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[ "FOURTH SECTION CASE OF ATKINSON v. THE UNITED KINGDOM (Application no. 65334/01) JUDGMENT (Friendly Settlement) STRASBOURG 8 April 2003 This judgment is final but it may be subject to editorial revision. In the case of Atkinson v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza, MrsV. Strážnická,MrR.", "Maruste,MrS. Pavlovschi, Mr L. Garlicki, MrJ. Borrego Borrego, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 18 March 2003, Delivers the following judgment, which was adopted on that last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 65334/01) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Peter George Atkinson (“the applicant”), on 24 January 2001.", "2. The applicant was represented by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C.A. Whomersley, Foreign and Commonwealth Office, London. 3.", "The applicant complained that British social security legislation discriminated against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1. 4. On 19 February 2002, after obtaining the parties' observations, the Court declared the application admissible in so far as the complaints related to the period from 23 July 2000 onwards. The complaints of the applicant relating to the period from 9 July 1998 to 23 July 2000 were declared inadmissible on 7 June 2001.", "5. On 4 March 2002, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 21 January 2003 and on 28 January 2003 the Government and the applicant respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 28 October 1945 and lives in Maidenhead.", "7. The applicant and his wife were married in 1992 and had two children, both born in 1995. The applicant's wife died on 9 July 1998. On 23 July 2000 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled, namely a Widow's Payment and a Widowed Mother's Allowance, and thereafter a Widow's Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”).", "He was informed on 25 July 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. He was told that he had no right of appeal since his claim had not been considered. THE LAW 8. On 21 January 2003 the Court received the following declaration from the Government: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of the United Kingdom offer to pay GBP 10,488.12 to Mr Peter George Atkinson. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights.", "This payment will constitute the final resolution of the case. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 9. On 28 January 2003 the Court received the following declaration signed by the applicant's representative: “We note that the Government of the United Kingdom are prepared to pay the sum of GBP 10,488.12 covering pecuniary and non-pecuniary damage and costs to Mr Peter George Atkinson with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. We accept the proposal and waive any further claims against the United Kingdom in respect of the facts of this application. We declare that this constitutes a final settlement of the case.", "This declaration is made in the context of a friendly settlement which the Government and the applicant have reached. We 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.” 10. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 11.", "Accordingly, the case should be struck out of the list. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2. Takes note of the parties' undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 8 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O'BoyleMatti PellonpääRegistrarPresident" ]
[ "THIRD SECTION[1] CASE OF DİCLE v. TURKEY (Application no. 34685/97) JUDGMENT STRASBOURG 10 November 2004 FINAL 10/02/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dicle v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI.", "Cabral Barreto,MrL. Caflisch,MrB. Zupančič,MrJ. Hedigan, MrsH.S. Greve, judges,MrF.", "Gölcüklü, ad hoc judge,and Mr V. Berger, Section Registrar, Having deliberated in private on 14 November 2002 and 21 October 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 34685/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Hatip Dicle (“the applicant”), on 12 December 1996. 2. The applicant was represented by Ms B. Boran and Mr M.N.", "Özmen, lawyers practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government appointed Mr Feyyaz Gölcüklü as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).", "4. By a decision of 14 November 2002, the Court declared the application partly admissible. It retained the applicant’s complaints concerning the independence and impartiality of the Istanbul State Security Court, the alleged interferences with his rights to freedom of thought and freedom of expression as well as the complaint that the interferences with his above-mentioned rights did not pursue aims that are legitimate under the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1955 and was imprisoned in the central prison of Ankara at the time of the introduction of his application. He currently lives in Ankara. 6. On 31 May 1995 an article titled “The International Atatürk Peace Award” (“Uluslararası Atatürk Barış Ödülü”) was printed by the applicant in the daily Yeni Politika newspaper. On the same day the newspaper was seized by security forces upon the order of the Istanbul public prosecutor at the printing office, before being distributed.", "The impugned article read: “Peace, just like freedom, is a sacred creation of human consciousness and desire. This treasure deserves constant struggle, sincerity, alertness and solidarity for it. Peace, just like freedom, requires sacrifice and effort. It is certain that all peoples of the world understood the value and meaning of keeping peace better after the two world wars whose pain will continue to horrify the human consciousness for centuries. The rise of the anti-war movements, both at the national and international level, is the reflection of this consciousness.", "In fact, history has proven that for a permanent peace it is essential that an end be put to all forms of exploitation and discrimination and that the social system rest on the foundations of tolerance, mutual respect for rights, justice and the rule of law. This undisputable principle is also the only guarantee for today, both nationally and internationally. Nowadays, peace movements in many countries, in addition to their own peace efforts in their countries, monitor the events out of their countries like a radar device and try to offer solidarity with people who fight for peace and freedom. In order to realize this purpose, national committees are being set up and the peace efforts of individuals and institutions are supported with annual peace awards. These committees’ decisions are generally taken after meticulous inquiries concerning the nominees.", "Among these awards, the Nobel Peace Prize is the most distinguished one. As it is known, in the recent years the Republic of Turkey, having been influenced by the above-mentioned activities, introduced the International Atatürk Peace Award. By doing this, the statesmen, who have stripped concepts like freedom, equality, democracy, justice and law of their substance and who believe that they have succeeded in deceiving their own people and the international community with poor caricatures of those concepts, likewise have diluted and distorted the concept of peace. First of all, those who cannot establish democracy in all the institutions and regulations of their country, those who ignore human rights and who want to destroy all values of the people with racist and ravaging policies should not have the right to use a high concept like peace, insincerely, for their political purposes. Which country, where people are tortured and killed in custody, made to “disappear”, shot in the middle of a street; where villages and towns are evacuated, forests are burned down, gives a peace award?", "No. Nobody has the right to pollute the concept of peace and no one should. It is known that the roots of the increasingly dirty war in Turkey today go back to the first years of the Republic. And who is responsible for the period between 1925 and 1938 when the identity and rights of the Kurdish people were denied and the experiments of brutal genocide were put into practice? Who is the architect of the policies of the Republic of Turkey which aimed at denying and exterminating Kurds from history?", "What is it, if not hypocrisy, to pronounce the name of the person who is the godfather of today’s dirty war together with the word ‘peace’ and to organize a peace prize in his name? No!...No!... No one should have the right to abuse a mighty concept like peace in such a way. In fact the reason for which Nelson Mandela, who became a symbol by fighting against racist discrimination in South Africa, refused to accept the International Atatürk Peace Award is this hypocrisy and the inhuman policies pursued against the Kurds. A committee consisting, inter alia, of state officials gave the International Atatürk Peace Award of 1995 to the Red Crescent on 19 May.", "As its name suggests, it is an international prize. Does not the fact that by giving the prize to a national institution and not to a peace defender outside Turkey, thereby, trying to avoid the risk of being rejected as it was the case with Mandela, demonstrates the helplessness and loss of credibility of the state? Is it not the Red Crescent which ignores the Kurdish villagers who were forced to live in plastic tents in urban shanty towns after their villages have been burned down, distributing candies to Kurdish children who were forced to shout “How happy I am that I am a Turk” by soldiers during the occupation of Southern Kurdistan. It also acted as a camouflage for the agents of the MIT (The National Intelligence Organisation) who were bribing in Duhok. It is the Red Crescent which was warned and censured several times by the International Red Cross for disregarding the Geneva Conventions.", "It should not be a surprise if this award is given to the Special War Unit next year. It is a peculiar manifestation of history that while the State of Turkey is lowering itself, peace awards from Denmark, Germany and Vienna are being given to the Diyarbakır MP of the DEP in prison, Leyla Zana, for being a symbol of the Kurdish people’s fight for freedom and democracy. Leyla Zana is also a strong candidate for the Nobel Peace Prize. Here is the state policy for an unjustified and hypocritical war on one side and the legitimate and just fight for freedom on the other side. These are the two sides of the same medal and their difference reflects itself on the international level.", "Once more history gives its final judgment: those who try to block the way of the wheel of history will lose and those who are correct and who support peace and freedom will absolutely win.” 7. On 19 July 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant under Article 312 § § 2 and 3 of the Criminal Code with incitement to hatred and hostility by making distinctions on the basis of race and region. 8. In the context of the criminal proceedings against him, the applicant acknowledged that he drafted the article. He further asserted that he expressed his opinions and that his article did not contain any element which could constitute an offence.", "9. On 3 April 1996 the Istanbul State Security Court, composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to two years’ imprisonment and a fine of 600,000 Turkish liras. The judgment reasoned as follows: “Considering the article titled “The International Atatürk Peace Award” in its entirety, the court is of the opinion that the accused committed the offence of incitement to hatred and hostility by making distinctions on the basis of race and region since he stated that people with Kurdish origin living in the eastern and south‑eastern regions of Turkey were subjected to inhuman treatment on the basis of their identity.” 10. On 3 July 1996 the Court of Cassation upheld the judgment of the first-instance court. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 11. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Karkın v. Turkey, no. 43928/98, §§ 17 and 19, 23 September 2003, Özel v. Turkey no. 42739/98, §§ 20-21, 7 November 2002, and Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE CONVENTION 12. The applicant complained that his criminal conviction had infringed his rights to freedom of thought and expression. He relied on Articles 9 and 10 of the Convention. 13.", "The Court considers that these complaints should be examined from the standpoint of Article 10 of the Convention alone (see İncal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1569, § 60) , 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...” 14.", "The Court notes at the outset that it has examined a number of cases raising similar issues to those in the present case and found a violation of Article 10 of the Convention (see, in particular, the following judgments: Ceylan v. Turkey [GC], no. 23556/94, § 38, ECHR 1999‑IV, Öztürk v. Turkey [GC], no. 22479/93, § 74, ECHR 1999‑VI, İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, 10 October 2000, § 80). 15.", "In the instant case, it considers that the conviction complained of constituted an interference with the applicant’s right to freedom of expression protected by Article 10 § 1. It notes that the interference was prescribed by law and pursued a legitimate aim, that of protecting territorial integrity, for the purposes of Article 10 § 2 (see Yağmurdereli v. Turkey, no. 29590/96, § 40, 4 June 2002). The Court will therefore confine its examination of the case to the question as to whether the interference was “necessary in a democratic society”. 16.", "The Court has examined the present case in the light of its case-law and considers that the Government have not submitted any facts or arguments capable of leading to a different conclusion than in the above‑mentioned judgments (see paragraph 14 above). It has had particular regard to the words used in the impugned article. It also took into account the background to the case and, in particular, the problems linked to the prevention of terrorism (see the İbrahim Aksoy and İncal judgments, cited above, § § 60 and 58 respectively). 17. In this connection, the Court observes that the article in question consisted of a critical assessment of Turkey’s policies concerning the Kurdish problem whereas the State Security Court opined that the impugned article contained words aimed at inciting the people to hatred and hostility.", "The Court has examined the reasons given in the State Security Court’s judgment and does not consider them sufficient to justify the interference with the applicant’s right to freedom of expression (see, mutatis mutandis, Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 58, 8 July 1999). It considers, among other things, that although certain particularly acerbic passages of the article paint an extremely negative picture of the Turkish State and thus give the narrative a hostile tone, they do not encourage violence, armed resistance or insurrection and do not constitute hate speech. In the Court’s view, this is the essential factor (contrast Sürek v. Turkey (no.", "1) [GC], no. 26682/95, § 62, ECHR 1999‑IV, and Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999) in the assessment of the necessity of the measure. Furthermore, the edition of 31 May 1995 of Yeni Politika, which contained the inpugned article, was seized at the printing office, before being distributed, thus, preventing the applicant to disseminate his opinions to the readers of the newspaper. The Court also takes into account the nature and severity of the penalties imposed when assessing the proportionality of the interference.", "18. Having regard to the above considerations, the Court concludes that, the applicant’s conviction was disproportionate to the aims pursued and therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19.", "The applicant submitted that his case had not been heard by an independent and impartial tribunal in breach of Article 6 § 1 of the Convention, having regard to the presence of a military judge on the bench of the Istanbul State Security Court. The relevant parts of Article 6 § 1 of the Convention provide: “ In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...” 20. The Court has examined a large number of cases raising similar issues to those in the present case and found a violation of Article 6 § 1 of the Convention (see Özel, cited above, §§ 33-34, and Özdemir, cited above, §§ 35-36). 21. It considers that the Government have not submitted any facts or arguments capable of leading to a different conclusion in the instant case.", "It considers it understandable that the applicant – prosecuted in a State Security Court for offences relating to “national security” – should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service. On that account he could legitimately fear that the State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. Consequently, the applicant’s doubts about that court’s independence and impartiality may be regarded as objectively justified (see Incal, cited above, § 72 in fine). 22. In conclusion, the Court considers that the State Security Court which tried and convicted the applicant was not an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 23. The applicant alleged that the restrictions on his right to freedom of expression, applied pursuant to Article 312 of the Criminal Code, were inconsistent with the legitimate aims set out in Article 10 § 2 and were thus contrary to Article 18 of the Convention, which provides: “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 24. The Court found that the restrictions which were applied to the applicant’s right to freedom of expression were consistent with the legitimate aims contained in Article 10 § 2 of the Convention (see paragraph 15 above). 25.", "It considers therefore that there has been no violation of Article 18 of the Convention. IV. 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 to have sustained pecuniary damage which he assessed at 42,000 euros (EUR) due to loss of income. 28. He also claimed compensation for non-pecuniary damage which he assessed at EUR 45,000. 29. The Government contested those claims.", "30. As regards the alleged loss of income, the Court considers that the evidence submitted does not lend itself to a precise quantification of the applicant’s loss of earnings resulting from the violation of Article 10 of the Convention (for a similar finding, see Karakoç and Others v. Turkey, nos. 27692/95, 28138/95 and 28498/95, § 69, 15 October 2002). The Court accordingly dismisses this claim. 31.", "With regard to non-pecuniary damage, the Court considers that the applicant may be taken to have suffered a certain amount of distress in the circumstances of the case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, it awards him EUR 5,000 for non‑pecuniary damage. 32. Where the Court finds that an applicant was convicted by a tribunal which was not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted a prompt retrial by an independent and impartial tribunal (Gençel, cited above, § 27). B.", "Costs and expenses 33. The applicant also claimed EUR 6,036 for costs and expenses incurred in the domestic courts and EUR 4,174.8 for those incurred before the Commission and the Court. 34. The Government contested those claims. 35.", "Making its own estimate based on the information available, the Court considers it reasonable to award the applicant EUR 3,000 under this head. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 10 of the Convention; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been no violation of Article 18 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; (iii) EUR 3,000 (three thousand 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerGeorg RessRegistrarPresident [1] In its composition before 1 November 2004." ]
