the district prosecutor's office for inclusion in criminal case no.", "59000. 25. On 30 June 2005 the Chechen department of the Federal Security Service (“the Chechen department of the FSB”) replied to the first applicant's request. The letter stated that they were undertaking unspecified measures to identify Salambek Alapayev's abductors and establish his whereabouts. 26.", "On 8 July 2005 the first applicant wrote to the Chechen department of the FSB. She described in detail the circumstances of her son's abduction by a group of armed men in camouflage uniforms. She also stated that the abductors, who had arrived in military vehicles, had beaten her relatives and refused to provide the reason for her son's apprehension. The applicant also pointed out that on the night of the events a number of her neighbours had witnessed the vehicles pulling up to her house and leaving with Salambek Alapayev. Lastly, the applicant stated that her numerous complaints to various law enforcement bodies had not produced any results.", "27. On 9 July 2005 the Chechen department of the FSB replied to the first applicant that her complaint about her son's abduction had been forwarded to the district prosecutor's office for examination. 28. On 16 July 2005 the republican prosecutor's office informed the first applicant that her complaint to the Chechen department of the FSB had been included in the criminal case file. The letter also stated that operational-search measures aimed at solving the crime were under way.", "29. On 3 August 2005 the first applicant wrote to the district prosecutor's office. She described in detail the circumstances of her son's abduction by a group of armed men in camouflage uniforms. She also stated that the abductors, who had arrived in military vehicles, had beaten her relatives and refused to provide the reason for her son's apprehension. The applicant also pointed out that on the night of the events a number of her neighbours had witnessed the vehicles pulling up to her house and leaving with Salambek Alapayev.", "Finally, the applicant stated that her numerous complaints to various law enforcement bodies had failed to produce any results. 30. On 14 October 2005 the applicants' representatives wrote to the district prosecutor's office. They requested information on the progress and the results of the investigation in criminal case no. 59000 and the investigative measures undertaken by the authorities.", "They also asked that the first applicant be granted the status of a victim in the criminal proceedings and be allowed to familiarise herself with the case file. 31. On 29 December 2005 the applicants' representatives filed a repeated request to the district prosecutor's office. They asked for information concerning the progress and the results of the investigation in criminal case no. 59000 and the investigative measures undertaken by the authorities.", "They also requested the authorities to grant the first applicant the status of a victim in the criminal proceedings and to provide for her access to the case file. 32. On 11 January 2006 the district prosecutor's office granted the first applicant victim status in connection with the proceedings in criminal case no. 59000. 33.", "On 2 February 2006 the first applicant wrote to the prosecutor of the Chechen Republic. She again described in detail the circumstances of her son's abduction and the ill-treatment of her relatives by the abductors. 34. On 13 February 2006 the republican prosecutor's office forwarded the first applicant's complaint to the district prosecutor's office for examination. 35.", "On 28 February 2006 the republican prosecutor's office informed the first applicant that on an unspecified date the investigation in criminal case no. 59000 had been suspended. 36. On 1 March 2006 the district prosecutor's office informed the first applicant that their investigative measures had failed to establish the whereabouts of her son, but that operational-search measures aimed at solving the crime were under way. 37.", "On 17 January 2007 the first applicant complained to the district prosecutor's office about the unlawfulness of the suspension of the investigation in criminal case no. 59000. She requested the authorities to undertake additional investigative measures to establish the whereabouts of Salambek Alapayev. 38. On 20 January 2007 the district prosecutor's office replied to the applicant, stating that they had allowed her complaint in full and decided to resume the investigation in criminal case no.", "59000. 39. On 28 February 2007 the district prosecutor's office informed the second applicant that on 28 February 2007 the investigation in criminal case no. 59000 had been suspended owing to the failure to establish the perpetrators. 40.", "On 9 July 2007 the Achkhoy-Martan district department of the Federal Security Service informed the first applicant that her complaint about her son's abduction had been forwarded to the district prosecutor's office for examination. 2. Information submitted by the Government 41. Following the second applicant's complaint to the ROVD, on an unspecified date the district prosecutor's office instituted an investigation into the abduction of Salambek Alapayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 59000.", "42. On 27 December 2004 an investigator of the ROVD examined the crime scene and seized the claw hammer left by the abductors. The claw hammer was appended to the criminal case file materials. (a) Witnesses interviewed by the investigators 43. On 27 December 2004 an investigator of the ROVD took a written statement from the second applicant.", "She stated that at about 3 a.m. on 27 December 2004 she had been woken up by a noise coming from the front door. Shortly after she had sent Salambek Alapayev to check what was going on, a group of armed men in camouflage uniforms and without masks had burst into the room. Having pushed the second applicant aside, they had grabbed Salambek Alapayev and started beating him up. They had tied him up with adhesive tape and dragged him outside, where several vehicles had been parked. The second applicant had been able to describe two of them from memory – a grey UAZ vehicle and a white Gazel vehicle.", "The armed men had left in those vehicles, taking Salambek Alapayev with them. 44. On the same date the investigator collected written statements from the applicants' neighbours, A.B., Z.B. and M.K. According to an incomplete and partly illegible copy of A.B.", "'s statement, he had not witnessed the abduction but had heard that the abductors had come in several military vehicles, including a UAZ vehicle. According to Z.B. 's statement, at about 3 a.m. on 27 December 2004 she had heard noise coming from the applicants' house; after a while the second applicant had run to her to tell her that Salambek Alapayev had been abducted. M.K. gave a similar statement.", "45. On 6 February 2005 an investigator of the ROVD interviewed as witnesses the first applicant and her neighbour L.U. The first applicant stated that upon her return on 27 December 2004 from funerals in another village the second applicant had told her that at about 3 a.m. on the previous night a group of eight to ten armed men in camouflage uniforms had forced the front door to their house, had tied Salambek Alapayev up with adhesive tape and had taken him away, leaving in several vehicles. According to a copy of L.U. 's interview record, at about 3 a.m. on 27 December 2004 she had been woken up by the noise of vehicles moving on her street.", "Having looked outside the window, L.U. had seen a white Gazel vehicle and an APC, which had stopped outside her house for a while and had then moved on. The men inside the vehicles had spoken Russian. L.U. had inferred that they were soldiers.", "The vehicles had left some fifteen minutes later and L.U. had subsequently learnt that those soldiers had abducted Salambek Alapayev. 46. By a decision of 11 February 2005 the district prosecutor's office granted the second applicant victim status in connection with the proceedings in case no. 59000 and interviewed her.", "According to a barely legible copy of the interview record, the second applicant submitted that at about 3 a.m. on 27 December 2004 a group of armed men in camouflage uniforms had burst into their house, had beaten her husband up, tied him up with adhesive tape, taken his identity card and taken him away. The abductors had come in a white Gazel vehicle, a grey UAZ vehicle and an APC, none of which had registration plates. 47. Between 15 January and 22 February 2005 an investigator of the district prosecutor's office interviewed as witnesses several residents of Sernovodsk. Insofar as the barely legible copies of the relevant interview records may be deciphered, those witnesses stated that they had not witnessed the abduction but had learnt from their fellow villagers that at about 3 a.m. on 27 December 2004 a group of about ten armed men speaking Russian and driving a white Gazel, a grey UAZ vehicle and an APC without licence plates had abducted Salambek Alapayev from his home at 24, Demyana Bednogo Street.", "48. On 24 February 2005 the prosecutor's office of the town of Nalchik interviewed as witnesses R.D. and Z.N., a deputy director and a personnel manager of the company “Med-Intel”, where Salambek Alapayev had been employed. R.D. and Z.N.", "stated that the applicants' relative had been employed in that company as a sales manager and that he had not had any conflicts at work. 49. Between 11 February and 9 April 2005 investigators of the ROVD and the district prosecutor's office interviewed as witnesses a number of residents of Sernovodsk. According to copies of the witness' interviews and in so far as those copies are legible, the witnesses submitted that they had not witnessed the abduction of the applicants' relative but had learnt on 27 and 28 December 2004 from their fellow villagers that at about 3 a.m. on 27 December 2004 a group of eight to ten armed men in camouflage uniforms, who had arrived in a grey UAZ vehicle, a white Gazel vehicle and an APC without licence plates, had abducted Salambek Alapayev from his home at 24, Demyana Bednogo Street in Sernovodsk. 50.", "Between 31 January and 11 February 2007 the district prosecutor's office interviewed as witnesses other residents of Sernovodsk. According to copies of their interview records, on 27 December 2004 the witnesses had learnt from their fellow villagers and Salambek Alapayev's relatives that on the previous night a group of eight to twelve armed men in camouflage uniforms had burst into the applicants' house. The intruders had been speaking Russian. They had not introduced themselves and had taken Salambek Alapayev to an unknown destination. The armed men had arrived in a grey UAZ vehicle, a white Gazel vehicle and an APC.", "(b) Further investigative steps 51. On unspecified dates unspecified authorities inspected checkpoints nos. 186, 188 and 190; no objects were seized during the inspection. 52. On unspecified dates the investigating authorities instructed their colleagues in the Chechen Republic and several other regions in Russia to verify whether officers of any law-enforcement authorities had arrested Salambek Alapayev or remanded him in custody or whether his body had been discovered.", "No relevant information was received as a result of those investigative steps. 53. On unspecified dates the investigating authorities requested various authorities, including the prosecutor of military unit no. 20102 and the military commander of the Achkhoy-Martanovskiy District, to inform them if any special operations had been conducted in Sernovodsk on 26-27 April 2004 and whether Salambek Alapayev had been detained by any law-enforcement authorities under their command. No relevant information was received.", "54. On 20 January 2007 the district prosecutor's office granted the first applicant's request and resumed the investigation in case no. 59000. 55. According to the Government, the investigation into the abduction of the applicants' relative was pending.", "(c) The Court's request for a copy of case file no. 59000 56. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 59000, providing only a copy of the crime scene inspection report, a decision to grant the second applicant victim status and copies of the witness' interview records summarised in paragraphs 43-50 above. Most of the documents furnished by the Government were either partly or fully illegible.", "The Government submitted that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure and would run counter to the interests of unidentified participants in the criminal proceedings. (d) Documents from the case file concerning the robbery of Salambek Alapayev's colleagues 57. The Government furnished copies of interview records of victims and witnesses in criminal case no. 33706 opened into the robbery of Salambek Alapayev's colleagues from the company “Med-Intel” in Nazran, Ingushetiya. From those documents it follows that on 29 November 2004 two armed persons wearing camouflage uniforms without insignia and masks had burst into the flat rented by S.D.", "and A.T. and had taken their money, personal belongings and their car. II. RELEVANT DOMESTIC LAW 58. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).", "THE LAW I. THE GOVERNMENT'S OBJECTION REGARDING NON‑EXHAUSTION OF DOMESTIC REMEDIES A. The parties' submissions 59. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Salambek Alapayev had not yet been completed.", "They further argued that it had been open to the applicants to challenge before higher-ranking prosecutors and courts any acts or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy. They also pointed out that the applicants had not lodged a claim for compensation for non‑pecuniary damage under Articles 1069-70 of the Civil Code. 60. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile.", "With reference to the Court's practice, they argued that they were not obliged to apply to civil courts in order to exhaust domestic remedies. B. The Court's assessment 61. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).", "62. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely, civil and criminal remedies. 63. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77).", "In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government's objection in this regard is thus dismissed. 64. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities immediately after the kidnapping of Salambek Alapayev and that an investigation has been pending since 30 December 2004. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.", "65. 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 applicants' complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 66.", "The applicants complained under Article 2 of the Convention that their relative had been deprived of his life by the servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties' submissions 67. The Government contended that the domestic investigation had obtained no evidence that the applicants' relative had been abducted or killed by State agents or that the State authorities had conducted a special operation in Sernovodsk on the night of his abduction. There had been no eyewitnesses to the abduction, apart from the second applicant. The majority of the persons interviewed by the investigation had testified that they had learnt about the abduction of the applicants' relative from third parties.", "Before the domestic authorities the applicants themselves had suggested that their relative's abduction might have been connected to his attempts to investigate the robbery of his colleagues. Although the robbers of Salambek Alapayev's colleagues had also been wearing camouflage uniforms and masks and had been armed, the applicants had not suggested that they were State agents. Lastly, there had been inconsistencies in the applicants' and witnesses' submissions. In particular, whilst in her written statement the second applicant stated that the abductors had come in a UAZ vehicle and a Gazel vehicle, in her statement appended to the application form she had mentioned a Gazel vehicle and two UAZ vehicles. At the same time, witnesses interviewed by the authorities had referred to a UAZ vehicle, a Gazel vehicle and an APC.", "68. The Government further argued that the investigation into the disappearance of Salambek Alapayev was being conducted by an independent authority which had checked various versions of the abduction, interviewed numerous witnesses and made numerous requests for information. The applicants had been duly notified of the developments in the investigation. Although the investigation had been suspended on several occasions, it did not mean that it was ineffective. 69.", "The applicants argued that Salambek Alapayev had been detained by State agents and should be presumed dead in the absence of reliable news of him for several years. They pointed out that the Government did not dispute that their relative had been detained by about twelve persons wearing uniforms, speaking Russian and driving a UAZ and a Gazel vehicle. Contrary to the Government's assertion, the second applicant and Zul.A. had eyewitnessed the abduction of Salambek Alapayev. The fact that the applicants had informed the investigating authorities about the robbery of Salambek Alapayev's colleagues had simply meant that they had been cooperating with the investigation by furnishing information which might have been relevant for the investigation.", "Lastly, they invited the Court to draw conclusions from the Government's failure to submit a copy of the entire case file no. 59000 to the Court. 70. The applicants further submitted that the investigation into their relative's abduction had not met the effectiveness and adequacy requirements laid down by the Court's case-law. In particular, the authorities had failed to take all the necessary investigative steps, such as looking for tyre tracks, foot- or fingerprints during the crime scene inspection.", "Despite the evidence of involvement of State agents in the abduction, no representatives of the State had been interviewed in the course of the investigation. The witness' statements produced by the Government were almost identical in content, which showed the superficial nature of the interviews. The applicants had not been properly informed about the progress of the investigation. B. The Court's assessment 1.", "Admissibility 71. 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. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 65 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2.", "Merits (a) The alleged violation of the right to life of Salambek Alapayev (i) General principles 72. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV). (ii) Establishment of the facts 73. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no.", "69481/01, §§ 103‑109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 74. The applicants alleged that at about 3 a.m. on 27 December 2004 their relative, Salambek Alapayev, had been abducted by servicemen and had then disappeared.", "They invited the Court to draw inferences as to the well-foundedness of their allegations from the Government's failure to provide the documents requested from them. They submitted that the second applicant and several other persons had witnessed their relative's abduction and enclosed their written statements to support that submission. 75. The Government conceded that Salambek Alapayev had been abducted by unidentified armed men on 27 December 2004. However, they denied that the abductors had been servicemen, referring to the absence of conclusions from the ongoing investigation.", "76. The Court notes that despite its requests for a copy of the investigation file into the abduction of Salambek Alapayev, the Government refused to produce most of the documents from the case file, referring to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)). 77.", "In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government's conduct in respect of the well-foundedness of the applicants' allegations. 78. Contrary to the Government's assertion, the Court does not find any major inconsistencies in the description of the events of 27 December 2004 by the applicants and witnesses. In particular, in her statement submitted to the Court the second applicant clearly referred to one grey UAZ vehicle and one white Gazel vehicle. This was confirmed by the statements of other witnesses (see paragraph 13 above).", "Furthermore, in their statements, whose accuracy was not contested by the Government, L.U. and M.T. submitted to have seen an APC and “other vehicles” near the applicants' house at the time of the abduction (ibid.). In sum, the Court considers that the applicants presented an overall coherent and convincing picture of Salambek Alapayev's abduction on 27 December 2004. 79.", "The applicants submitted that the abductors, who had been driving in a convoy of several vehicles, had left the village through one of its checkpoints located at the exit from the village to the Baku motorway. The Government did not challenge that submission as inaccurate or unreliable. They stated that the investigating authorities had inspected checkpoints nos. 186, 188 and 190. However, they refused to provide any further information in that respect or to furnish any related documents.", "80. In the Court's view, the fact that a large group of armed men in uniform, moving in a convoy of military vehicles, including an APC, was able to pass freely through checkpoints, proceeded to check documents in a manner similar to that of State agents and spoke unaccented Russian strongly supports the applicants' allegation that those persons were State servicemen. 