[ "FIFTH SECTION CASE OF SVYSTORUK v. UKRAINE (Application no. 50067/13) JUDGMENT This version was rectified on 3 January 2017 under Rule 81 of the Rules of Court STRASBOURG 24 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Svystoruk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Faris Vehabović,Carlo Ranzoni, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50067/13) 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 Petrovych Svystoruk (“the applicant”), on 26 July 2013.", "2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna. 3.", "On 29 October 2015 the application was communicated to the Government. THE FACTS 4. The applicant was born in 1944 and lives in Kremenchuk. 5. On 11 August 2007 Inna Puzyr, the applicant’s daughter, was found stabbed to death in bushes by the roadside.", "6. On the same date the Poltava Regional Police instituted criminal proceedings into the suspected murder. 7. On an unspecified date the applicant was called to testify as a witness in connection with the above investigation, and for this reason his subsequent request to join the proceedings as an aggrieved party was refused. 8.", "On 18 August 2007 V.K., the applicant’s other daughter, joined the proceedings as an aggrieved party. 9. On 25 August 2007 O.T., a resident of a village close to the place of where the applicant’s daughter was stabbed, was arrested on suspicion of having committed this crime. Having initially pleaded guilty, O.T. subsequently retracted his confession, denying any involvement with the crime and complaining that the police had subjected him to ill-treatment.", "10. On an unspecified date the criminal proceedings against O.T. were discontinued as no evidence had been collected to corroborate his confessional statements, which were inconsistent with other evidence on file. 11. On 7 September 2007 V.K.", "complained to the Chief of the local police department that the investigation into the case had been ineffective. She also complained that she had not been able to participate in it in a meaningful way, as she had not been allowed to consult the case file and had been very poorly informed about the measures undertaken by the authorities with a view to identifying her sister’s murderer. 12. On 12 September 2007 the Acting Chief of the Poltava Regional Police informed V.K. that he had detected no irregularities in the manner in which the investigation had been conducted and that ‒ according to the applicable law ‒ aggrieved parties were not entitled to consult case files until completion of the pre-trial investigation, that is to say, until the likely perpetrator has been identified and committed for trial.", "13. On 10 October 2007 the investigation was suspended as no leads had been identified. 14. On 30 October 2007 the District Prosecutor’s Office quashed the decision to suspend the proceedings and ordered a further inquiry, noting that the investigation had been carried out in a perfunctory manner. 15.", "On 20 November 2007 V.K. again complained to the Kremenchuk prosecutor’s office that the renewed investigation had, in her view, been perfunctory and ineffective. She submitted that she suspected R.P., her sister’s husband, of having murdered her and referred to numerous delays in carrying out the investigative activities, which ‒ in her view ‒ had resulted in the loss of important evidence. 16. On 23 January 2008 the Chief of the Poltava Regional Department of the Interior acknowledged to V.K.", "that there had been many inadequacies in the investigation of her sister’s violent death and notified her that the chief and deputy chief of the investigative department had been reprimanded for poor planning of their department’s work and supervision of their subordinates. Investigator S.Y., who had worked on the case, had been replaced by V.N., who had extensive expertise in investigating homicide and other violent crimes. 17. On 5 March 2008 R.P. was arrested and confessed to having killed the applicant’s daughter because she had refused to give him a divorce.", "18. On 6 March 2008 a reconstruction of the crime scene was organised, at which R.P. demonstrated how he had committed the murder. 19. On an unspecified date R.P.", "retracted his confession, claiming it had been given under duress from the police. 20. On 15 August 2008 the proceedings in respect of R.P. were discontinued in the light of irreconcilable discrepancies between his retracted confessional statements and other evidence on file. As there were no further leads pointing to a potential perpetrator, the proceedings were suspended.", "21. On 26 March 2009 the Poltava Regional Prosecutor’s Office notified V.K. ‒ in response to an enquiry from her concerning progress in the case ‒ that unspecified operative and inquisitorial activities had been underway, but that no leads had been uncovered. 22. Following a new complaint by V.K.", "concerning the inadequacy of the investigation, on 20 May 2009 the Deputy Minister of Interior ordered a renewal of proceedings. Having consulted the case file, he noted that leads to at least two potential perpetrators had not been properly followed up and identified some twenty-five investigative steps which could have been taken. He also stated that, in his view, virtually no action aimed at identifying the murderer had been taken in 2008, that the operative officers had carried out the instructions received from the investigative officers in a perfunctory manner, and that the investigative and operative departments needed to streamline their methods of communication. 23. On 28 December 2009 S.J., a new investigator assigned to the case, suspended the proceedings, having uncovered no new leads after completion of further investigative steps.", "24. The proceedings were renewed and then suspended on several further occasions, reference being made to the insufficiency of the measures taken (specifically, on 11 May 2010, 2 April and 22 October 2011). 25. On 15 April 2013, following the entry into force of the new Code of Criminal Procedure, the applicant was admitted into the proceedings as an aggrieved party and given an opportunity to consult the case file. 26.", "On 19 August 2013 the applicant complained to the Minister of Interior that, having studied the file, he found that the entire investigation had been marred by prohibitive delays and inactivity. In his view the competent authorities had, for an extensive period of time, focused predominantly on investigating the probability that his daughter had been stabbed by her husband rather than organising a prompt and comprehensive examination of the objective evidence. A lot of time had been lost. The applicant also gave several suggestions as to further potential witnesses to be questioned, the specific type of the knife which could have been used to stab his daughter, and the circle of persons who might possess such a weapon. 27.", "On 2 October 2013 the Deputy Chief of the investigative department of the Poltava Police informed the applicant that no new leads had been uncovered, but his suggestions would be taken into account in further investigation. 28. On several subsequent occasions the police authorities provided similar answers to further complaints and suggestions made by the applicant and V.K. concerning investigative steps that could be taken. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 29. The applicant complained that the investigation into the circumstances of his daughter’s violent death had been ineffective. He relied on Article 2 of the Convention, which, insofar as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law ...” A. Admissibility 30. The Government did not comment on the admissibility of the present application.", "31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 32. The applicant alleged that the State authorities had fallen short of their obligation to identify those responsible for his daughter’s violent death. In particular, the relevant investigation had been marred by unjustifiable protractions and repeated suspensions of the proceedings leading to the deterioration of evidence and by the failure of the authorities to investigate various leads concurrently and comprehensively. Moreover, the applicant had not been able to participate in the investigation effectively because of the substantial delay in his being admitted into the proceedings and difficulties in obtaining meaningful access to relevant case file material and information concerning progress in the case, amongst other factors. 33.", "The Government disagreed. They alleged that they had duly discharged their Convention duty to investigate the murder of the applicant’s daughter. In particular, the investigation had been thorough and the police authorities had taken all possible measures to collect the necessary evidence. The fact that the perpetrator had not been identified could not as such be held against them. 34.", "Examining the facts of the present case in light of its established case-law, the Court reiterates, in particular, that Article 2 of the Convention obliges the authorities to investigate violent deaths by taking all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see, among many other authorities, Muravskaya v. Ukraine, no. 249/03, § 41, 13 November 2008). 35. It is apparent from the evidential material on file that the investigation seeking to identify the murderer of the applicant’s daughter, initiated in August 2007, has been ongoing for over nine years without foreseeable progress.", "The Court reiterates that a substantial delay in an investigation concerning a violent death can in and of itself undermine public confidence in the maintenance of the rule of law and raise an issue under Article 2 of the Convention, unless it is justified by objective circumstances (see, for example, Merkulova v. Ukraine, no. 21454/04, §§ 50‑51 and 61, 3 March 2011). 36. This is all the more pertinent where the investigation is characterised, as in the present case, by repeated suspensions and resumptions of the investigation with reference to the insufficiency of the measures taken by the inquiring officers (see, for instance, Dudnyk v. Ukraine, no. 17985/04, § 36, 10 December 2009 and Pozhyvotko v. Ukraine, no.", "42752/08, § 40, 17 October 2013) leading to the progressive deterioration of evidence (see, for instance, Khaylo v. Ukraine, no. 39964/02, § 68, 13 November 2008, and Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011). The Court also notes that it has been recognised at the domestic level that, notwithstanding the numerous actions taken, the proceedings were consistently marred by protractions in the collection of evidence and repeated failures of the police officers to abide by the instructions of their supervisors (see paragraphs 14, 16, 22 and 24 above). 37.", "The Court also takes note of the applicant’s complaints concerning the difficulties encountered by him and his surviving daughter in obtaining information on the progress of the case and involvement in the decision‑making process. In this regard the Court reiterates that an effective investigation requires that the actions of the authorities be subject to public scrutiny, and that the deceased person’s next-of-kin must be able to take an active part in it, not least by being granted prompt access to relevant evidential material and decisions (see, for example, Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 74-75, 4 April 2006; Kachurka, cited above, § 51; and Mikhalkova and Others v. Ukraine, no. 10919/05, § 48, 13 January 2011). 38.", "Overall, based on the evidential material on file, the Court cannot reach the conclusion that the authorities did everything in their power to ensure prompt and comprehensive action in collecting evidence with the aim of identifying and bringing to justice the persons responsible for the murder of the applicant’s daughter. 39. There has accordingly been a violation of Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage. 42. The Government submitted that this claim was exorbitant and unsubstantiated.", "43. The Court considers that the applicant must have suffered anguish and distress on account of the events leading to the finding of the violation in the present case which cannot be compensated for by the finding of a violation alone. Ruling on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 44.", "The applicant also claimed EUR 2,553.60 in legal fees and administrative and postal expenses incurred by his legal counsel, Mr M.O. Tarakhkalo, in connection with his representation before the Court. 45. The Government submitted that this sum was exorbitant. 46.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the fact that the applicant has already been granted legal aid, the Court considers it reasonable to award the applicant the sum of EUR 650 for legal fees. This amount is to be transferred directly into the account of the applicant’s lawyer, Mr Tarakhkalo (see Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 145, 10 November 2016)[1]. C. Default interest 47.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 2 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer, Mr Tarakhkalo[2]; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginKhanlar HajiyevActing Deputy RegistrarPresident [1]. Rectified on 3 January 2017: “This amount is to be transferred directly into the account of the applicant’s lawyer, Mr Tarakhkalo (see Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 145, 10 November 2016)” has been added.", "[2]. Rectified on 3 January 2017: “(…), to be transferred directly to the account of the applicant’s lawyer, Mr Tarakhkalo” has been added." ]
[ "FOURTH SECTION CASE OF ANCA AND OTHERS v. ROMANIA (Application no. 45653/13 and 7 other applications) JUDGMENT STRASBOURG 14 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Anca and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Georges Ravarani,Marko Bošnjak, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 23 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.", "2. The applications were communicated to the Romanian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4.", "The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table.", "The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 ‑141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012). 8.", "In the pilot case of Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS 11. The applicants in applications nos.", "45653/13, 76774/13, 16979/14, 18621/14 and 30310/14 also raised other complaints under Articles 3, 8 and 14 of the Convention. 12. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017), the Court considers it reasonable to award the sums indicated in the appended table. The applicant in application no.", "18621/14 failed to respond to the Court’s letter of 26 March 2015, inviting him to submit his just satisfaction claims in accordance with Rule 60 of the Rules of the Court. The Court therefore makes no award to this applicant. 15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the inadequate conditions of detention, as set out in the appended table, admissible, and the remainder of applications nos. 45653/13, 76774/13, 16979/14, 18621/14 and 30310/14 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtVincent A. De Gaetano Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention(inadequate conditions of detention) No. Application no.", "Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Sq. m. per inmate Specific grievances Amount awarded for non-pecuniary damage per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2] 45653/13 08/07/2013 Gheorghe Cosmin Anca 23/05/1984 Colibași Penitentiary 20/04/2011 to 11/07/2013 2 year(s) and 2 month(s) and 22 day(s) Târgu-Jiu Penitentiary 11/07/2013 to 30/06/2014 11 month(s) and 20 day(s) Timișoara Penitentiary 30/07/2013 to 28/04/2014 8 month(s) and 30 day(s) Colibași Penitentiary 30/06/2014 pending More than 3 year(s) and 3 month(s) and 18 day(s) 1.3-2.3 m² 0.9-2.2 m² 1.6-2.4 m² 1.3-2.3 m² Overcrowding, lack of or inadequate hygienic facilities, lack or inadequate furniture, poor quality of food, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, lack of a place for serving meals, lack of laundry facilities. Overcrowding, insufficient number of sleeping places, lack of or inadequate hygienic facilities, lack of a storing space and of a place for serving meals, poor quality of food, infestation of cell with insects/rodents, no or restricted access to shower, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air. Overcrowding, bunk beds, lack of or poor quality of bedding and bed linen, lack of an adequate room for serving meals, poor quality of food, lack of or inadequate hygienic facilities, lack of or insufficient natural light, lack of an adequate storing space, lack of or insufficient physical exercise in fresh air, lack of laundry facilities. Overcrowding, lack of or inadequate hygienic facilities, lack or inadequate furniture, poor quality of food, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, lack of a place for serving meals, lack of laundry facilities.", "5,000 56513/13 28/08/2013 Ciulei-Lucian Stan 16/05/1979 Mărgărit Ionela Bucharest Brăila Police Inspectorate 28/11/2011 to 24/01/2012 1 month(s) and 28 day(s) Galați Penitentiary 24/01/2012 to 25/03/2014 2 year(s) and 2 month(s) and 2 day(s) 1.9 m² 1.6-2 m² Overcrowding, lack of or insufficient natural light, no or restricted access to toilet Overcrowding, poor quality of running water, lack of or insufficient natural light, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, no or restricted access to running water, no or restricted access to warm water. 3,000 75874/13 27/11/2013 Viorica-Iosefina Pilică 01/01/1975 Târgșor Penitentiary 28/05/2013 pending More than 4 year(s) and 4 month(s) and 20 day(s) 1.6-2.7 m² Overcrowding, lack of or inadequate hygienic facilities, no or restricted access to warm water, no or restricted access to running water, lack of toiletries, lack of or insufficient electric light, infestation of cell with insects/rodents, lack or inadequate furniture, lack of or poor quality of bedding and bed linen, poor quality of food, limited time to serve meals, lack of laundry facilities. 3,000 76774/13 25/11/2013 Romeo-Vlăduț Zîmbrean Sbranca 20/01/1987 Bacău Police Inspectorate 09/05/2011 to 27/09/2011 4 month(s) and 19 day(s) Bacău Penitentiary 27/09/2011 to 28/03/2014 2 year(s) and 6 month(s) and 2 day(s) 1.8-2.2 m² Lack of fresh air, lack of or insufficient natural light, lack of or inadequate hygienic facilities, no or restricted access to warm water, no or restricted access to running water, lack or inadequate furniture, lack of a place for serving meals, constant electric light. Overcrowding, infestation of cell with insects/rodents, mouldy or dirty cell, lack of or inadequate hygienic facilities, lack of or insufficient electric light, lack of or insufficient natural light, lack or inadequate furniture, lack of place for serving meals, lack of or insufficient physical exercise in fresh air, no or restricted access to warm water. 3,000 16979/14 02/06/2014 Ionuț Robert Mihai 16/02/1991 Boghină Carmen Bucharest Târgu-Jiu Penitentiary 24/10/2013 pending More than 3 year(s) and 11 month(s) and 24 day(s) 1.1-2.8 m² Overcrowding, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, poor quality of food, lack of a place for serving meals and of a storing space, infestation of cell with insects/rodents, no or restricted access to warm water, bunk beds, lack of or poor quality of bedding and bed linen, insufficient number of sleeping places for the period of 24/10/2013 to 17/03/2014.", "3,000 11 18518/14 28/03/2014 Augustin Drăgușin 31/05/1984 Codlea Penitentiary 12/09/2013 to 11/04/2014 7 month(s) Codlea Penitentiary 22/04/2014 pending More than 3 year(s) and 5 month(s) and 26 day(s) 1.1-1.9 m² 1.1-1.9 m² Overcrowding, lack of or inadequate hygienic facilities, lack of laundry facilities. Overcrowding, lack of or inadequate hygienic facilities, lack of laundry facilities. 3,000 18621/14 17/03/2014 Nicolae Dumitru 14/06/1988 Rahova Penitentiary 21/09/2010 to 24/04/2015 4 year(s) and 7 month(s) and 4 day(s) 2.6 m² Overcrowding, lack of fresh air, no or restricted access to warm water. 0 30310/14 10/04/2014 Gavril Bonaciu 12/11/1974 Oradea Police Inspectorate 05/06/2013 to 06/06/2013 2 day(s) Oradea Penitentiary 06/06/2013 to 22/07/2013 1 month(s) and 17 day(s) Satu Mare Penitentiary 22/07/2013 to 14/07/2015 1 year(s) and 11 month(s) and 23 day(s) 1 m² 1.8 m² 0.8-1.9 m² Overcrowding, lack of privacy for toilet, lack of or inadequate hygienic facilities, lack of or insufficient natural light, poor quality of food. Overcrowding, lack of or inadequate hygienic facilities, no or restricted access to warm water, infestation of cell with insects/rodents, lack of or poor quality of bedding and bed linen, lack of or insufficient physical exercise in fresh air, poor quality of food.", "Overcrowding, lack of or inadequate hygienic facilities, lack of a place for serving meals, no or restricted access to warm water, infestation of cell with insects/rodents, lack of or insufficient physical exercise in fresh air, poor quality of food. 3,000 [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants." ]