81. The Court notes that in their applications to the authorities the applicants consistently maintained that Salambek Alapayev had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It further notes that after more than five years the investigation has produced no tangible results.", "82. In so far as the Government argued that the applicants' relative's abduction on the night of 26 December 2004 might have been connected with the robbery of his colleagues in Nazran on 29 November 2004, they furnished no evidence to suggest that the investigators had genuinely pursued that hypothesis, if at all. The documents concerning the robbery and produced by the Government pertain to another criminal case and nothing permits the Court to surmise that that information had been verified within the framework of criminal case no. 59000 opened into the abduction of Salambek Alapayev. 83.", "The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II (extracts)). 84.", "Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted by State servicemen. The Government's statement that the investigation had not found any evidence to support the involvement of servicemen in the kidnapping and their vague and unsupported reference to the possibility that Salambek Alapayev's abduction might have been connected with the robbery of his colleagues is insufficient to discharge them from the above‑mentioned burden of proof. Drawing inferences from the Government's failure to submit the remaining documents, which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court finds that Salambek Alapayev was arrested on 27 December 2004 by State servicemen during an unacknowledged security operation. 85. There has been no reliable news of Salambek Alapayev since the date of the kidnapping.", "His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest. 86. Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-VIII (extracts); Baysayeva v. Russia, no.", "74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Slambek Alapayev or of any news of him for more than five years supports this assumption. 87. Accordingly, the Court finds that the evidence available permits it to establish that Salambek Alapayev must be presumed dead following his unacknowledged detention by State servicemen.", "(iii) The State's compliance with Article 2 88. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146‑147 Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII (extracts)).", "89. The Court has already found it established that the applicants' relative must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government. 90. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Salambek Alapayev.", "(b) The alleged inadequacy of the investigation of the kidnapping 91. 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, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life 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. It should also be effective in the sense that it is capable of leading to a determination of whether or not the force used in such cases was lawful and justified in the circumstances, and should afford a sufficient element of public scrutiny of the investigation or its results (see 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). 92. The Court notes at the outset that the Government refused to produce the majority of the documents from case file no. 59000 and furnished mostly copies of witness' interview records, most of which were partly or fully illegible (see paragraph 56 above).", "It therefore has to assess the effectiveness of the investigation on the basis of the very scarce information submitted by the Government and the few documents available to the applicants that they provided to the Court. 93. Turning to the facts of the present case, the Court observes that the applicants notified the authorities of the abduction immediately after it had occurred. The investigation was opened on 30 December 2004. Thus, the Court is satisfied that it was instituted with sufficient promptness.", "94. The Court further has to assess the scope of the investigative measures taken. From the documents furnished by the Government it follows that the investigating authorities inspected the crime scene and interviewed a significant number of residents of Sernovodsk and also some of Salambek Alapayev's colleagues in Nazran. The Government also submitted that the investigation had taken other steps, such as inspecting the checkpoints and enquiring of various law-enforcement authorities whether they had conducted a special operation in Sernovodsk or had arrested Salambek Alapayev. However, they have produced no documents, such as copies of the inspection reports or requests to the authorities and replies to those requests, to corroborate their submissions.", "Accordingly, not only is it impossible to establish how promptly those measures were taken, but whether they were taken at all. 95. Furthermore, it appears that a number of crucial steps were never taken. In particular, there is no indication that any attempts have been made to identify the owners of the APC and other vehicles by establishing which military units or other law-enforcement authorities were equipped with APCs, where those vehicles had been located at the time of the abduction and on whose orders they had been used. It does not appear that any attempts have been made to establish the itinerary of the vehicles.", "There is also no evidence that any officials of local law-enforcement and military authorities were questioned in that connection. 96. It is obvious that, if they were to produce any meaningful results, these investigative measures should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. The delays and omissions, for which there has been no explanation in the instant case, not only demonstrate the authorities' failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004‑XII).", "97. The Court further notes that while the second applicant was granted victim status on 11 January 2005, it was only on 11 January 2006 that the district prosecutor's office decided to recognise the first applicant as a victim in the proceedings in case no. 59000. It also transpires from the applicants' repeated and mostly unanswered requests for information addressed to the investigating authorities that they were hardly informed of any developments in the investigation. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.", "98. Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions. It also appears that there were lengthy periods of inactivity on the part of the prosecuting authorities when no investigative measures were being taken. 99. Having regard to the limb of the Government's preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years with no tangible results.", "Furthermore, the applicant, having had no access to the case file and not having been properly informed of the progress of the investigation, could not have effectively challenged any acts or omissions on the part of the investigating authorities before a court. Moreover, owing to the time which had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospect of success. Accordingly, the Court finds that the remedies relied on by the Government were ineffective in the circumstances and dismisses their preliminary objection. 100.", "In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Salambek Alapayev, in breach of Article 2 in its procedural aspect. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 101. The applicants relied on Article 3 of the Convention, submitting that as a result of their relative's disappearance and the State's failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "The parties' submissions 102. The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. 103. The applicants maintained their complaints. B.", "The Court's assessment 1. Admissibility 104. The Court notes that this complaint under Article 3 of the Convention 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 105. The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly 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 (see Orhan, cited above § 358, and Imakayeva, cited above, § 164). 106.", "In the present case the Court notes that the applicants are the mother and the wife of the disappeared person. The second applicant witnessed his abduction. For more than five years they have not had any news of the missing man. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about Salambek Alapayev. Despite their attempts, the applicants have never received any plausible explanation or information about what became of him following his abduction.", "The responses they received mostly denied State responsibility for their relative's arrest or simply informed them that the investigation was ongoing. The Court's findings under the procedural aspect of Article 2 are also of direct relevance here. 107. The Court therefore concludes that there has been a violation of Article 3 of the Convention also in respect of the applicants. IV.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 108. The applicants further stated that Salambek Alapayev had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant: “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.” A. The parties' submissions 109. The Government asserted that no evidence had been obtained by the investigators to confirm that Salambek Alapayev had been deprived of his liberty. 110.", "The applicants reiterated the complaint. B. The Court's assessment 1. Admissibility 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 the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 112. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no.", "25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122). 113. The Court has found that Salambek Alapayev was apprehended by State servicemen on 27 December 2004 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.", "Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 114. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants' complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 115.", "In view of the foregoing, the Court finds that Salambek Alapayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 116. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 117.", "The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had had an opportunity to challenge the acts or omissions of the investigating authorities in court. They also pointed out that it was open to the applicants to lodge a claim for compensation for non-pecuniary damage under Articles 1069-70 of the Civil Code In sum, the Government submitted that there had been no violation of Article 13. 118. The applicants reiterated the complaint.", "B. The Court's assessment 1. Admissibility 119. 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 120. The Court reiterates that in circumstances where, as here, a criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183). 121.", "Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 122. As regards the applicants' reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13, read in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 123. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 124. The applicants claimed that they had sustained damage in respect of the loss of Salambek Alapayev's earnings following his apprehension and disappearance. The first applicant claimed a total of 510,914.76 Russian roubles (RUB) under this head (approximately 12,873 euros (EUR)).", "The second applicant claimed RUB 717,573.27 (approximately EUR 18,079). 125. The applicants submitted that at the material time Salambek Alapayev had been unemployed and that in such cases the calculation should be made on the basis of the subsistence level established by national law. With reference to the relevant provisions of the Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary Department in 2007 (“the Ogden tables”), the applicants calculated Salambek Alapayev's earnings with an adjustment for 10% yearly inflation and submitted that the first applicant should be entitled to 25% of the total amount of his earnings. The second applicant claimed that she would be entitled to the same percentage as the first applicant and that until they reached the age of majority her two children would be entitled to a further 20% of her husband's income each.", "126. The Government argued that the applicants' claims were unsubstantiated and that they had not made use of the domestic avenues for obtaining compensation for the loss of their breadwinner. 127. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicants' relatives and the loss to them of the financial support which he could have provided.", "128. Having regard to the applicants' submissions and the fact that Salambek Alapayev was not employed at the time of his apprehension, the Court awards EUR 4,000 to the first applicant and EUR 7,000 to the second applicant in respect of pecuniary damage plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 129. The applicants claimed EUR 40,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards him and the failure to provide any information about the fate of their close relative. 130.", "The Government found the amounts claimed exaggerated. 131. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants' relative. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations.", "It awards EUR 15,000 to the first applicant and EUR 45,000 to the second applicant plus any tax that may be chargeable to them. C. Costs and expenses 132. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour for the SRJI lawyers and EUR 150 for the SRJI senior staff, as well as administrative expenses, translation and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicants' representation amounted to EUR 6,485.54, to be paid into the applicants' representatives' account in the Netherlands.", "133. The Government pointed out that the applicants should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had actually been incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005). 134. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).", "135. Having regard to the details of the information and legal representation contracts submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred. 136. As to 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. It notes, however, that the case involved little documentary evidence, in view of the Government's refusal to submit most of the case file.", "Furthermore, due to the application of Article 29 § 3 in the present case, the applicant's representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that the case involved the amount of research claimed by the applicants' representatives 137. Lastly, the Court notes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly into the applicants' representatives' accounts (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 175, ECHR 2005-VII, and Imakayeva, cited above). 138.", "Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 5,000, together with any value-added tax that may be chargeable to the applicants; the net award is to be paid into the representatives' bank account in the Netherlands, as identified by the applicants. D. Default interest 139. 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 Government's objection as to non‑exhaustion of criminal domestic remedies and rejects it; 2.", "Declares the application admissible; 3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Salambek Alapayev; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Salambek Alapayev disappeared; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Salambek Alapayev; 7.", "Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2; 8. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 9. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses: (i) EUR 4,000 (four thousand euros) to the first applicant and EUR 7,000 (seven thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 15,000 (fifteen thousand euros) to the first applicant and EUR 45,000 (forty five thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives' bank account in the Netherlands; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 3 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF MAJS EKSPORT-IMPORT v. SERBIA (Application no. 35327/09) JUDGMENT STRASBOURG 5 November 2013 This judgment is final. It may be subject to editorial revision. In the case of Majs Eksport-Import v. Serbia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Dragoljub Popović,Helen Keller, judges,and Seçkin Erel, Acting Deputy Section Registrar, Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35327/09) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Majs Eksport-Import (“the applicant”), a company registered in Serbia, on 11 June 2009. 2. The applicant was represented by Mr V. Božović, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "On 11 October 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The proceedings concerning the applicant’s claim 4. The applicant and Beogradski Pamučni Kombat, a company based in Belgrade (hereinafter: “the debtor”) concluded a contract on 7 March 2000.", "The debtor failed to fulfil its obligations arising from the contract. 5. On 11 December 2001 the Commercial Court in Belgrade instituted insolvency proceedings against the debtor. This decision was published on the court’s notice board on 19 December 2001. 6.", "On 12 March 2002 the applicant lodged its pecuniary claim within the insolvency proceedings. 7. As its claim had been disputed, on 11 October 2002 the applicant filed a separate civil suit before the Commercial Court in Belgrade and requested the determination of its claim. 8. On 2 September 2004 the Commercial Court in Belgrade determined one part of the applicant’s claim and ordered the debtor to pay the applicant 6,686.15 euros (EUR).", "9. On an unspecified date thereafter this judgment became final. 10. On 4 April 2005 the Commercial Court determined the reminder of the applicant’s claim and ordered the debtor to pay the applicant EUR 11,409 as well as 80,500 Serbian dinars in respect of the costs of civil proceedings. 11.", "This judgment became final on 9 June 2005. 12. On 30 September 2009 the applicant lodged an application for the enforcement of the judgment of 4 April 2005 in respect of the costs awarded. On the same day the Commercial Court in Belgrade allowed the application and issued an enforcement order. 13.", "The judgment of 2 September 2004 and the reminder of the judgment of 4 April 2005 were to be enforced in the context of the insolvency proceedings. B. The status of the debtor 14. Before the insolvency proceedings the debtor company was predominantly socially owned. It has remained registered as predominantly socially owned in the relevant public registries throughout the insolvency proceedings.", "15. On 18 December 2009 the Commercial Court in Belgrade terminated the insolvency proceedings against the company. This decision became final on 11 January 2011. On 1 June 2011 the debtor was erased from the Companies’ Register. II.", "RELEVANT DOMESTIC LAW 16. The relevant domestic law is set out in the Court’s judgments of R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 57-82, 15 January 2008); Vlahović v. Serbia (no. 42619/04, §§ 37-47, 16 December 2008); Crnišanin and Others v. Serbia (nos. 35835/05, 43548/05, 43569/05 and 36986/06, §§ 100-104, 13 January 2009); EVT Company v. Serbia (no.", "3102/05, §§ 26 and 27, 21 June 2007); Marčić and Others v. Serbia (no. 17556/05, § 29, 30 October 2007); Adamović v. Serbia, (no. 41703/06, §§ 17-22, 2 October 2012); and Marinković v. Serbia ((dec.) no. 5353/11, §§ 26-29 and §§ 31-44, 29 January 2013). THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 17. The applicant complained about the respondent State’s failure to enforce two final judgments rendered in its favour against the debtor and about the lack of an effective remedy in this connection. It relied on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The six-month rule 18. The Government submitted that the applicant had lodged the application with the Court outside the six-month time-limit.", "In particular, this time-limit had started to run when the opening of the insolvency proceedings against the debtor was announced on the Belgrade Commercial Court’s notice board, that is, on 19 December 2001. Since the applicant must have known that it was not certain whether it would be able to settle its claim in full within the insolvency proceedings, it should have lodged the application within six months from the date of the Convention entering into force in respect to the respondent State, which is 3 March 2004. Since the applicant had failed to do so, the Government invited the Court to reject the application as out of time. 19. The Court notes that the present case concerns the non-enforcement of the final domestic judgments in the applicant’s favour.", "The judgments here at issue became final and enforceable in 2004 and 2005 and remain fully unenforced to the present day. At the time of the introduction of this application, there were no effective domestic remedies for this complaint in the respondent State (see Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011). The Court concludes, therefore, that the alleged violation in the present case constitutes a continuous situation and accordingly rejects the Government’s objection. 2.", "Compatibility ratione personae 20. The Government argued that the State could not be held responsible for the debtor in the present case which was a separate legal entity not controlled by the State. 21. The Court has already held in comparable cases against Serbia that the State is liable for debts of socially-owned companies (see, for example, R. Kačapor and Others, cited above, §§ 97-98, Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, § 71, 31 May 2011, and Adamović v. Serbia, cited above, § 31).The Court sees no reason to depart from that jurisprudence in the present case.", "Consequently, this argument must be rejected. 3. Conclusion 22. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and finds no other ground to declare it inadmissible. It must therefore be declared admissible.", "B. Merits 23. The Court has already examined a similar situation in Adamović v. Serbia, cited above, and found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. 