[ "SECOND SECTION CASE OF ÖZDEMİR GÜRCAN v. TURKEY (Application no. 2722/10) JUDGMENT STRASBOURG 24 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Özdemir Gürcan 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 3 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 2722/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Dudu Gamze Özdemir Gürcan (“the applicant”), on 30 December 2009.", "2. The applicant was represented by Mr M. Erdoğdu, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent. 3. On 26 April 2010 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1973 and lives in Mersin. 5. The applicant is a teacher in primary school and at the material time she was a member and secretary of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası).", "6. On 28 November 2008 the applicant participated in a demonstration organised by the above mentioned trade union on the theme “No to violence against women”. 7. On 29 June 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on the applicant for her participation in the aforementioned demonstration under Article 125 of the Law no. 657 on Civil Servants.", "8. On 10 July 2009 the applicant objected to this decision and requested its annulment. 9. On 29 July 2009 the Disciplinary Board of the Yenişehir district governor dismissed the applicant’s objection considering that the contested decision was in accordance with law and there were no grounds for its annulment. II.", "RELEVANT DOMESTIC LAW 10. A full description of relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-17, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-21, 24 March 2015). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 11. The applicant complained that the disciplinary sanction of reprimand imposed on her for her participation in trade union activities had infringed her rights under the Convention. In this regard, she relied on 11 of the Convention, which reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.", "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 12. The Government contested that argument. 13. The Court notes that in the case of Karaçay v. Turkey (no.", "6615/03, 27 March 2007), which raised issues similar to those in the present case, it observed that the sanction complained of, although very light, had been such as to dissuade trade union members from legitimate participation in strikes or other trade union actions to defend the interests of their members. Accordingly it found that the warning given to the applicant had not been necessary in a democratic society and there had been a breach of applicant’s right to freedom to demonstrate (ibid § 37; see mutadis mutandis Kaya and Seyhan v. Turkey, no. 30946/04, § 30, 15 September 2009; Şişman and Others v. Turkey, no. 1305/05, § 34, 27 September 2011; and İsmail Sezer v. Turkey, no. 36807/07, § 55, 24 March 2015).", "14. 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. 15. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 11 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 16. The applicant complained that no remedy had been available to her under the domestic law in force at relevant time, by which to challenge the disciplinary sanction imposed on her. She relied on Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”. 17. The Government contested that argument.", "18. The Court observes that the legislation in force at the relevant time precluded any application to the administrative courts for the purpose of challenging the lawfulness of the disciplinary sanctions of warning and reprimand imposed pursuant to Section 125 of the Law no. 657. 19. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of lack of an effective remedy under Turkish law, whereby the applicants could have challenged the disciplinary sanctions of warning and reprimand imposed on them (Karaçay, cited above, § 44; Kaya and Seyhan, cited above, § 41; and İsmail Sezer, cited above, § 66).", "It finds no reason to depart from that conclusion in the present case. 20. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.", "The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 11 of the Convention; 3.", "Holds that there has been a violation of Article 13 of the Convention; Done in English, and notified in writing on 24 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıJulia Laffranque Deputy RegistrarPresident" ]
[ "CASE OF KLEYN AND OTHERS v. THE NETHERLANDS (Applications nos. 39343/98, 39651/98, 43147/98 and 46664/99) JUDGMENT STRASBOURG 6 May 2003 In the case of Kleyn and Others v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza,MrL.", "Caflisch,MrsV. Strážnická, MrK. Jungwiert,MrV. Butkevych,MrsN. Vajić,MrJ.", "Hedigan,MrsW. Thomassen,MrsM. Tsatsa-Nikolovska,MrA.B. Baka,MrK. Traja,MrM.", "Ugrekhelidze,MrV. Zagrebelsky, and also of Mr P.J. Mahoney, Registrar, Having deliberated in private on 27 November 2002 and 9 April 2003, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in four applications (nos. 39343/98, 39651/98, 43147/98 and 46664/99) against the Kingdom of the Netherlands lodged between 8 July 1997 and 16 March 1998 with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-three Netherlands nationals, Mr A.A. Kleyn, Mr A. van Helden, Mrs C.H.", "van Helden-Schimmel, Mr A. Hougee, Mrs O.L. Hougee-van Frankfoort, Mr C.M. van Burk, Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn, Mr M.A.J.E.", "Raymakers, Mrs P.W.N. Raymakers-Spreeuwenberg, Mr A.J.Th. Berndsen, Mrs B.A.G. Berndsen-Wezendonk, Mr P. Bunschoten, Mr W.F. van Duyn, Mr C.J.", "Hanhart, Mr J.H. Kardol, Mr C. de Kreij, Mr G.J. van Lent, Mrs G. van Lent-de Kroon, Mr S.J.B.A. Pompen, Ms C.M.M. Wennekes and Mr M. Witvliet, and by twelve companies, Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Grasshopper Reclame, M.C.", "Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., Kuwait Petroleum (Nederland) B.V., Sterk Technisch Adviesbureau B.V., Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V. and Maatschap Takel- en Bergingsbedrijf Hanhart (“the applicants”). 2. The applicants in applications nos. 39343/98, 39651/98 and 43147/98 were represented by Mr K.F. Leenhouts, a lawyer practising in Tiel.", "The applicants in application no. 46664/99 were initially represented by the Vereniging Landelijk Overleg Betuweroute (Association for Nationwide Consultation on the Betuweroute), which subsequently delegated its representation of these applicants to Mr Leenhouts. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. 3.", "The applicants alleged that, from an objective point of view, the Administrative Jurisdiction Division of the Netherlands Council of State (Raad van State) could not be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention in that the Council of State combined both advisory and judicial functions. They also raised further complaints under Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1. 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 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.", "On 3 May 2001 this Chamber decided to join the applications, to give notice of the complaint of the lack of objective independence and impartiality of the Administrative Jurisdiction Division of the Council of State to the Government (Rule 54 § 2 (b)) and to declare inadmissible the remainder of the applications. 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). On 2 July 2002 a Chamber of that Section, composed of Mr J.-P. Costa, Mr A.B.", "Baka, Mr Gaukur Jörundsson, Mr K. Jungwiert, Mr V. Butkevych, Mrs W. Thomassen and Mr M. Ugrekhelidze, judges, and Mrs S. Dollé, 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). 7. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 8. The applicants and the Government each filed written observations on the admissibility and merits.", "In addition, third-party comments were received from the Italian and French Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3). The applicants replied to those comments (Rule 61 § 5). 9. A hearing on admissibility and the merits took place in public in the Human Rights Building, Strasbourg, on 27 November 2002 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrR.A.A.", "Böcker, Ministry of Foreign Affairs,Agent,MrE. Daalder, Deputy State Advocate,Counsel,MsB. Drexhage, Ministry of the Interior and Kingdom Relations,MsL. Ling Ket On, Ministry of Justice,MsW. Warmerdam, Ministry of Transport, Advisers; (b) for the applicantsMrK.F.", "Leenhouts, MrT. Barkhuysen, Counsel,MsC. Fenijn,Adviser. The applicants Mr van Duyn and Mr Raymakers also attended the hearing. 10.", "The President of the Court gave the applicants’ representatives leave to use the Dutch language (Rule 34 § 3). The Court heard addresses by Mr Böcker and Mr Daalder, and by Mr Leenhouts and Mr Barkhuysen. 11. Under the provisions of Article 29 § 3 of the Convention and Rule 54A § 3, the Court decided to examine the merits of the applications at the same time as their admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The applicants Application no. 39343/98 12. Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company (besloten vennootschap met beperkte aansprakelijkheid) Kleijn Financierings- en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V.", "He is also part-owner of the restaurant “De Goudreinet”. Application no. 39651/98 13. Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel.", "Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company’s business premises. Grasshopper Reclame is a registered partnership (vennootschap onder firma) established under Netherlands law.", "Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, who were born in 1947 and 1948 respectively, live above the company’s business premises. M.C. Gerritse B.V. is a limited liability company.", "Its premises are located in Tiel. Texshop B.V. is a limited liability company. Its premises are located in Tiel. Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel.", "Maasglas B.V. is a limited liability company. Its premises are located in Tiel. Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren. Kuwait Petroleum (Nederland) B.V. is a limited liability company established in Rotterdam.", "It owns the petrol station operated by Mr van Burk. Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk. Kleijn Financierings- en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J.", "Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part- owners of the restaurant “De Goudreinet” that is located on one of the plots. Application no. 43147/98 14. Mr M.A.J.E. Raymakers and Mrs P.W.N.", "Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk-Avezaath. Application no. 46664/99 15. Mr A.J.Th. Berndsen and Mrs B.A.G.", "Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen. Mr P. Bunschoten was born in 1955 and lives in Herveld. Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn. Mr C.J.", "Hanhart was born in 1938 and lives in Tiel. Mr J.H. Kardol was born in 1938 and lives in Meteren. Mr C. de Kreij was born in 1948 and lives in Giessenburg. Mr G.J.", "van Lent was born in 1944 and lives in Ochten. Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld. Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel. Takel- en Bergingsbedrijf Hanhart is a partnership (maatschap) of which Mr C.J.", "Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel. Ms C.M.M. Wennekes was born in 1949 and lives in Herveld.", "Mr M. Witvliet was born in 1944 and lives in Kesteren. B. Factual background 16. The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into the North Sea at or near the town of Rotterdam. These rivers have long been used for the transport of merchandise to and from a large part of the north-western and central European hinterland, and in particular the vast industrial area situated along the River Ruhr in Germany.", "Over the centuries this geographical situation has allowed the Netherlands to become one of Europe’s major transport hubs, with Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods. 17. In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of central and east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic. 18. Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable.", "It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks. 19. In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles and London. At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment.", "C. The Transport Infrastructure Planning Bill (Tracéwet) and the advisory opinions of the Council of State (Raad van State) 20. On 1 July 1991, in accordance with section 15 of the Council of State Act (Wet op de Raad van State) and upon a proposal of the Minister for Transport and Communications (Verkeer en Waterstaat) and the Minister for Housing, Planning and Environment Management (Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer), the Queen transmitted the Transport Infrastructure Planning Bill (Tracéwet) to the Council of State for an advisory opinion. 21. The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra-regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities.", "22. The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads: “The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects.", "The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government’s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.” 23. In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities.", "It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards (waterschappen) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill. 24. Point 8 of the advisory opinion reads: “Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [tracévaststelling] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra‑)national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them.", "In that case, the routing plans [tracés] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.” 25. The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads: “The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.” 26. In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities.", "It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision. 27. As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows: “With the approval of the Council of Ministers (decision of 24 January 1992), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘Betuweroute’ [railway].", "The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.” 28. The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State’s criticism. The amendments were submitted to the Council of State for advice on 6 February 1992.", "29. In its advisory opinion of 8 May 1992, the Council of State considered, inter alia: “... it desirable to indicate in section 24g that the notions ‘high-speed railway’ and ‘Betuweroute’ railway relate to specific [railway] connections between specifically named places.” 30. The ministerial reply of 19 May 1992 to this recommendation states: “This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘Betuweroute’ [railway] to the Rotterdam-Zevenaar route.” 31. The government then submitted the bill to the Lower House (Tweede Kamer) of Parliament, together with the Council of State’s advisory opinion and the ministers’ comments.", "The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance. D. The planning process of the Betuweroute railway 1. The preparatory stages 32. An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) – known as the “Betuwe line” (Betuwelijn) – links the city of Rotterdam to the town of Elst.", "It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways (Nederlandse Spoorwegen – “the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient. 33. This led the government to reject that idea.", "Instead, the government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “Betuweroute”, along the A15 motorway. The NS was required to prepare an environmental impact report (milieu-effectrapportage). 2. Outline Planning Decision – Part 1 34. On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision (Planologische Kernbeslissing) within the meaning of section 2a of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening), which later became known as “Outline Planning Decision – Part 1”.", "The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette (Staatscourant) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received.", "35. On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation in the matter of cross-border railway communication. The agreement provided – subject to the conclusion of procedures prescribed by national law – for, inter alia, the building of a new railway from Rotterdam to the German border via Zevenaar. There were to be two border crossings, one at Oldenzaal/Bad Bentheim and the other at Venlo/Kaldenkirchen. The agreement also provided for corresponding measures to be taken on the German side and for a time frame.", "3. Outline Planning Decision – Part 2 36. On 18 April 1993 the government published a document entitled “Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision – Part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, that is provinces, municipalities and regional surface waterboards. Advice obtained from the Netherlands-German Planning Board (Nederlands-Duitse Commissie voor de Ruimtelijke Ordening), the Environmental Impact Reports Board (Commissie milieu-effectrapportage), the Planning Advisory Board (Raad van Advies voor de Ruimtelijke Ordening) and the Traffic Infrastructure Consultation Body (Overlegorgaan Verkeersinfrastructuur) was also included in this document, which became known as Outline Planning Decision – Part 2.", "4. Outline Planning Decision – Parts 3 and 3A 37. On 18 May 1993 the government published their views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval. This document became known as Outline Planning Decision – Part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision – Part 3 back to the government with its comments.", "38. The government made certain modifications. The resulting document, which became known as Outline Planning Decision – Part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval. 5. Outline Planning Decision – Part 4 39.", "Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House (Eerste Kamer) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994. 40. Outline Planning Decision – Part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the government, and giving reasons for the choices made. It was stated that Rotterdam, the Netherlands’ main port, and Schiphol Airport, now served most of the European continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone.", "Moreover, much of the European hinterland could not be reached by water. Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of eastern Europe the railway infrastructure was better developed and in a better state of repair than the roads. 41. Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads.", "Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community also provided for the development of new railways. 42. The explanatory memorandum contained summaries of studies – additional to that undertaken by the NS in 1991 – that had been commissioned by the government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both studies concluded that the Betuweroute would be profitable.", "They were scrutinised by the Central Planning Office (Centraal Planbureau). The results of this appraisal were also rendered in summary form. The government considered that although the conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable. 43. Other alternatives were taken into consideration.", "These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany (the “Brabantroute”), used mainly for passenger traffic, and making it more suitable for the transport of goods. This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems. 44. Alternatives not involving railways, which had been suggested after Outline Planning Decision – Part 1 had been laid open for public inspection, were discarded in view of the need to connect to the existing railway infrastructure in the rest of Europe.", "The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were undergoing further development. 45. Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision – Part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level. These were considered, but rejected as the cost would be prohibitive.", "A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen. 46. Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it.", "The actual route was set out in sketch plans, with reasons being given for the choices made and for the rejection of alternatives. 47. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance – Besluit geluidhinder spoorwegen) the maximum permissible noise level was 60 decibel ampere (dBA) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens.", "Exceptionally, noise levels of up to 70 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible, by screening and other measures, to reduce the combined noise levels to 60 dBA. 48. Some 150 residential buildings were found to be located within 50 m of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function.", "Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels. 49. The danger that might be result from the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas.", "The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the routing decision. 50. There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975,000,000 would be paid out of the State budget.", "The remaining NLG 5,163,000,000 would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375,000,000 required to meet objections and special requests made by individuals and local authorities. 51. A new government took office on 22 August 1994, which in pursuance of agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee (the “Hermans Committee”), the new government decided that the plan should go ahead.", "Its views were made public in a letter sent by the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the government’s views. 6. The Betuweroute Routing Decision (Tracébesluit) 52. In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels.", "Some 5,500 reactions were received from individuals, non‑governmental organisations and local-government bodies. These led to modifications, which were incorporated into the draft routing decision. 53. The draft routing decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local-government bodies.", "Changes were considered, and eventually incorporated into the final routing decision, in so far as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise-reduction measures in addition to those foreseen in Outline Planning Decision – Part 4. 54. The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations – not concerned by the present case – for which further planning was required.", "55. The routing decision comprises twenty-four Articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made. 56. A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated.", "It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary regardless of the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, other measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to the accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision – Part 4.", "Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas (stiltegebieden – “silent areas”). The residential function of buildings where the noise levels would be excessive would have to be terminated. A detailed report setting out the noise levels for each municipality was appended to the routing decision. 57. Compensating measures for the preservation of the environment and the existing landscape were to include, among other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation.", "Special measures were also envisaged for the protection of any known archaeological sites. 58. Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas. The need, at some locations, for cleaning polluted soil was noted. 59.", "Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway’s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths – safety was the main consideration. Changes to existing ditches and waterways were unavoidable. Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date. E. Appeals against Outline Planning Decision – Part 3A and the Betuweroute Routing Decision 1.", "Appeals against Outline Planning Decision – Part 3A 60. A total of 173 appeals against Outline Planning Decision – Part 3A were lodged with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, many jointly by a plurality of appellants. With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision – Part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected. 61.", "The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors (Staatsraden) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively. 62. On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision.", "It rejected all the complaints of a general nature. 63. As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive route of the railway. It therefore limited the scope of its review, for each separate location, to the question whether the government could reasonably have set the band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision.", "64. One group of general complaints addressed, inter alia, the assessment made by the government of the need for a new railway. These were rejected with reference to government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the government’s assessment of the need to construct the railway did not appear incorrect or unreasonable. 65.", "Another group of general complaints challenged the government’s estimates of the railway’s macro-economic effects and its profitability and the financial calculations underlying the government’s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned. 66. A further group of general complaints challenged the government’s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost-effective solution and to use only proven technology.", "Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision. 67. Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A (and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case.", "68. As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation. 69. The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision – Part 3A were annulled. 2.", "The appeals against the Betuweroute Routing Decision 70. In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed. Some challenged the government’s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature.", "Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels. 71. The composition of the bench of the Administrative Jurisdiction Division dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against Outline Planning Decision – Part 3A (see paragraph 61 above). It commenced its examination of the appeals on 18 November 1997. 72.", "In the course of a public hearing held on 2 December 1997, Mr and Mrs Raymakers challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the councillors of that Division with the exception of the extraordinary councillors (Staatsraden in buitengewone dienst), and in the further alternative, the councillors sitting on the case, on the ground of lack of impartiality. They argued that, since the Plenary Council of State (Volle Raad) was involved in advising the government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted. 73. A hearing on this challenge was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal, that is Mr E. Korthals Altes (President), Mr A.G. van Galen and Mr C. de Gooyer (members), all of whom were extraordinary councillors of the Council of State. 74.", "Mr and Mrs Raymakers cited the European Court’s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxembourg Conseil d’Etat and quoted several comments published in the legal press by learned authors. 75. Given that the Council of State’s advice on the introduction of the Transport Infrastructure Planning Act had been worded “in generally positive terms” and therefore conflicted with these applicants’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal.", "The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case. 76. On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, under section 8(15) of the General Administrative Law Act (Algemene Wet Bestuursrecht), a challenge could only be directed against judges who were dealing with the case of the party concerned.", "As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act had provided otherwise, no member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, in so far as the applicants’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants’ appeal, it was inadmissible. The challenge directed against the members who were so involved was rejected in the following terms: “The Division considers that under section 8(15) of the General Administrative Law Act each of the members who decide a case can be removed from it [gewraakt] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case. Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge’s removal from a case.", "For this reason alone the appellants’ submissions at the hearing cannot lead to their application being granted. As to the appellants’ reliance on Procola, the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.” 77. The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division delivered its decision, which ran to 354 pages. 78.", "General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all – including complaints about the environmental impact report – were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision – Part 3A. The question was no longer whether the building of the Betuweroute was acceptable, but only whether, in coming to the routing decision, the government could reasonably have decided as it had. 79.", "The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by the Administrative Jurisdiction Division. It held that, under section 24(5) of the Transport Infrastructure Planning Act, the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that, therefore, it was normal that a routing decision was already taken before the outline planning decision had become final. It further considered that it did not follow from the Transport Infrastructure Planning Act that where, like in the present case, a separate appeal lay against an outline planning decision, no routing decision could be taken before the outline planning decision had become final. The mere fact that the time-limits for appealing started to run independently did not, according to the Administrative Jurisdiction Division, alter the tenor of section 24(5) of the Transport Infrastructure Planning Act that no final outline planning decision was required for a routing decision to be taken on the basis of that decision. 80.", "As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained. Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest.", "Moreover, the government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the routing decision provided that new development which would increase it within 30 m from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis. 81. As to vibration levels, the Administrative Jurisdiction Division held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants.", "Nor was the assessment of the likely nuisance caused by vibration unreasonable per se. Moreover, the government had undertaken to provide active monitoring (that is, to measure vibration levels of its own motion) in all residential buildings located within 50 m of the railway once it was in use, and passive monitoring (that is, to measure vibration levels after complaints were received) in residential buildings located 50 to 100 m from the railway. The government would then deal with unacceptable nuisance on a case-by-case basis. Specific problems raised by appellants would be dealt with individually. 82.", "With regard to general complaints about the arrangements for compensating damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible. 83. As to the appeal lodged by Mettler Toledo B.V. (no.", "39651/98), whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, the Administrative Jurisdiction Division noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company’s business. That being so, Mettler Toledo B.V.’s claims could not be dismissed as unfounded; to that extent, the appeal was allowed. 84. Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available.", "The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant. 85. With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98) and Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P.", "Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded. The remainder of their appeal was dismissed.", "86. As regards the appeal lodged by Mr M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act (Onteigeningswet). As to his complaint about nuisance from noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was well-founded.", "The remainder was rejected. 87. The Administrative Jurisdiction Division rejected the appeals lodged by the other individual applicants and applicant companies. 88. In so far as the appeals were considered well-founded, the Administrative Jurisdiction Division annulled the routing decision and made an award in respect of costs.", "F. Subsequent developments 1. The 1998 routing decisions 89. In a letter to the Lower House of Parliament of 13 July 1998 the Minister for Transport and Communications, writing also on behalf of the Minister for Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95% of the routing decision intact. It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work. It was expected that the Betuweroute railway would be operational by 2005.", "90. In so far as minor parts of the routing decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded. In so far as relevant to the present case, the minister expected that in all but one or two cases changes to the original routing decision would prove unnecessary. 91. New partial routing decisions were taken in the course of 1998.", "An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999. The appeal lodged by Sterk Technisch Adviesbureau B.V. was dismissed by the Administrative Jurisdiction Division on 25 October 1999. The appeals lodged by Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn and Mr A.A. Kleyn were dismissed by the Administrative Jurisdiction Division on 25 July 2000.", "Mr Witvliet apparently did not lodge an appeal against any of the 1998 routing decisions. 2. The Betuweroute Note 92. In response to suggestions made in the media to reconsider the Betuweroute project, the Minister for Transport and Communications sent a note (Notitie Betuweroute) to the Lower House of Parliament on 6 November 1998. In this note the minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead.", "She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions as to the viability and desirability of the project. On the contrary, developments had been such as to endorse these. 3. Revision proceedings before the Administrative Jurisdiction Division 93. On 13 April 1999 the Stichting Duurzame Mobiliteit (Durable Mobility Foundation) – one of the appellants against the routing decision but not one of the applicants in the present case – lodged a request for revision (herziening) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division.", "This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised Outline Planning Decision – Part 3A or had failed to consider this information. 94. In a decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its decisions. It found that the information in question was not of such a nature as to justify reopening the proceedings. 4.", "The report of the Chamber of Audit 95. From August 1999 until February 2000 the Chamber of Audit (Algemene Rekenkamer) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title “Beleidsinformatie Betuweroute” (Betuweroute Policy Information). 96. The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects.", "The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process. Developments subsequent to the reconsideration of 1995 were taken into account. 97. The Chamber of Audit found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the outline planning decision was based had not been sought.", "98. Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained, inter alia, as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example, Belgium and France) of the liberalisation of rail transport.", "Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being envisaged in a policy proposal of the European Commission. 99. Alternatives to the Betuweroute had not been sufficiently explored. The Chamber of Audit criticised the way in which the use of the existing railway infrastructure in the Netherlands and waterborne inland and coastal transport had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking.", "Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into. 100. The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and groundwater pollution attending alternative choices.", "101. A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note – see paragraph 92 above). However, the information available at those times and the way in which it had been used was open to criticism. 102. The draft of the report was transmitted in its entirety to the government.", "The Minister for Transport and Communications, in a reaction submitted also on behalf of the Minister for Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested. The conclusions of the Chamber of Audit were accepted for future reference. 103. Parts of the draft report were transmitted to the NS Railway Infrastructure Division and to Railned, the Netherlands government entity which operated the railway system. The Railway Infrastructure Division disagreed with certain findings of the Chamber of Audit with regard to environmental impact estimates.", "Railned called into question some of the findings of the Chamber of Audit with regard to the predicted increase in the volume of rail transport. 104. The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, 27 195, nos. 1‑2). II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Outline planning decisions 105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a(1)). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a(2)).", "The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a(5)). 106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a(3)). The advice of the Planning Advisory Board had to be sought (section 2a(4)). 107.", "The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a(6)). 108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a(7)).", "109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a(8)). If approved by the Upper House, the outline planning decision came into force (section 2a(7)). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a(9)).", "110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it (that is, for the purposes of the present case, Outline Planning Decision – Part 3A). 111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39). B.", "The Transport Infrastructure Planning Act 112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11(1), 12(1) and (2), and section 13). 113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15(1)-(3)).", "The routing decision is transmitted to Parliament with an explanatory statement (section 16(1)). Non-binding time-limits are set for the various stages of the procedure. 114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15(4)). 115.", "Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local-government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23(1)). 116.", "The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24(1)-(3)). 117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24(4)). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24(5)). C. Historical overview of the Council of State and its Divisions 118.", "The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent (landvoogdes) of the Low Countries to rule on his behalf. 119. Following the Low Countries’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder (Stadhouder), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General (Staten-Generaal). 120.", "The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary (Raadpensionaris), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813.", "According to the 1815 Netherlands Constitution (Grondwet), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters. 121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown (Kroonberoep) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice.", "For the exercise of this function, the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) was created. 122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration (Wet administrative rechtspraak overheidsbeschikkingen – “the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State). 123.", "In order to give effect to the Court’s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals (Tijdelijke Wet Kroongeschillen) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act.", "124. On 1 January 1994 the General Administrative Law Act (Algemene Wet Bestuursrecht), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak). D. General features and functions of the Council of State 1.", "Membership of the Council of State 125. The Council of State is presided over by the monarch and consists of a vice-president and up to 28 ordinary councillors (Staatsraden) (section 1 of the Council of State Act (Wet op de Raad van State)) and 55 extraordinary councillors (Staatsraden in buitengewone dienst) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors. 126. All councillors are appointed by royal decree (Koninklijk Besluit) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice.", "Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree. 127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State (Volle Raad), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament (Staten-Generaal).", "However, membership of a political party is not a formal or material criterion. 128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience.", "129. Section 7(1) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice-president of the Council of State and with being an ordinary councillor. These categories are extended in section 7(2) of this Act with regard to the extraordinary councillors. This provision reads: “The vice-president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.” 130. Pursuant to section 7(3), the vice-president renders public any other positions held by members of the Council of State.", "This information is published in the Netherlands Government Gazette and posted on the Council of State’s official website. 2. Advisory function of the Council of State concerning draft legislation 131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State (section 15 of the Council of State Act). 132.", "In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a). 133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion.", "This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption. 134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda.", "It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection. 135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors.", "3. Judicial function of the Administrative Jurisdiction Division 136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act. 137.", "The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice-president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life. 138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers.", "The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge. 139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings (that is without an oral hearing), any objection (verzet) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality.", "140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative. E. Combination of the advisory and judicial functions 141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State.", "F. Effect given to Procola v. Luxembourg (judgment of 28 September 1995) 142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3). 143.", "The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government. 144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice’s letter of 12 February 1998, these adaptations were of such a nature that so-called “Procola risks” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000-01, 27 400 II, no. 3).", "145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows: “Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no.", "3), amounts to the following: If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.” G. Challenge of members of the Administrative Jurisdiction Division 146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act). 147.", "The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act). 148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State’s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State.", "149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later case‑law, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no.", "E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28). 150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72).", "151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified. 152. In an appeal in cassation lodged with the Supreme Court (Hoge Raad) against a judgment of 29 March 1999 of the Arnhem Regional Court (Arrondissementsrechtbank) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary.", "In this connection, referring to the Court’s judgment in Procola (cited above), he argued that the Council of State’s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts. 153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant’s point concerning the impartiality of the Council of State, the Supreme Court held as follows: “3.2.", "[The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation: ... (b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention; ... 3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act. 3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.” THE LAW I. ADMISSIBILITY OF THE APPLICATIONS 154.", "The Government submitted that, with the exception of Mr and Mrs Raymakers, the applicants had not challenged the Administrative Jurisdiction Division or appealed to the civil courts on the ground that the administrative proceedings at issue did not offer sufficient guarantees of a fair procedure. According to the Government, both remedies were effective and capable of redressing the alleged violation of the Convention. The Government argued that none of the applicants, apart from Mr and Mrs Raymakers, had therefore exhausted domestic remedies as required by Article 35 § 1 of the Convention. 155. The applicants submitted that, although they had misgivings about the impartiality of the Administrative Jurisdiction Division, which some of them did in fact express in their appeal submissions, they had not lodged a formal challenge like Mr and Mrs Raymakers, fearing that this might have adverse consequences.", "They further pointed out that there were no substantial differences between the appeal lodged by Mr and Mrs Raymakers and those lodged by the other applicants. As to the remedy before the civil courts referred to by the Government, the applicants indicated that, according to the case-law of the civil courts as illustrated by the Supreme Court’s judgment of 16 February 2000 (see paragraph 153 above), the Administrative Jurisdiction Division is regarded as complying with the requirements of impartiality under Article 6 § 1 of the Convention. 156. The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, the Court’s judgment of 28 July 1999 in Selmouni v. France ([GC], no. 25803/94, §§ 74-77, ECHR 1999-V).", "The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case‑law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. 157. The Court can agree with the Government that, where it is alleged that a tribunal does not meet the requirements of independence or impartiality under Article 6 § 1 of the Convention, a challenge can be regarded as an effective remedy under Netherlands law for the purposes of Article 35 § 1.", "158. In the present case, however, the challenge of Mr and Mrs Raymakers – based on the same grounds as now submitted by all applicants to the Court – was dismissed. The Court fails to see that a further challenge by the other applicants, who were parties in the same set of proceedings as Mr and Mrs Raymakers, could have resulted in a different decision. The Court therefore accepts that, in the particular circumstances of the present case, the other applicants were not required to avail themselves of that remedy because it would have been bound to fail. 159.", "As regards the civil remedy advanced by the Government, it is true that the Court has previously held this remedy to be an effective one where an administrative appeal procedure is considered to offer insufficient guarantees as to a fair procedure (see Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, pp. 21-22, §§ 50-57). However, in that case the applicant’s administrative appeal had been heard by the Crown (see paragraphs 121 and 123 above) after the Court had concluded in Benthem v. the Netherlands (judgment of 23 October 1985, Series A no. 97) that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention.", "160. In their brief remarks about the remedy before the civil courts, the Government have not cited any domestic case-law in which a civil court agreed to hear an administrative appeal on the ground that, in view of the Court’s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326), the Administrative Jurisdiction Division afforded insufficient guarantees as to independence and impartiality. The Supreme Court’s case-law referred to by the applicants in fact indicates that this argument was rejected by the Supreme Court. The Court considers that the applicants have sufficiently established that in the present case this remedy too could not be regarded as offering any reasonable prospect of success.", "161. In these circumstances, the applications cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. 162. The Court considers that the applicants’ complaint that, from an objective point of view, the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established.", "The remaining part of the applications is therefore declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 11 above), the Court will immediately consider the merits of the applicants’ complaint. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 163. The applicants complained that the Administrative Jurisdiction Division of the Council of State was not independent and impartial, in that the Council of State exercises both advisory and judicial functions.", "They alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. Applicability of Article 6 164. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties and the Court sees no reason not to find that the proceedings at issue fall within the scope of this provision. B. Compliance with Article 6 1. Submissions before the Court (a) The applicants 165.", "The applicants submitted that, in the light of the Court’s judgments in Procola (cited above) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II), the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. In Procola, the Court indicated that, by reason of the combination of different functions within the Luxembourg Conseil d’Etat, this “institution’s structural impartiality” could be put in doubt. The applicants further submitted that the perception of appellants had to be regarded as decisive where it concerned a tribunal’s objective impartiality. Any doubts by appellants – based on reasonable and objectively justified grounds – as to the impartiality of a tribunal had to be dispelled.", "166. The applicants considered that in this respect no distinction could be made between, on the one hand, a simultaneous exercise of different functions by one person and, on the other, an institutionalised simultaneous exercise of different structural tasks. To draw such a distinction would, from an appellant’s perspective, be artificial. The practical implementation of a norm based on such a distinction was likely to be inadequate and to offer an appellant insufficient guarantees and opportunities for control. 167.", "It would follow that, in appeals to the Administrative Jurisdiction Division, an investigation would have to be carried out in each case as to which statutory provisions were at issue when the Council of State advised on the relevant provisions, which councillors were then members of the Plenary Council of State, and what the content of the advice was. Apart from the risk of mistakes in such investigations, it was also incumbent on an appellant – who under administrative law was considered entitled to litigate without professional legal assistance – to verify whether such a possible combination of tasks existed. Appellants were often unable themselves to obtain a timely answer on the question how the Plenary Council of State was composed when an advice was given. Furthermore, in most cases appellants only became aware of the definite composition of the bench of the Administrative Jurisdiction Division shortly before the hearing of their case. 168.", "The applicants further submitted that the Council of State, in its advisory capacity, could not be compared to an independent and impartial judicial authority, in that it was a politically composed body having close ties with the government and the legislator. In this respect the applicants referred to section 22 of the Council of State Act, providing for a general possibility of consultation between the Council of State and the minister concerned, and submitted that no similar provision could be found in regulations on the status of the judiciary. 169. When considering the conditions for appointment as ordinary councillor – which are considerably less strict than for judges of the ordinary courts –, the appointment procedure itself and the role of the Council of State in the Netherlands legal order, it was, from the perspective of appellants, obvious that the Council of State had to be regarded as a part of the legislature and the executive. It was also clear that, in the exercise of its advisory functions, the Council of State dealt not only with questions of lawfulness but also with political and policy considerations.", "170. As no distinction was made between the persons involved in the exercise of the Council of State’s advisory functions and those involved in the exercise of its judicial functions, the applicants considered that institutionalised simultaneous exercise of both the advisory and the judicial functions of the Council of State was incompatible with the requirement of objective impartiality under Article 6 § 1 of the Convention. 171. The applicants further submitted that the advisory opinions given by the Council of State on the Transport Infrastructure Planning Bill did in fact serve as a prelude to future adjudication of appeals lodged against the Betuweroute routing decision. In its advisory opinion it dealt intensively with the issues going to problems of the legislation applicable to the decision‑making process in relation to the planning of the Betuweroute railway.", "In this context the Council of State suggested the enactment of a special regulation for large-scale projects of (supra-)national importance such as the – expressly mentioned – Betuweroute railway, in order to allow a fast and efficient construction thereof, bypassing the normal legal-protection proceedings and the powers of local and regional public authorities. To this end the Council of State even suggested that, by way of transitory arrangements, the Transport Infrastructure Planning Act be rendered applicable to the decision-making process already underway in respect of the planning of the Betuweroute railway. This considerably restricted the opportunities for, as well as the scope of, judicial control, which was limited to some main aspects of the decision-making process. In its second advice the Council of State further advised that the envisaged routing of the Betuweroute railway be mentioned expressly in the Transport Infrastructure Planning Act. 172.", "From the perspective of appellants it could not therefore be maintained that the Administrative Jurisdiction Division of the Council of State was an independent and impartial tribunal. From their perspective it appeared that both the political and judicial decisions on the construction of the railway had eventually been taken by the same kind of institution. 173. In this context the applicants further referred to the fact that the bench of the Administrative Jurisdiction Division that heard their appeals had been composed of three ordinary councillors. In the applicants’ opinion, this gave rise to an objectively justified impression that these members considered themselves bound by the advisory opinions given previously by the Council of State on the Transport Infrastructure Planning Bill in which, in addition, the President of the bench concerned had participated.", "174. This impression was confirmed by the reserved manner in which the Administrative Jurisdiction Division had examined the challenged decisions on the construction of the Betuweroute railway. It had relied upon favourable expert opinions, without giving adequate reasons for attaching less value to opposing expert opinions submitted by the appellants. It could be concluded from this that the Council of State, in the exercise of its judicial functions in the instant case, had allowed itself to be too influenced by policy considerations, that is the desirability of a speedy construction of the Betuweroute railway, a point of view which had been subscribed to in the Council of State’s advisory opinions. 