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.", "Accordingly, there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention also in this case. 24. The Court does not find it necessary in the circumstances of this case to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 26. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award it any sum on that account.", "27. It must, however, be noted that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no.40765/02, §§ 71-73, ECHR 2006, Marčić and Others v. Serbia, cited above, §§ 64-65, and Pralica v. Bosnia and Herzegovina, no. 38945/05, § 19, 27 January 2009). 28. Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure the enforcement of the final domestic decisions rendered in the applicant’s favour by way of paying the applicant, from their own funds, the sums awarded in the said final decisions, less any amounts which may have already been paid in respect of the said decisions.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4.", "Holds (a) that the respondent State shall, from its own funds and within three months, pay the applicant, the sums awarded in the final court decisions under consideration in the present case, less any amounts which may have already been paid on the basis of the said decisions; (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 5 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Seçkin ErelPaulo Pinto de Albuquerque Acting Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF REKLOS AND DAVOURLIS v. GREECE (Application no. 1234/05) JUDGMENT STRASBOURG 15 January 2009 FINAL 15/04/2009 This judgment may be subject to editorial revision. In the case of Reklos and Davourlis v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Christos Rozakis,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,George Nicolaou, 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. 1234/05) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Greek nationals, Mr Dimitrios Reklos and Ms Vassiliki Davourlis (“the applicants”), on 28 December 2004.", "2. The applicants were represented by the first applicant, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr K. Georgiadis, Adviser at the State Legal Council, and Mrs S. Alexandridou, Legal Assistant at the State Legal Council. 3. The applicants alleged, in particular, that there had been a violation of Article 6 § 1 of the Convention on account of the length of the domestic proceedings in question, and a violation of Article 8.", "4. By a decision of 6 September 2007 the Court declared the application admissible. 5. The applicants and the Government filed observations on the merits of the case (Rule 59 § 1 of the Rules of Court). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic, I. Immediately after birth the baby was placed in a sterile unit under the constant supervision of the clinic’s staff. Only its doctors and nurses had access to this unit. 7.", "On 1 April 1997 two photographs of the new-born baby, taken face on, were presented to the second applicant. The photographs had been taken inside the sterile unit by a professional photographer located on the first floor of the clinic. The clinic informed its clients that photography services were available. 8. The applicants complained to the clinic’s management about the photographer’s intrusion into a unit to which only the clinic’s staff should have had access, adding that the new-born baby was likely to have been upset by the taking of photographs face on and, most importantly, that they had not given their prior consent.", "9. Faced with the clinic’s indifference to their protests and refusal to hand over to them the negatives of the photographs, on 25 August 1997 the applicants brought an action for damages before the Athens Court of First Instance, under Articles 57, 59 and 932 of the Civil Code. Acting on behalf of their child, they claimed the sum of 4,000,000 drachmas (about 11,739 euros) in respect of non-pecuniary damage for the alleged infringement of their child’s personality rights. 10. On 24 June 1998 the Athens Court of First Instance dismissed their action as unfounded.", "It found as follows: “ ... it has not been possible to establish, from the circumstances in which the offending photographs were taken, that the photographer’s conduct was unlawful. In any event, the personality rights of the new-born baby cannot have been affected because, just after birth, his psychological and emotional environment had not yet been formed and the recording of his face on a photograph cannot have had any negative consequences for his subsequent development.” (decision no. 3049/1998) 11. On 22 September 1998 the applicants appealed. On 14 September 1999 the Athens Court of Appeal upheld the judgment of the court below.", "It found in particular as follows: “ ... according to the conclusions drawn from common practice, the personality, emotional environment and mental maturity of a new-born baby, only one day old, are not sufficiently developed for it to perceive an infringement of its personality rights, as has been alleged, or for its inner balance to be upset ...”. (decision no. 7758/1999). 12. On 28 August 2002 the applicants, represented by the first applicant, lodged an appeal with the Court of Cassation.", "In their notice of appeal they pointed out their child’s age at the material time and referred to all the considerations that had led the court below to dismiss their appeal. Their single ground of appeal on points of law concerned the Court of Appeal’s interpretation of Articles 57 and 932 of the Civil Code. In their view, that interpretation ran counter to Article 2 of the Greek Constitution and to Article 8 of the Convention. In particular, the applicants claimed that the criterion used by the domestic courts in determining whether the image and, a fortiori, the personality of an individual, could be protected, had been incompatible with the rights to “dignity” and to “the protection of private life”. In addition, the applicants argued that the criterion in question was also potentially dangerous, especially if it were to be applied to disabled children, as they might never reach the requisite level of “mental maturity” with the result that their image and, a fortiori, personality would not be protected.", "13. On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it lacked precision. Relying on Articles 118 and 566 § 1 of the Code of Civil Procedure, the court found that the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” (judgment no. 990/2004). II.", "RELEVANT DOMESTIC LAW AND PRACTICE 14. Article 2 of the Greek Constitution provides as follows: “1. Respect for and protection of the value of the human being constitute the primary duty of the State. 2. Greece, adhering to the generally recognised rules of international law, pursues the furtherance of peace and justice and the fostering of friendly relations between peoples and States.” 15.", "The relevant Articles of the Civil Code read as follows: Article 34 “Everyone shall have the capacity to enjoy rights and assume duties.” Article 35 “The person shall begin to exist at birth and cease to exist on death.” Article 57 “Anyone whose personality is the object of unlawful interference shall be entitled to demand that such interference cease and also not be repeated in the future ... In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.” Article 59 “In the cases provided for in the two preceding Articles, the court may, in the judgment it gives upon the application of the injured party, and regard being had to the nature of the interference, also order the liable party to make reparation for non-pecuniary damage. Such reparation may consist in the payment of a sum of money, publication of the court’s decision and any other measure that is deemed appropriate in the circumstances of the case.” Article 914 “Any person who, contrary to the law, causes damage to another person by his or her fault, shall make reparation for such damage”. Article 919 “Any person who intentionally causes damage to another person by acting contrary to moral standards shall make reparation for such damage”. Article 932 “Independently of any compensation due as a result of pecuniary damage caused by an unlawful act, the court may award reasonable monetary reparation, as it sees fit, for non-pecuniary damage.", "This provision shall enure in particular to the benefit of anyone who has sustained unlawful interference with health, honour or decency, or who has been deprived of liberty. In the event of death, the reparation may be awarded to the victim’s family by way of damages for pain and suffering”. 16. The relevant provisions of the Code of Civil Procedure provide as follows: Article 118 “Notices of appeal served between parties or filed in the court shall indicate: .... (4) the subject-matter of the appeal, stated clearly, precisely and succinctly ...” Article 566 § 1 “Appeals on points of law shall contain the information required by Articles 118 to 120, cite the judgment appealed against, state the grounds of appeal, whether the appeal is against all or part of the impugned decision, and include a submission on the merits of the case.” 17. According to the case-law of the Court of Cassation, appeals on points of law must indicate the substantive rule that has been breached, must show how there has been a mistake of law, in other words where the breach can be found in the construction or application of the rule in question, and must also include a statement of the facts on which the Court of Appeal based its decision dismissing the appeal (Court of Cassation, nos.", "372/2002 and 388/2002). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicants complained that the dismissal by the Court of Cassation of their appeal on points of law on the ground that it was imprecise had breached their right of access to a court, as guaranteed by Article 6 § 1 of the Convention, of which the relevant part reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” A. The parties’ submissions 1.", "The Government 19. The Government alleged, first, that the appeal on points of law had been declared inadmissible on account of its imprecise nature. If the applicants had submitted their complaint in compliance with the admissibility rules governing the lodging of appeals on points of law, it would not have been dismissed. The Government thus claimed that the applicants had not validly exhausted the domestic remedies. 20.", "On the merits, the Government argued that the task of the Court of Cassation was not to re-examine the facts of the case but to assess the lawfulness of the decision appealed against. The Government added that the question whether or not the admissibility rule applied by the Court of Cassation was severe was purely theoretical. The important thing in the present case was that the Court of Cassation had simply applied its settled case-law as regards the conditions of admissibility of an appeal on points of law. In particular, according to that case-law, when an ordinary appeal had been dismissed as unfounded, that is to say after the gathering of evidence by the lower court, the Court of Cassation required the appellant to state in his appeal on points of law the facts of the case as admitted by the court below. In the Government’s view, such a statement was indispensable so that the Court of Cassation could subsequently exercise its right to review the construction of legal rules by the lower court.", "The Government considered that it was reasonable to expect the appellant on points of law to present the facts of the case as established by the Court of Appeal after the gathering of evidence. Otherwise it would be for the Court of Cassation itself to ascertain the facts that had led to an erroneous interpretation of domestic law by the Court of Appeal. 