175.", "The applicants further argued that the policy adopted by the Council of State for preventing so-called “Procola risks” was inadequate and ineffective, in that this policy was formulated with insufficient precision and, further, had not been laid down in a regulation accessible to the general public. Furthermore, the Council of State did not indicate in concrete cases whether this policy had in fact been applied. At the material time the applicants could only deduce the existence of this policy from a memorandum sent by the Minister for Justice and the Minister of the Interior to the Lower House, after the decision on the appeals against the outline planning decision had already been taken. It was further only in the Annual Report 2000 of the Council of State, which was published in 2001, that an attempt was made to describe the “Procola policy” applied by the Council of State. The applicants were of the opinion that, given the importance of the impartiality of the judiciary in a State respecting the rule of law, it could not be considered sufficient to refer merely to communications addressed to Parliament or to a chapter in an annual report.", "These kinds of guarantees for judicial impartiality should be laid down in a statutory regulation which was accessible to the general public. 176. The applicants submitted lastly that it was also incompatible with Article 6 § 1 of the Convention that the Council of State, according to the description of its Procola policy in its Annual Report 2000, only examined whether there was a Procola risk when an appellant “had advanced doubts as to the independence and impartiality of the bench dealing with the appeal”. It could be inferred that the Council of State only examined this issue seriously after having been requested to do so. Given the Contracting States’ positive obligation under Article 6 § 1 of the Convention to organise their judicial systems in such a way that their courts were capable of meeting each of its requirements, including that of judicial impartiality, such a system could not be seen otherwise than as being incompatible with this provision.", "(b) The Government 177. According to the Government, the decision to construct the Betuweroute railway was taken after obtaining the consent of Parliament and after considering all the relevant interests. Construction projects like the one at issue in the present case were regulated by the Transport Infrastructure Planning Act and involved two stages, namely the taking of an outline planning decision containing the broad principles and the subsequent taking of a routing decision. The Government stressed that the Council of State had no advisory function whatsoever in the process leading to an outline planning decision or a routing decision and that an appeal against both types of decision lay to the Administrative Jurisdiction Division. 178.", "In administrative appeal proceedings the Administrative Jurisdiction Division examined solely the lawfulness of an administrative decision. The policy on which a decision was based and policy considerations that had played a role in the decision were not examined on their merits. Given the division of powers between the executive and the judiciary, there was no room for a more comprehensive review than an examination of the lawfulness of a challenged decision. Where the Administrative Jurisdiction Division concluded that a decision was unlawful, it quashed the decision and referred the case back to the competent administrative authority for a new decision with due regard to the considerations stated by the Administrative Jurisdiction Division. It did not give a fresh decision of its own.", "179. The applicants’ complaint was based solely on the fact that the bench of the Administrative Jurisdiction Division that dealt with their appeals against the routing decision had been composed of three ordinary councillors who were also members of the Plenary Council of State, which had issued an advisory opinion on the Transport Infrastructure Planning Bill. In the Government’s view, by adopting this position, the applicants had misconstrued the link between the Transport Infrastructure Planning Act – and hence the Council of State’s advice on it – and the determination of their appeals against the routing decision. 180. The proceedings in respect of the applicants’ appeals had not involved any matter on which the Council of State had given an advisory opinion and they could not, therefore, have any grounds for fearing that the three judges had felt bound by an opinion previously given, since there had simply been no such opinion in respect of the routing decision.", "181. The challenge lodged by Mr and Mrs Raymakers had been determined by three extraordinary councillors, who had never been involved in the exercise of the Council of State’s advisory functions. Two of the three ordinary councillors who determined the applicants’ appeals against the routing decision had not yet joined the Council of State when this body exercised its advisory functions in respect of the Transport Infrastructure Planning Bill, and the advice given by the Council of State on this bill had not discussed or even touched upon the questions which the Administrative Jurisdiction Division had been called upon to determine in the applicants’ appeals against the routing decision. This was supported by the applicants’ failure to identify elements of the Council of State’s advisory opinion on the Transport Infrastructure Planning Bill which would cast doubt on the Administrative Jurisdiction Division’s impartiality in hearing the applicants’ appeals. The Government therefore failed to see in what manner any member of the bench of the Administrative Jurisdiction Division that dealt with the applicants’ case could have felt bound by a previous position taken by the Council of State.", "182. Although the ordinary councillors sat in the Plenary Council of State as well as the Administrative Jurisdiction Division, the Government considered that there was no general incompatibility between delivering advisory opinions to the executive and exercising a judicial function. It was only in very rare cases that an advisory opinion on draft legislation and a specific ruling by the Administrative Jurisdiction Division in which the finalised legislation was applied related to “the same case” or amounted to “the same decision”. 183. According to the Government, it was clear from the Court’s judgments in Procola and McGonnell (both cited above) that the key question was whether and how the same judge was directly involved in drafting regulations on which he or she was subsequently called upon to rule in a judicial capacity.", "The Government were therefore of the opinion that the mere fact that advisory and judicial functions were combined within a single body did not in itself vitiate the independence and impartiality of that body. The Government considered that the measures taken by the Administrative Jurisdiction Division in response to Procola constituted sufficient safeguards for securing its objective impartiality. (c) Third-party interventions (i) The Italian Government 184. The Italian Government submitted that for the purposes of assessing judicial impartiality, a distinction had to be drawn between an abstract assessment of a provision, such as an advisory opinion, and an evaluation of the application of a provision in a specific case. In their view, a judgment, evaluation or examination of a law did not prevent further judgments or evaluations of that same law.", "It was incompatible with the requirements of impartiality for a judge to assess specific facts twice, but not for an abstract provision to be assessed by the same judge in different individual cases. (ii) The French Government 185. The French Government drew attention to the fact that the French legislation on the operation of the French Conseil d’Etat and the status of its members were based on the principle of a simultaneous exercise of advisory and judicial functions by the same body. The French Conseil d’Etat was divided into five Administrative Divisions (sections administratives): interior, finance, public works, social, and report and research, which were responsible for giving advisory opinions to the government, and one Judicial Division (section du contentieux) responsible for hearing administrative disputes. 186.", "The primary function of the Administrative Divisions was to ensure the lawfulness of legislation submitted to them. Their legal advice to the government aimed to prevent illegalities which judicial authorities would only be able to remedy later, once the administrative decision had been made and sometimes already applied. The existence of a body able to analyse an administrative decision or rule and provide legal advice before it was enacted, and hence improve its quality, also guaranteed greater stability of the rule of law. If administrative decisions were better protected against legal errors, they were less likely to be set aside by the judicial authorities and therefore more stable. 187.", "The inherent advantage of a simultaneous exercise of both advisory and judicial functions was that it was easier for the members of Administrative Divisions who were also members of the Judicial Division to identify illegalities, which meant that the quality of the advisory opinions was guaranteed. It was impossible to separate the judicial function of the Conseil d’Etat from its advisory responsibilities. The adviser to the government relied on case-law and the judge took into account the adviser’s opinion. This resulted in the best possible guarantee of legal certainty. 188.", "Nevertheless, the simultaneous assignment of Conseil d’Etat members to an Administrative Division and the benches of the Judicial Division was not without limits, in that the requirement of impartiality took precedence over this principle of dual assignment. The Conseil d’Etat observed the rule that any judge who had either assisted, in the course of duties performed outside the Conseil d’Etat, in drafting an administrative decision which was then challenged before the Judicial Division, or had even dealt with the decision in the past as a reporting judge (rapporteur) to an Administrative Division, had to withdraw from the case. 189. The French Government considered that the fact that the same point of law was submitted successively to the Conseil d’Etat in its advisory capacity and its judicial capacity did not as such constitute a ground, given its independence in both capacities, for an objective doubt in the mind of an appellant that could undermine the impartiality of the Judicial Division. The impartiality of a body where advisory and judicial responsibilities coexisted did not pose a problem where an advisory opinion concerned merely a point of law.", "Where it concerned a question of fact, the assessment of the question whether an appellant could have objectively justified fears of bias depended on the merits of each case. 2. The Court’s assessment 190. As is well established in the Court’s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. 191.", "As to the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance.", "What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 192. The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). 193.", "Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position of the Netherlands Council of State. The Court is faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell, cited above, § 51).", "194. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48). 195.", "Having regard to the manner and conditions of appointment of the Netherlands Council of State’s members and their terms of office, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, the Court has found nothing in the applicant’s submissions that could substantiate their concerns as to the independence of the Council of State and its members, the more so as this particular issue was not addressed in the challenge proceedings brought by Mr and Mrs Raymakers. Neither is there any indication in the present case that any member of the bench of the Administrative Jurisdiction Division was subjectively prejudiced or biased when hearing the applicants’ appeals against the routing decision. In particular, it has not been alleged by the applicants that the participation of the President of the bench in the advisory opinion on the Transport Infrastructure Planning Bill gave rise to actual bias on his part. 196. Nevertheless, as illustrated in Procola(cited above), the consecutive exercise of advisory and judicial functions within one body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from the objective viewpoint.", "In this context the Court reiterates that it is crucial for tribunals to inspire trust and confidence (see paragraph 191 above). 197. The Government have brought to the Court’s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands (see paragraphs 142-45 above). According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench will only be scrutinised if doubts are expressed by a party; the criterion then applied is that if the appeal goes to a matter explicitly addressed in a previous advisory opinion, the composition will be changed so as to exclude any judges who participated in that opinion. 198.", "The Court is not as confident as the government was in its statement during the parliamentary budget discussions in 2000 that these arrangements are such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division constitutes an “impartial tribunal” for the purposes of Article 6 § 1 of the Convention. It is not, however, the task of the Court to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of the “objective” impartiality of a tribunal under Article 6 § 1 that the Council of State’s institutional structure had allowed certain of its ordinary councillors to exercise both advisory and judicial functions. 199. In the present case the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra-regional planning of new major transport infrastructure.", "The applicants’ appeals, however, were directed against the routing decision, which is a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. Earlier appeals against the outline planning decision are not at issue as they were based on a different legal framework. 200. The Court is of the opinion that, unlike the situation examined by it in Procola and McGonnell, both cited above, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”. 201.", "Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references cannot reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. The passages containing the references to the Betuweroute railway in the Council of State’s advice were concerned with removing perceived ambiguities in sections 24b and 24g of the Transport Infrastructure Planning Bill. These provisions were intended to apply to two major construction projects already under consideration at the relevant time, of which the Betuweroute railway was one. The Court cannot agree with the applicants that, by suggesting to the government to indicate in the bill the names of the places where the Betuweroute railway was to start and end, the Council of State determined, expressed any views on or in any way prejudged the exact routing of that railway. 202.", "In these circumstances, the Court is of the opinion that the applicants’ fears as to a lack of independence and impartiality of the Administrative Jurisdiction Division, due to the composition of the bench that heard their appeals, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT 1. Declares unanimously the remainder of each application admissible; 2. Holds by twelve votes to five that there has been no violation of Article 6 § 1 of the Convention; Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 6 May 2003.", "Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Ress; (b) dissenting opinion of Mrs Thomassen joined by Mr Zagrebelsky; (c) dissenting opinion of Mrs Tsatsa-Nikolovska joined by Mrs Strážnická and Mr Ugrekhelidze. L.W.P.J.M. CONCURRING OPINION OF JUDGE RESS I agree with the outcome of this case but in my view the reasoning of the Court needs some clarification. It is true, as the Court has stressed in paragraph 198 of the judgment, that the issue before it is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of objective impartiality of a tribunal that the Council of State’s institutional structure allowed certain of its ordinary councillors to exercise both advisory and judicial functions. But more precisely the issue is what was the subject matter of the relevant proceedings.", "In this connection, the Court refers in paragraph 200 to the fact that the advisory opinion given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decisions cannot be regarded as involving the same case or the same decision. If this is the criterion then the question has to be answered: when are decisions “the same” or when is a case “the same”? In my view that can only be so where their subject matter is identical – that is, to put it negatively, not different. The subject matter of different sets of proceedings is the same if the facts of the case are (more or less) the same and if the legal questions addressed in the proceedings on the basis of these facts are identical. One could also, as a third element, refer to the parties to the proceedings and ask the question whether they are different or the same.", "The decisive question is not whether an ordinary councillor has exercised both advisory and judicial functions, but whether the decisions taken by him or her, irrespective of whether in an advisory or a judicial capacity, relate to the same subject matter. In that connection, it is necessary to note, as the Court did in paragraph 201 of the judgment, that the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill relates only to the consultation of local and regional authorities and the prospective exploiter of the railway before a draft routing decision is drawn up. The advice concerns the procedure leading to the outline planning decision which is to form the basis of, and be transformed into, a draft routing decision. It is an advisory opinion which concerns the general structure of this procedure, but not the precise routing decision, which is taken afterwards by the Minister for Transport and Communications together with the Minister for Housing, Planning and Environmental Management (the final routing decision) and which may affect the interests and property rights of individuals. There is a clear relation between the Transport Infrastructure Planning Act as a general rule and the concrete routing decision.", "The subject matter of these two sets of proceedings is as different as the distinction between general and individual or abstract and concrete normally is. The advice on the Transport Infrastructure Planning Bill concerns the procedures laid down therein and does not relate to the precise places which the Betuweroute railway will cross. These places of the routing arrangements are not determined, not even by the proposal of the Council of State to the government to indicate the starting and ending points. Within the Transport Infrastructure Planning Bill quite a number of different routing decisions are possible. As everybody knows, the level of abstraction may be very different in different matters of legislation; it may become so near to concrete and the subject matter may become so narrowed that a formal distinction would have to be considered rather artificial in the light of appearances.", "Appearances do not just stop at these formal classifications. Therefore a closer look at the different subject matter of the decisions will always be necessary. Here, since the subject matter of the decisions was clearly different, there is no appearance that those ordinary councillors who had given advice had already addressed, or made up their minds about, all the possible routing decisions. The facts of these two sets of proceedings were different, since the exact routing points were not known when the advice on the Transport Infrastructure Planning Bill was given. Secondly, the legal questions addressed were different because the advice only dealt with questions of procedure and participation and not the question of the necessity of the actual routing in the light of the applicants’ rights and interests, unlike the decision on their appeals against the routing decision.", "And, thirdly, the parties were different, as the advice was given in proceedings between State organs whereas the examination of the legality of the actual routing involved private individuals, such as the applicants, with their specific rights, on the one hand and the ministers who had taken the Betuweroute Routing Decision on the other. DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE ZAGREBELSKY In Procola v. Luxembourg (judgment of 28 September 1995, Series A no. 326, p. 16, § 45) the Court stated: “The Court notes that four members of the Conseil d’Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg’s Conseil d’Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution’s structural impartiality.” The present case raises the question of the structural independence and impartiality of the Netherlands Council of State, whose ordinary councillors, as in the Conseil d’Etat of Luxembourg, combine both judicial and advisory functions (see paragraphs 125-41 of the judgment). The Constitution of the Netherlands requires the government, before submitting any bill to Parliament for adoption, to seek the advisory opinion of the Council of State.", "This advice is required to address different aspects of the proposed law, bearing not merely on technical legislative questions but also on the effectiveness and feasibility of the intended measures, as well as on the quality of the legal protection thereby provided (see paragraph 134 of the judgment). Advisory opinions are adopted by the Plenary Council of State, which is composed of the ordinary councillors. The ordinary councillors are at the same time members of the Administrative Jurisdiction Division of the Council of State and, as such, are entrusted with the function of adjudicating administrative disputes, including applications for interim relief, where the law so provides. The present applicants lodged appeals against the Betuweroute Routing Decision (Tracébesluit) adopted by the government, the effect of which was to route the planned railway close to their homes or businesses. Their appeals were determined by a Chamber of the Administrative Jurisdiction Division of the Council of State, whose judges combined both advisory and judicial functions and whose president had been a member of the Plenary Council which had advised the government on the bill which became the Transport Infrastructure Planning Act (Tracéwet).", "The Act was designed to introduce a new legislative framework for large-scale transport projects of major national importance. It did so by, inter alia, simplifying procedures for securing the cooperation of provincial, regional and local authorities whose territories might be affected by the project and by restricting to a single appeal the legal remedies available to those objecting to decisions of national and local authorities. The Act would be directly applicable to the already ongoing decision-making process concerning the Betuweroute. The central question raised is whether, in the circumstances of the present case, the combining of the advisory and judicial functions within the Council of State was capable of casting doubt on the institution’s structural impartiality sufficiently to vitiate the impartiality of the Chamber of the Administrative Jurisdiction Division which determined the applicants’ appeals. As the Court correctly observes in its judgment (paragraph 196) and as is established by Procola, the consecutive exercise of advisory and judicial functions within a body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from an objective point of view.", "In deciding whether in any given case there exists a legitimate ground to fear that the requirements of independence and impartiality are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be objectively justified, that is, whether there are ascertainable facts which may raise doubts as to the impartiality of the tribunal in question. However, in making this assessment, the Court has repeatedly emphasised that appearances may be of a certain importance, what is at stake being the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings. The question of appearances assumes particular importance, in my view, in a context where judicial functions and the structural function of advising the government are combined within the same body and where the structure of the body is such that its members can successively exercise both functions. While it is true that neither Article 6 nor any other provision of the Convention has been held by the Court to require States to comply with any theoretical constitutional concept of separation of powers, it is also true, as is noted in the judgment, that the notion of the separation of powers between the political organs of government and the judiciary has assumed a growing importance in the Court’s case-law, most recently in Stafford v. the United Kingdom (cited at paragraph 193 of the present judgment).", "Where, as here, there exists no clear separation of functions within the body concerned, particularly strict scrutiny of the objective impartiality of the tribunal is called for. This is all the more the case where, as in the Netherlands system, an appellant is not informed in advance of the composition of the Chamber of the Administrative Jurisdiction Division which is to determine his appeal or of the nature of the participation, if any, of its members in the advisory work of the Council of State. The majority of the Court recognise in the judgment the potential problems posed in Convention terms by the structural arrangements within the Council of State. Indeed, the Court goes as far as to state that it does not share the confidence of the Government that even the changes made in the arrangements within the Council of State with a view to giving effect to Procola in the Netherlands would be such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division would satisfy the requirements of impartiality for the purposes of Article 6 of the Convention. The majority of the Court nevertheless find that, in the particular circumstances of the present case, the applicants’ doubts were not justified.", "In doing so, they distinguish the present case from both Procola (cited above) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II) by holding that the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”. It appears to be the view of the majority that this would only have been the case if the Council of State in its advisory capacity could reasonably have been interpreted as expressing views, or making preliminary determinations, on issues subsequently decided by the responsible ministers in the relevant routing decision (see paragraph 201 of the judgment). I cannot agree with this analysis, which appears to me to place too narrow an interpretation on the terms “same case” or “same decision”. The terms themselves were first used in cases in which individual judges had been involved in the same legal proceedings at two different stages and in two different capacities (see, for example, Piersack v. Belgium, judgment of 1 October 1982, Series A no.", "53, and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154). While, in such a context, the test of what constitutes the “same case” is straightforward, its application in circumstances such as the present, involving the structural independence and impartiality of the judicial members of the Council of State, is less clear. Having regard to the importance of the confidence which courts must inspire in the public, I consider that in such a case a broad rather than a strict legal approach should be taken to the question whether the proceedings on the appeals against the routing decision could reasonably be regarded as involving “the same case” as that on which the members of the Council of State had already advised. As is clear from the summary of the facts, the construction of the Betuweroute was a highly controversial project which had been the subject of extensive debate at all stages.", "While the Council of State did not give any advice as to the precise routing of the railway, it indisputably played a role in the realisation of the Betuweroute project, to which explicit reference was made in the two advisory opinions given on the Transport Infrastructure Planning Bill. While the issues on which the Council of State, in its capacity as advisory body to the government, was required to advise and those which, in its judicial capacity, it had to decide were clearly not identical and while the links between the two may be said to be more remote than those which were examined by the Court in Procola and McGonnell, I consider that those links were sufficiently strong to regard the proceedings before the Administrative Jurisdiction Division as relating to the same case and, thus, to give rise to doubts which were objectively justified. For these reasons, I consider that there has been a violation of the applicants’ rights under Article 6 of the Convention in the present case. DISSENTING OPINION OF JUDGE TSATSA-NIKOLOVSKA JOINED BY JUDGES STRÁŽNICKÁ AND UGREKHELIDZE 1. I regret that I am unable to share the opinion of the majority that there has been no violation of Article 6 § 1 of the Convention in this case.", "2. The requirement under Article 6 § 1 that tribunals must be independent and impartial is directly linked to the concept of separation of powers, which notion lies at the very heart of this case. Admittedly this principle has never been recognised explicitly as forming part of Article 6, and indeed Article 6 does not require Contracting States to adopt or endorse any particular constitutional theory (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000-II). It is nonetheless inseparable from the notion of judicial independence.", "This can be illustrated with examples from the Court’s case-law, such as McGonnell (cited above, § 55), Stran Greek Refineries and Stratis Andreadis v. Greece (judgment of 9 December 1994, Series A no. 301-B, p. 82, § 49), as regards independence from the legislature, and T. v. the United Kingdom ([GC], no. 24724/94, § 113, 16 December 1999), as regards independence from the executive. 3. The fact that advisory and judicial tasks are exercised within one State organ, such as the Netherlands Council of State, is in my opinion not necessarily incompatible with Article 6, in particular where, as in the Netherlands Council of State, the exercise of judicial tasks is entrusted to a separate division.", "However, where such an organisational structure nevertheless allows these two functions to be exercised by the same individuals in respect of one and the same law, it is conceivable and, in my opinion, quite understandable that parties to judicial proceedings before the Council of State should have serious misgivings as to the impartiality, from an objective perspective, of a bench composed of such persons. 4. As reiterated by the Court in the present case, “appearances” are in this respect of relevance as “what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings” (see paragraph 191 of the judgment). This in my view applies all the more where, as in the present case, new legislation entails restrictions on the scope of judicial control by reducing the number of tribunals competent to hear appeals in a particular case to only one. 5.", "This does not of course imply that fears perceived by a party must be accepted as decisive. In this respect, it is standing case-law that the opinion of a party to proceedings is important but not decisive. The crucial test remains whether a party’s doubts as to the impartiality can be regarded as objectively justified (see, as a recent authority, Werner v. Poland, no. 26760/95, § 39, 15 November 2001, with further references). 6.", "Since the complaint that the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal for the purposes of Article 6 § 1 is directly based on the organisational structure of the Netherlands Council of State allowing dual assignments, I find it regrettable that the Court has only examined this complaint in light of the specific circumstances of the applicants’ case without clearly making a finding as to the question whether, as a matter of principle, such a structure is compatible with the requirements for tribunals under Article 6. 7. In my opinion, the exercise of both advisory and judicial functions by the same persons is, as a matter of principle, incompatible with the requirements of Article 6 regardless of the question how remote or close the connection is between these functions. A strict and visible separation between the legislative and executive authorities on the one hand and the judicial authorities of the State on the other is indispensable for securing the independence and impartiality of judges and thus the confidence of the general public in its judicial system. Compromise in this area cannot but undermine this confidence.", "8. The facts in the present case illustrate this. It is clear from the facts that the plans for the construction of the Betuweroute railway were contested as from the start and that the executive sought a way to simplify and shorten the planning procedures for this and other major transport infrastructure projects, which eventually resulted in the Transport Infrastructure Planning Act. In view of the explicit references to the Betuweroute railway in the two advisory opinions given by the ordinary councillors of the Netherlands Council of State on the Transport Infrastructure Planning Bill, it is obvious that the impact of this bill on the realisation of this project was taken into consideration by the ordinary councillors when they exercised the advisory functions of the Council of State. 9.", "When considering this element in conjunction with the circles from which ordinary councillors are mainly selected (see paragraph 128 of the judgment), I quite understand that the applicants in the present case, whose appeals were determined by a bench of the Administrative Jurisdiction Division entirely composed of ordinary councillors, had doubts as to the impartiality of this judicial body and consider that these doubts were objectively justified. Consequently, there has in my opinion been a violation of Article 6 § 1 of the Convention. 10. It would have been far preferable, and quite possible even within the present organisational structure of the Council of State, for the bench that dealt with these appeals to have been composed of extraordinary councillors. Had this been the case, there would have been no room for doubts as, unlike the ordinary councillors, the extraordinary councillors have only one function – namely, the administration of justice.", "An even better possibility to remove all doubts would of course be to incorporate administrative-law proceedings entirely in the regular judicial system by establishing either a separate administrative-law division at the level of the Netherlands Supreme Court or a separate administrative judicial authority as a final appeal body." ]
[ "FIRST SECTION CASE OF KITOV v. BULGARIA (Application no. 37104/97) JUDGMENT STRASBOURG 3 April 2003 FINAL 03/07/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kitov v. Bulgaria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrG. Bonello,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler,MrsE.", "Steiner, judges,and Mr S. Nielsen, Deputy Registrar, Having deliberated in private on 13 March 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37104/97) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Nikolai Kitov (“the applicant”), on 22 January 1997. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs G. Samaras, of the Ministry of Justice.", "3. The applicant alleged, inter alia, that two sets of criminal proceedings against him were not decided within a reasonable time. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.", "11). 5. Following the Fourth Section's partial decision of 9 March 1999 in this case, on 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). The applicant's case was assigned to the newly composed First 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.", "6. By a decision of 17 January 2002 the Court (First Section) declared the application partly admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1956 and lives in Samokov.", "Between 1991 and 1994 he was the mayor of Samokov. 1. The 1993 criminal proceedings against the applicant 8. On 27 May 1993 the District Prosecutor's Office (Районна прокуратура) in Samokov opened criminal proceedings against the applicant. It was alleged that the applicant in his capacity as mayor of Samokov had bestowed unlawfully benefits to individuals by granting tenancy orders and authorising construction works (abuse of office contrary to Article 282 §§ 1 and 2 of the Penal Code), that he had made a false certification in an official document (Article 311 § 1 of the Penal Code), and that he had used offensive language in respect of several persons (Articles 146 and 148 § 1(3)(4)).", "9. As a measure to secure the applicant's appearance before the competent authorities, he was required to sign an undertaking that he would not leave Samokov without authorisation. This undertaking apparently remained in force throughout the proceedings. 10. On 16 June 1993 the case was assigned to an investigator.", "On 14 July 1993 the applicant was questioned. On 27 July 1993 the investigator heard one witness. On 11 August 1993 the investigator concluded his work on the case and drew up a report proposing the termination of the proceedings, as the applicant's acts did not constitute criminal offences. 11. On 24 September 1993 the District Prosecutor's Office referred the case back for further investigation.", "On an unspecified date the case was assigned to another investigator. 12. On 18 January 1994 the Regional Prosecutor's Office (Окръжна прокуратура) in Sofia, acting under section 154 § 1 of the Code of Criminal Procedure, ordered the suspension of the applicant's term as the mayor of Samokov as there was a danger that he would obstruct the investigation. Upon the applicant's appeal this decision was confirmed by the Chief Public Prosecutor's Office (Главна прокуратура). On 19 October 1994 the municipal council (общински съвет) removed the applicant from the post of mayor of Samokov.", "The removal was upheld on appeal by the Sofia Regional Court and by the Supreme Court. 13. In the continuing criminal proceedings, on 24 March 1994 the investigator proposed a temporary suspension of the proceedings as an important witness was allegedly in hiding. On 4 April 1994 the case was again referred back for further investigation by decision of the District Prosecutor's Office. 14.", "On 6 September 1994 the investigator reformulated the charges and, in addition, charged the applicant under Articles 172 §§ 1 and 2 and 282 of the Penal Code in respect of allegedly unlawful payments to dismissed municipal employees and his refusal to comply with a judicial order reinstating an employee. 15. On 31 October 1994 the District Prosecutor's Office terminated the proceedings in so far as they concerned the charges about payments to dismissed employees and in respect of some of the incidents where the applicant had allegedly used offensive language. On the same date the prosecutor drew up an indictment in respect of the alleged crimes under Articles 282 §§ 1, 2 and 3 and 311 § 1 of the Penal Code and also as regards the applicant's alleged failure to comply with a judicial order (Article 172 §§ 1 and 2 of the Penal Code) and the remaining incidents where the applicant allegedly employed offensive language (Articles 146 and 148 § 1(3)(4)). 