2. The applicants 21. The applicants replied that the rule applied by the Court of Cassation derived purely from case-law and not from any provision of domestic or international law.", "They added that their ground of appeal on points of law had been a legal ground that rendered superfluous any restatement of the facts of the case. They further alleged that all the requisite documents, namely those concerning their action and appeal before the domestic courts, together with copies of the corresponding judgments, had been included in the case file at the disposal of the Court of Cassation. B. The Court’s assessment 22. The Court points out that, in its decision on the admissibility of the application, it joined to the merits the objection concerning the exhaustion of domestic remedies that had been raised by the Government in respect of the present complaint.", "23. The Court considers that its task, in the present case, is to ascertain whether the manner in which the Court of Cassation dismissed the single ground of appeal on points of law submitted by the applicants deprived them de facto of their right to have their appeal examined on the merits. For that purpose the Court will look at the proportionality of the limitation imposed in relation to the requirements of legal certainty and the proper administration of justice. 24. The Court observes that the Greek Court of Cassation has judicially laid down a condition of admissibility based on the degree of precision of the grounds of appeal on points of law.", "That rule complies, in general terms, with the requirements of legal certainty and the proper administration of justice. When the appellant before the Court of Cassation alleges that the Court of Appeal made a mistake in its assessment of the facts of the case in relation to the legal rule applied, it would seem reasonable to require the appellant to set out in his appeal the relevant facts that constitute the subject-matter of his submissions. Otherwise the Court of Cassation would not be in a position to exercise its right of review in respect of the judgment appealed against. It would be required to re-establish the relevant facts of the case and to interpret them itself in relation to the legal rule applied by the Court of Appeal. Such a hypothesis cannot be envisaged because it would mean requiring the Court of Cassation itself to formulate the grounds of appeal on points of law – grounds that it will then have to examine.", "In sum, the principle at issue is consonant with the specific role of the Court of Cassation, whose right of review is limited to the observance of the law (see, to that effect, Brechos v. Greece (dec.), no. 7632/04, 11 April 2006). 25. In the present case, however, the Court does not find that the applicants’ appeal on points of law imposed on the Court of Cassation the burden of re-establishing the facts of the case. In the Court’s view, three factors must be taken into account in this connection.", "First, the single ground of appeal on points of law related exclusively to the Court of Appeal’s construction of the provisions applied in the case. Consequently, the simultaneous submission of the facts of the case, as established by the Court of Appeal, was not indispensable for the exercise by the Court of Cassation of its right of review (see Efstathiou and Others v. Greece, no. 36998/02, § 31, 27 July 2006). 26. Secondly, the crucial facts of the case for the Court of Cassation’s examination were not particularly complex.", "Only one element was of real importance, namely the age of the baby at the time the offending photographs were taken, and that element was clear from the considerations of the Court of Appeal reproduced in the appeal on points of law (see Zouboulidis v. Greece, no. 77574/01, § 29, 14 December 2006). 27. Lastly, the impugned decision of the Court of Appeal had been appended to the appeal on points of law. It was thus easy for the Court of Cassation to consult the text of the judgment appealed against and to verify the accuracy of one simple fact already referred to in the appeal on points of law (see Efstathiou and Others, cited above, § 31).", "28. In these circumstances, the Court takes the view that the Court of Cassation was apprised of the facts as established by the Court of Appeal. To declare the single ground of appeal inadmissible because the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” amounted to excessive formalism and prevented the applicants from having the merits of their allegations examined by the Court of Cassation (see, to this effect, Běleš and Others v. the Czech Republic, no. 47273/99, § 69, ECHR 2002‑IX, and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002‑IX).", "Accordingly, the Court dismisses the Government’s preliminary objection that domestic remedies had not been exhausted and finds that there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29. The applicants further complained that there had been an unlawful interference with their child’s right to respect for his private life in view of the dismissal of their action for damages by the lower domestic courts. In particular, they disputed the reasoning given by those courts, namely that the mental maturity of their son, who was only one day old, was not sufficiently developed for him to perceive the alleged infringement of his personality rights.", "The applicants relied on Article 8 of the Convention, of which the relevant part reads as follows: “1. Everyone has the right to respect for his private ... life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1. The Government 30.", "The Government argued at the outset that the applicants had not relied on a violation of Article 8, either expressly or in substance, during the proceedings before the domestic courts. They had not therefore given the national authorities an opportunity to remedy the alleged violation. The Government moreover contested the applicability of Article 8 in the present case, arguing that since the offending photographs had not been published the “private life” of the applicants’ son was not at issue. 31. On the merits, the Government alleged that the photographer’s intention was solely to sell the photographs of the new-born baby to its parents, without releasing them to the general public.", "In the present case there had thus been no commercial exploitation of the baby’s image. The Government concluded that, in these circumstances, there had been no interference with the applicants’ son’s right to respect for his private life. They added in this connection that it was self-evident that the mental maturity of the baby, at the age of only one day, was not sufficiently developed for it to sense any such infringement of its personality rights. 2. The applicants 32.", "The applicants argued that the approach taken by the domestic courts as regards the protection of their child’s personality was dangerous. In particular, they argued that if the perception by an individual of a potential interference with his image and, a fortiori, his personality were to be a prerequisite for his judicial protection, then the dignity and integrity of certain categories of persons could be at risk. B. The Court’s assessment 1. Preliminary objections 33.", "The Court reiterates its previous finding, in its decision of 6 September 2007 on the admissibility of the application, that the applicants did invoke the right to protection of private life before the domestic courts and that they exhausted domestic remedies in respect of their complaint under Article 8 of the Convention. The Court also found that Article 8 was engaged in the present case. It does not therefore find it necessary to examine the Government’s objections a second time. The objections in question should accordingly be dismissed. 2.", "Merits (a) Scope of the case 34. The Court finds that it is necessary first to circumscribe the scope of the present case. It cannot address the general question raised by the applicants as to whether the recognition of a potential interference with the right to the protection of one’s image depends on the awareness of such interference by the individual concerned. The Court’s task is to ascertain whether the taking of the photographs in question without the parents’ prior consent, together with the retention of the negatives, was capable of interfering with the baby’s right to respect for its private life as guaranteed by Article 8 of the Convention. Consequently, the issue in the present case is whether the domestic courts afforded sufficient protection to the private life of the applicants’ son.", "35. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. That also applies to the protection of a person’s picture against abuse by others (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004‑VI).", "36. The boundary between the State’s positive and negative obligations under this provision does not lend itself 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 (ibid.). 37.", "Moreover, the Court would emphasise that in the present case the applicants’ son did not knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. On the contrary, the photographs were taken in a place that was accessible only to the doctors and nurses of the clinic I. and the baby’s image, recorded by a deliberate act of the photographer, was the sole subject of the offending photographs. (b) General principles 38. The Court notes that the Government focussed their arguments on the fact that in the present case the images in question were not published but simply reproduced with a view to being sold to the baby’s parents. The Government thus alleged that, as there had been no publication of the offending images, there could not have been any infringement of the baby’s personality rights.", "The Court must therefore ascertain whether, although the offending images were not published, there was nevertheless interference with the applicants’ son’s right to the protection of his private life. For that purpose it is necessary to examine the substance of the right to the protection of one’s image, especially as in previous cases the Court has dealt with issues specifically involving the publication of photographs, whether of politicians or public figures (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover, cited above, § 50, respectively) or even of private persons (see Sciacca v. Italy, no. 50774/99, § 28, ECHR 2005‑I). 39.", "In general terms, the Court observes that according to its case-law “private life” is a broad concept not susceptible to exhaustive definition. The notion encompasses the right to identity (see Wisse v. France, no. 71611/01, § 24, 20 December 2005) and the right to personal development, whether in terms of personality (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002‑VI) or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑..., and Pretty v. the United Kingdom, no.", "2346/02, § 61, ECHR 2002‑III). 40. 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 and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person.", "As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case (see paragraph 37 above), obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image. (c) Application of these general principles in the present case 41. In the present case the Court first observes that, as regards the conditions in which the offending pictures were taken, the applicants did not at any time give their consent, either to the management of the clinic or to the photographer himself. In this connection it should be noted that the applicants’ son, not being a public or newsworthy figure, did not fall within a category which in certain circumstances may justify, on public-interest grounds, the recording of a person’s image without his knowledge or consent (see Krone Verlag GmbH & Co. KG v. Austria, no.", "34315/96, § 37, 26 February 2002). On the contrary, the person concerned was a minor and the exercise of the right to protection of his image was overseen by his parents. Accordingly, the applicants’ prior consent to the taking of their son’s picture was indispensable in order to establish the context of its use. The management of the clinic I. did not, however, seek the applicants’ consent and even allowed the photographer to enter the sterile unit, access to which was restricted to the clinic’s doctors and nurses, in order to take the pictures in question. 42.", "In addition, the Court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face-on portrait of the baby and did not show the applicants’ son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants’ son’s representation on the offending photographs, but the fact that the photographer kept them without the applicants’ consent. The baby’s image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, P.G. and J.H.", "v. the United Kingdom, no. 44787/98, § 57, ECHR 2001‑IX). 43. The Court notes that, during the examination of the case at issue, the domestic courts failed to take into account the fact that the applicants had not given their consent to the taking of their son’s photograph or to the retention by the photographer of the corresponding negatives. In view of the foregoing, the Court finds that the Greek courts did not, in the present case, sufficiently guarantee the applicants’ son’s right to the protection of his private life.", "There has therefore been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 45.", "The applicants claimed 36,000 euros (EUR) jointly in respect of the non-pecuniary damage they considered they had sustained in the present case. 46. The Government requested the Court to dismiss this claim and moreover submitted that any award should not exceed EUR 5,000. 47. The Court considers that the applicants certainly sustained non-pecuniary damage on account of the interference with their right of access to a court and with their child’s private life, and that the finding of violations of the Convention does not constitute sufficient just satisfaction for such damage.", "Deciding on an equitable basis, the Court awards the applicants EUR 8,000 jointly under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 29. As the applicants did not submit any claim for costs and expenses, the Court considers that no award should be made to them under this head. C. Default interest 30.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government’s preliminary objections; 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 8 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in French, and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "FOURTH SECTION CASE OF LAMMI v. FINLAND (Application no. 53835/00) JUDGMENT STRASBOURG 15 November 2005 FINAL 15/02/2006 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 Lammi v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrR.", "Maruste,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 29 June 2004 and on 25 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 53835/00) against the Republic of Finland 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 Finnish national, Mr Markus Lammi (“the applicant”), on 18 September 1998. 2. The applicant was represented by Mr Pertti Meronen, a lawyer practising in Vantaa. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.", "3. The applicant alleged that the criminal proceedings against him had been excessive in length. 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 29 June 2004 the Court declared the application partly admissible. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1936 and lives in Vantaa. He was the sole shareholder in a company, which was in the process of being wound up from 1987. Background 8.", "In 1987 the official receiver of the company requested the applicant to hand over to him all the assets of the company. The applicant who was in possession of shares in a housing company refused to deliver those shares. 9. The applicant instituted civil proceedings before the District Court (käräjäoikeus, tingsrätten) of Vantaa against the company and requested the court to confirm that the shares were owned by him and that he was under no obligation to hand them over. On 17 December 1987 the District Court held, however, that the shares belonged to the company and ordered him to hand them over to the official receiver.", "On 30 November 1988 the judgment was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten). On 5 June 1989 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. In January 1990 the applicant lodged an extraordinary appeal. In October 1992 and September 1993 he lodged further annulment applications relating to the ownership of the shares and other issues arising out of the winding up of his company. Those applications were all dismissed as ill-founded by the Supreme Court on 21 June 1993 and 23 August 1994 respectively.", "Furthermore, his extraordinary appeal of 30 May 1995 was dismissed by the Supreme Court on 29 June 1995. 10. Meanwhile, the official receiver requested the bailiff to seize the shares from the applicant. On 13 October 1989 an attempt to this effect failed the applicant having argued that he held the shares by way of guarantee and refused to inform the bailiff about the shares’ whereabouts. Criminal investigation and subsequent events 11.", "On 6 November 1989 the company requested that the police investigate whether the applicant had committed an offence by refusing inter alia to provide information about the whereabouts of the shares. On 7 December 1989 and on 9 February 1990 the police unsuccessfully carried out searches of his apartment. On 27 February 1990 he was questioned. He told the police that he had lodged, in December 1989 and January 1990 respectively, applications for an annulment of the winding up order and the final decision in the ownership proceedings. He had also lodged a complaint with the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern vid statsrådet).", "Further, he stated that he was not going to provide any information until the resolution of those complaints. It appears that the pre-trial investigation was completed on 30 May 1990. 12. The official receiver requested that the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa order the applicant to move out of the apartment in the housing company as the shares in question belonged to the company. On 7 November 1990 it issued an order to that effect.", "On 5 February 1991 the Helsinki Court of Appeal rejected the applicant’s appeal. 13. On 3 September 1992 a local public prosecutor decided not to bring charges for a debtor’s fraud allegedly committed on 9 February 1987. He found that it had not been sufficiently evidenced that the applicant had knowledge of the shares’ whereabouts. The company lodged a complaint with the Chancellor of Justice, who on 12 November 1992 gave instructions that a new pre-trial investigation be carried out.", "The official receiver and the applicant were questioned by the police on 3 December 1992 and 9 February 1993 respectively and it appears that the pre-trial investigation was completed on the latter day. 14. On 13 January 1995 the official receiver requested that the District Court of Vantaa declare the shares null and void as their lawful owner, the company, had not received them from the applicant despite numerous attempts. On 24 April 1995 the District Court refused the company’s request since the applicant had appeared at the District Court on 13 April 1995 and produced the shares without handing them over and since, according to Finnish law, only shares which had gone missing could be declared null and void. District Court 15.", "Meanwhile, on 2 February 1995 the then County Prosecutor (lääninsyyttäjä, länsåklagaren) charged the applicant with aggravated embezzlement committed on 21 June 1989 when he had become aware of the Supreme Court’s judgment of 5 June 1989. The County Prosecutor assigned the case to another local public prosecutor. On 4 October 1995 the summons was served upon the applicant. 16. The District Court held three hearings, on 23 November 1995, on 1 February 1996 and on 16 March 1996.", "In its judgment of 21 March 1996 the District Court acquitted the applicant. It noted that the ownership of the shares had been finally decided by the Supreme Court’s relevant decision of 5 June 1989, that the applicant had admitted that the shares were in his possession and that he had failed to prove that he had a right to withhold them from the official receiver on the basis of a contract of guarantee, or any other document. However, the embezzlement could not be regarded as an aggravated one and, as the charges for a “normal” embezzlement should have been brought within five years of the date on which the offence had taken place, the relevant time limit had elapsed and the charges were time barred. The applicant was, however, ordered to pay 518,682.99 Finnish marks (FIM; about 87,200 euros (EUR)) in compensation for pecuniary damage, and FIM 6,000 (some EUR 1,000) in compensation for the company’s legal costs. Court of Appeal 17.", "The parties appealed. On 5 December 1996, having found that the company had failed to request a court order according to which a conditional fine would have been imposed had the applicant refused to hand over the shares to the company, the Helsinki Court of Appeal (hovioikeus, hovrätten) altered the District Court’s judgment and rejected the company’s claims. The judgment was not unanimous. Supreme Court 18. Only the company requested leave to appeal.", "On 29 May 1997 the Supreme Court granted leave to appeal. The applicant lodged an extraordinary appeal against the decision, arguing that the Supreme Court Judges X and T had been disqualified from deciding the leave to appeal matter, but this was dismissed by the Supreme Court on 21 January 1998. 19. At the oral hearing in the Supreme Court on 6 February 1998, the applicant argued that the Supreme Court Judges T and P were biased as they had been involved in the decision-making concerning some extraordinary appeal proceedings in the applicant’s previous cases before the Supreme Court. The objection was dismissed by the Supreme Court as the cases referred to by the applicant had not concerned the same issues as the present proceedings.", "20. In its judgment of 19 March 1998 the Supreme Court convicted the applicant of aggravated embezzlement and sentenced him to a suspended term of seven months’ imprisonment. He was also ordered to pay the company FIM 350,000 (approximately EUR 58,800) in compensation for the latter’s pecuniary damage. Having first found the official receiver competent to act on behalf of the company in the proceedings, and having rejected the applicant’s argument according to which the company’s compensation claim for pecuniary damage had been submitted after the relevant time limit had elapsed, the Supreme Court found him guilty as charged. It considered that he had failed to prove that he had any lawful right to refuse to hand the shares over to the official receiver.", "As the company had been prevented from selling the shares because of his resistance, it had suffered financial loss in the form of lost interest it would have earned from the sales price had the shares been sold in the summer of 1989 for the sales price of FIM 1,100,000 (some EUR 185,000) which was the estimated sales price at the relevant time. On 30 April 1999 the Supreme Court refused the applicant’s request to re-open the criminal proceedings. Meanwhile, on 9 October 1998, he complained about the Supreme Court criminal proceedings to the Parliamentary Ombudsman. It is not known whether the complaint is still pending before the Ombudsman. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.", "The applicant claimed to be a victim of a breach of the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Period to be taken into account 22. The applicant considered that the criminal proceedings against him had begun on the day of the alleged offence i.e. on 13 October 1989, and they had ended on 19 March 1998 and that this was excessive. 23.", "The Government contested the applicant’s interpretation of when the proceedings had begun, being of the view that the moment of commencement was 9 February 1993 when he had been questioned by the police for the first time relating to the alleged embezzlement. 24. The Court reiterates that in criminal proceedings the “reasonable time” begins to run with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 73). A person has been found to be subject to a “charge” when a preliminary investigation has been opened in his case and, although not under arrest, the applicant has officially learned of the investigation or has begun to be affected by it (see Corigliano v. Italy, judgment of 10 December 1982, Series A no.", "57, § 34). 25. In the present case the Court finds that the applicant officially learned of the investigation at the time of the search of his apartment on 7 December 1989 with a view to finding the withheld shares. That day was therefore the moment of commencement. To hold otherwise would be artificial in the circumstances of the case given the fact that the subsequent investigation followed as a direct sequel to the Chancellor of Justice’s decision, which had been brought about by the decision not to prosecute.", "However, since the Convention entered into force with respect to Finland on 10 May 1990, the Court will limit its examination to whether the facts occurring after that date disclosed a breach of the Convention. In order to determine the reasonableness of the length of time in question, regard must be had, however, to the state of the case on 10 May 1990 (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no 299-A, § 53 and Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322, § 41). It is undisputed that the proceedings ended with the Supreme Court’s judgment of 19 March 1998. Consequently, the Court finds that the proceedings lasted more than seven years and ten months.", "B. Reasonableness of the length of the proceedings 26. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, § 35). 27.", "The Court notes the Government’s argument that the complexity of the case was illustrated by the local prosecutor’s decision not to prosecute for a criminal offence related to bankruptcy and by the County Prosecutor’s decision to prosecute for embezzlement on the one hand and by the courts’ diverging conclusions on the other. It also takes note of the applicant’s counter argument that all relevant information had been at hand since June 1989. The Court observes that the case had a connection with winding up proceedings, which connection has a tendency to hinder the official receiver from acting with the same degree of diligence as a complainant who has an unrestricted mandate. Nevertheless, given the nature of the offence and the underlying facts, the Court concludes that the case was not a complex one. 28.", "Having regard to the seriousness of the charges and the claim for compensation, the Court does not doubt the importance of what was at stake. 29. As to the conduct of the applicant, the Court takes note of the Government’s argument that, on 27 February 1990, he requested that the pre-trial investigation should await certain decisions by the Supreme Court and the Chancellor of Justice and that he stated that he would provide no further information until the resolution of those complaints. He had also lodged further applications for an annulment of seven other decisions. The applications were rejected in June 1993, August 1994 and June 1995.", "The Government also pointed out that on 23 November 1995 the District Court adjourned the case upon request by the applicant and the complainant and on 1 February 1996 upon the applicant’s request. Moreover, in the Supreme Court he requested on 29 December 1997 that it deal with the case in February 1998 at the earliest. The Government emphasised that there were negotiations between the applicant and the company during the pre-trial investigation. Lastly, the applicant was not residing at his official address, which delayed the serving of the summons. The Court observes that the minutes from the Supreme Court’s hearing in 1998 disclose that the applicant admitted that he had not been residing at his official address since 1991.", "The serving of the summons to the Supreme Court hearing had therefore been delayed. The Court further notes that the applicant has not contested that he lodged the above complaints or that he requested postponements. 30. The Court reiterates that by the time the Convention entered into force with respect to Finland searches had been conducted on 7 December 1989 and 9 February 1990 and the questioning of the applicant had taken place on 27 February 1990. The pre-trial investigation was completed on 30 May 1990.", "It appears that the case was then referred to the public prosecutor. On 3 September 1992 the local public prosecutor decided not to prosecute. About two months later the Chancellor of Justice instructed the police to carry out a further investigation, which subsequently came to an end some three months later, in February 1993. It would appear that the case was then referred to the County Prosecutor for the consideration of the charges. In February 1995 charges were brought and the applicant was served with the summons in October 1995.", "The District Court delivered judgment less than six months later. The Court of Appeal rendered its judgment eight and a half months after the District Court’s judgment. The Supreme Court granted leave to appeal, dismissed the extraordinary appeal, held a hearing and delivered judgment within about one year and three months from the Court of Appeal’s judgment. 31. The Court finds that the criminal proceedings were indeed long.", "The time it took for the local prosecutor to consider the charges gives reason for concern. It may also be noted that there appeared to be little activity in the two years that elapsed from the closing of the further pre-trial investigation in February 1993 to the decision to prosecute in February 1995. However, the dormant proceedings can be explained by the fact that the police and the local prosecutor were awaiting the outcome of the two applications for an annulment and the Chancellor of Justice’s decision, as requested by the applicant in February 1990. It appears that he never withdrew that request. The same applies to the second consideration of the charges carried out by the County Prosecutor.", "The Court observes that the applicant had two further annulment applications pending from October 1992 and September 1993. The latest application for an annulment in the ownership proceedings was rejected in August 1994. Furthermore, at the time when the County Prosecutor was considering the charges it appears from the facts outlined above that the official receiver was preparing the lodging of a civil action aiming at obtaining the possession of the shares, which he subsequently did on 13 January 1995. As noted above, this proved to be unsuccessful as the applicant appeared in court with the shares but refused to hand them over. The Court observes that the criminal proceedings before the courts took less than two and a half years for three instances, which is not excessive.", "32. The Court reiterates that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see H. v. France, judgment of 24 October 1989, Series A no. 162‑A, p. 21-22, § 55). 33. In the instant case, the ownership issue had been finally settled in June 1989.", "Instead of acknowledging this fact and complying with the court order to hand over the shares, the applicant manoeuvred with the aim of hindering or at least impeding the criminal investigation and the bringing of charges. From 1991 to 1998 he did not reside at his official address and thus made it more difficult for the authorities and the courts to contact him. He also requested several postponements. Further, he lodged numerous applications for annulments and presented unfounded partiality complaints. It appears that he did much to prolong the criminal proceedings.", "Having regard to all the circumstances of the case, it is apparent that the applicant through his conduct was responsible for prolonging the proceedings. The Court therefore considers that his complaint is unfounded. There has therefore been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been no violation of Article 6 § 1 of the Convention; Done in English, and notified in writing on 15 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosNicolas Bratza Deputy RegistrarPresident" ]