16.", "During the preliminary investigation, in the period May 1993 - October 1994, the investigators examined numerous documents and heard ten witnesses. There is a dispute between the parties as to the number of experts' opinions ordered. According to the applicant they were six or seven, whereas the Government mentioned seventy-eight experts' opinions. 17. The indictment was submitted to the Samokov District Court (Районен съд).", "18. Between 17 January 1995 and 15 May 1996 the District Court held nineteen hearings. The court heard about one hundred witnesses and many experts and admitted voluminous documentary evidence. The hearings were held at regular intervals and most adjournments were considered necessary to allow for the examination of witnesses that had not appeared or the collection of other evidence requested by the applicant or the prosecution. The District Court imposed fines on witnesses who had failed to appear without good cause and sent urgent requests to the police for assistance in respect of witnesses whose whereabouts were unknown.", "19. By judgment of 17 May 1996 the applicant was convicted on some of the charges and was acquitted for the remainder. He was sentenced to one year and three months' imprisonment, suspended. 20. On 29 May 1996 the applicant appealed to the Sofia Regional Court (Окръжен съд).", "The prosecutor also appealed and requested that the judgement of the District Court be quashed and the case referred back to the investigation authorities. The Regional Court held a hearing on 8 July 1996. 21. By judgement of 23 July 1996 the Regional Court upheld the applicant's conviction under Article 311 § 1 and his acquittal under Article 172 §§ 1 and 2 of the Penal Code, quashed the remainder of the District Court's judgement and referred the latter part of the case back to the investigation authorities. 22.", "As a result, in respect of the charges of false certification in an official document under Article 311 § 1 of the Penal Code, the proceedings ended on 28 February 1997, when the Supreme Court of Cassation (Върховен касационен съд) dismissed the applicant's petition for review (cassation) against the conviction part of the Regional Court's judgment. As regards the alleged offences under Articles 146 and 148 § 1(3)(4) and Article 282 §§ 1 and 2 of the Penal Code, the criminal proceedings continued at the preliminary investigation stage. 23. The Regional Court remitted this part of the case to the investigation stage as it found a number of discrepancies between the initial charges and the indictment, mainly as regards the references to the legal provisions which the applicant had allegedly breached in abuse of his duties as a mayor. The Regional Court considered that as a result the applicant's defence rights had been curbed.", "24. No investigation was carried out between July 1996 and April 1997 since, following the judgment of 23 July 1996, the case file only reached the District Prosecutor's Office in October 1996, but had to be transmitted in November 1996 to the Supreme Court of Cassation in relation to the applicant's petition for review (cassation) of the conviction part of the judgment. After the delivery of that court's judgment on 28 February 1997, the case file reached the competent investigator in April 1997. 25. On each of the dates 7 May, 12 May and 2 June 1997 the investigator heard one witness.", "26. By letters of 8 August, 27 August, 23 September and 29 September 1997 the applicant inquired with the District Prosecutor's Office in Samokov about the course of the proceedings and requested the collection of evidence. 27. On 31 October 1997 the investigator reformulated the charges against the applicant. On 7 November 1997 the applicant was informed thereof and was questioned.", "The applicant had five meetings with the investigator until 25 November 1997. The applicant refused to give explanations. He requested the collection of additional documentary material. 28. On 20 January 1998 the investigator sent requests for documentary material to several institutions.", "29. By letters of 26 February and 21 May 1998 the applicant protested against the delays in the proceedings. 30. On 5, 6 and 7 August 1998 the investigator provided access to the case-file to three persons, the alleged victims. On 10 August 1998 the applicant appeared before the investigator, the material in the case was officially communicated to him and he was given the possibility to submit requests or objections.", "The applicant made a number of requests and remarks. 31. On 21 August 1998 the investigator finalised the case and submitted it to the competent prosecutor proposing indictment. The prosecutor ordered further investigation to which the investigator objected. The ensuing dispute required the interference of the Regional Prosecutor's Office.", "Having examined the matter, on 11 June 1999 it ordered additional investigation. 32. On 1 October 1999 the applicant was questioned by the investigator. On 5 October 1999 the applicant was provided access to all material in the case and invited to submit his final comments on the investigation. Thereafter, the case was transmitted to the competent prosecutor.", "33. By order of 17 November 1999 the District Prosecutor's Office terminated the proceedings in respect of a number of the charges. The applicant appealed stating, inter alia, that the order did not clarify the outstanding charges, so as to enable him to organise his defence. 34. On 17 August 2000 the Regional Prosecutor's Office modified the order of 17 November 1999, accepting that it had been unclear and wrongly reasoned.", "As a result, the charges on three counts of abuse of office under Article 282 of the Penal Code were dropped on the ground that the acts imputed to the applicant did not constitute criminal offences and some other charges were abandoned as unproven. The remaining accusations were modified. 35. As of March 2001 the proceedings were pending at the preliminary investigation stage. 36.", "On an unspecified date the competent prosecutor drew up an indictment on 137 counts of abuse of office. The indictment ran on 35 pages and relied on seven witnesses, reports of nine experts and voluminous documentary material. 37. The indictment was submitted to the District Court which held a first hearing on 21 February 2002. On that date the case was adjourned until 22 April 2002.", "2. The 1995 criminal proceedings against the applicant 38. On 27 March 1995 criminal proceedings were opened against the applicant on suspicion that on 7 July 1992, at the time when he was mayor of Samokov, he had contravened Article 282 § 1 of the Penal Code (abuse of office) by ordering unlawfully the restitution of State property, a plot of land, to a private person, a Mr S. 39. The property in question belonged to Mr S. until 1961 when the State had acquired it for the needs of the local post office. In 1992 Parliament enacted a law providing for the restitution of property nationalised under several pieces of legislation passed in the 1940s and 1950s.", "The plot of Mr S. had been acquired by the State in 1961 under other legislation and thus did not fall within the scope of the 1992 restitution law. Nevertheless, on 7 July 1992 the applicant had granted Mr S.'s request for restitution, citing as legal ground the 1992 restitution law. 40. According to the charges, the procedure for examination of restitution requests by a commission of experts had not been followed. Furthermore, the order had no valid legal grounds and was issued by the applicant with the intention to bestow a benefit on Mr S. 41.", "In the meantime, on an unspecified date in 1994 the post office brought a civil action against Mr S. claiming the property back. Several months later, in 1995, the Regional Governor quashed the 1992 restitution order issued by the applicant and, upon the appeal of Mr S., separate civil proceedings commenced between Mr S. and the Regional Governor. In a third set of civil proceedings Mr S. sought to prove against the post office that the 1961 acquisition had been null and void. The proceedings involving the Regional Governor ended in 1997, and those between the post office and Mr S. in 2000. The 1992 restitution order was eventually quashed and the plot of land returned to the local post office.", "42. In the criminal investigation against the applicant, between 12 April and 31 July 1995 the investigator heard at least fifteen witnesses, questioned the applicant, commissioned three expert reports, and obtained documentary material from several institutions. 43. On 8 November 1995 the investigator concluded his work on the case and proposed to the competent prosecutor to submit an indictment in court. However, the proceedings remained dormant until August 1997.", "44. On 4 August 1997 the prosecutor in charge of the criminal investigation against the applicant transmitted the file back to the investigator considering that the accusation was not supported by sufficient evidence and that, therefore, further investigation was necessary. In particular, it was necessary to establish the applicable rules and practice in the examination of restitution requests so as to clarify whether the applicant had acted in excess of his powers. The prosecutor also mentioned that the investigator should verify the outcome of the civil disputes concerning the ownership of the plot of land in question. 45.", "On 20 August 1999 the investigator drew up a concluding report and transmitted the file to the prosecutor. 46. On 15 October 1999 the prosecutor terminated the proceedings finding that the applicant's intention to bestow an unlawful benefit had not been proven. In his decision, in the summary of facts, the prosecutor mentioned one of the two sets of civil proceedings described above, those opposing Mr S. against the local post office. Those proceedings were still pending at that time.", "The prosecutor's decision did not contain any statement as to the relevance of the civil case to the criminal proceedings against the applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. The provisions of the Penal Code under which the applicant was charged 47. According to Article 282 §§ 1 and 2 of the Penal Code, the offence of acting in an official capacity in excess of competence in order to obtain a benefit or cause harm (abuse of office), where the acts in question are capable of bringing about damage, carries a term of one to eight years' imprisonment.", "48. Article 311 § 1 of the Penal Code provides for a punishment of up to five years' imprisonment for a person convicted of having made a false certification in a document issued in the exercise of this person's official functions, if this is done with the intention to make use of the document. 49. Articles 146 and 148 § 1(3)(4) of the Penal Code, taken together, provide for a punishment of up to two years' imprisonment or a fine for a person convicted of having used offensive language when acting in an official capacity in respect of another person acting in an official capacity. 50.", "Under Article 172 §§ 1 and 2 a person who, acting in an official capacity, knowingly fails to abide by a judicial order for the reinstatement of an unlawfully dismissed employee shall be punished by up to three years' imprisonment. 2. Grounds for a decision of an appellate court to refer the case back to the prosecutor 51. Under the Code of Criminal Procedure, where an appellate court sets aside a trial court's judgement, it shall refer the case back to the investigation or indictment stage of the proceedings whenever the grounds for setting aside include, inter alia, a finding that there have been “substantial procedural violations” at those stages of the proceedings (Article 334 §§ 1(4) and 3 as in force at the relevant time and until 1 April 1998 and, thereafter, Article 333 § 1(1)). The same criterion governs the trial court's power to terminate the trial and refer the case back to the prosecutor (Article 287 § 1(1) and Article 246 § 2 in conjunction with Article 241 § 2(3) of the Code of Criminal Procedure).", "52. On the basis of the broad statutory definition of the term “substantial procedural violation” at the relevant time (Article 330 of the Code, in force until 1 April 1998), the judicial practice accepted that a wide range of omissions required remission of cases to the investigation stage. 53. Although the new definition of the term “substantial procedural violation” under Article 352 §§ 3 and 4 of the Code (in force since 1 April 1998, applicable mutatis mutandis to all judicial stages of the proceedings) is narrower than that under the former Article 330, in its interpretative decision No. 2 of 7 October 2002, the Supreme Court of Cassation noted that the courts often remitted cases to the initial stage of the criminal proceedings without justification.", "3. Stay of criminal proceedings 54. Under the Code of Criminal Procedure (Articles 22, 22a and 37), criminal proceedings may be suspended on several grounds which do not include pending civil proceedings. The underlying principle is that the criminal courts have jurisdiction to decide on any civil law issue relevant to the outcome of the criminal case. 4.", "Undertaking not to leave town without authorisation 55. Under Article 146 of the Code of Criminal Procedure, a measure to secure appearance before the competent authority must be imposed in respect of every person accused of having committed a publicly prosecuted offence. 56. The most lenient such measure is a written undertaking by the accused that he would not leave his place of residence without authorisation by the respective authority - the prosecutor or the court, depending on the stage of the proceedings (Article 149 of the Code of Criminal Procedure). THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 57. The applicant complained that the two sets of criminal proceedings against him were excessively lengthy. He relied on Article 6 § 1 of the Convention which provides, insofar 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. The 1993 criminal proceedings against the applicant 1. The parties' submissions 58.", "The applicant submitted that the accusations against him were in their majority so evidently ill-founded that they did not require complex analysis. As of January 2001 the majority of the initial charges brought in 1993 had been dropped. However, that was only done after many years during which the proceedings were unnecessarily complicated and delayed by the prosecution authorities. 59. The applicant considered that the prosecutors and the investigators were responsible for the excessive length of the proceedings.", "The preliminary investigation between May 1993 and October 1994 did not proceed speedily as the case was returned in September 1993 for renewed investigation. The applicant agreed with the Government that no undue delays occurred in the proceedings before the District Court and the Regional Court between January 1995 and July 1996. However, he criticised the conduct of the authorities after July 1996. In particular, the work done by the authorities on his case between July 1996 and September 1999 was so little that it could have been completed within two months. Instead, three years and two months passed.", "60. The applicant further protested against the allegation that he had been responsible for certain delays. In particular, most of the ninety-three witnesses cited by him were also called by the prosecution. 61. The applicant added that the work done in the investigation against him between September 1999 and March 2001 did not require more than one month.", "He finally stressed that the grounds on which the charges against him were being dropped, one after the other, were known already in 1993. 62. The Government submitted that the criminal case was of an exceptional complexity. It concerned accusations relating to several series of events. In particular, there were tens of counts of unlawful granting of tenancy rights.", "Enormous documentary material had to be collected and analysed, experts had to be appointed and witnesses had to be heard. The case file consisted of sixteen volumes. Furthermore, numerous issues of administrative or civil law nature were of relevance to the determination of the criminal charges. 63. As regards the conduct of the authorities, the Government stressed the exemplary work of the District Court which held nineteen hearings, heard about one hundred witnesses and examined voluminous material within only one year.", "The Regional Court also decided within a very short time. 64. In contrast, according to the Government, the applicant contributed to the delays. In particular, he did not object against the adjournments, refused to answer certain questions and repeatedly requested the collection of additional evidence. He cited ninety-three witnesses not before the fifth hearing of the District Court.", "In one case he requested adjournment because his lawyer was ill, although he had two lawyers. Moreover, he submitted appeals against the alleged inactivity of the authorities, thus causing delay, as the examination of the appeals took time. 65. A number of delays were objectively inevitable: after the referral of the case back to the investigator, it was assigned to a new investigator who had to study the case-file. Also, the failure of witnesses to appear caused adjournments.", "2. The Court's assessment 66. The proceedings were instituted in May 1993. According to the latest information from the parties, a hearing before the District Court was listed for 22 April 2002 (see paragraphs 8 and 37 above). 67.", "The period under examination is thus at least eight years and eleven months, the proceedings on part of the charges being still pending at the trial stage. 68. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular, the complexity of the case, the conduct of the applicant and of the authorities dealing with it as well as what was at stake for the applicant (see, among other authorities, Ziacik v. Slovakia, no. 43377/98, §§ 37-46, 7 January 2003, unreported, and Pélissier and Sassi v. France [GC], no. 25444/94, 25 March 1999, § 67).", "69. The Court accepts that the proceedings were factually and legally complex (see paragraphs 8, 14, 16, 18 and 36 above). 70. No major undue delays occurred before July 1996. Part of the criminal charges were determined within a reasonable time, by final judgment of 28 February 1997 (see paragraph 22 above).", "71. However, there were long periods of inactivity after July 1996, in the proceedings concerning the remainder of the charges. In particular, nothing was done in the investigation between July 1996 and April 1997 as the case file was unavailable. That was to a certain extent the result of delays in the transmission of the case file between different institutions. It is true that during a part of that period, between October 1996 and February 1997, the case file was at the Supreme Court of Cassation for the examination of the applicant's appeal against his partial conviction.", "However, that appeal did not concern the remainder of the charges, which had been referred for additional investigation (see paragraph 22 above). The State authorities were under an obligation to organise the transmission of documents, or copies thereof, in such a manner so as to ensure that the proceedings be dealt with within a reasonable time. 72. Another undue delay occurred between January and August 1998. Thereafter, eight months were taken up by a dispute between the investigator and the prosecutor as to the need for further investigation.", "The proceedings were practically dormant between November 1999 and August 2000. Furthermore, no explanation has been provided by the Government for the period after August 2000, when the case was again pending at the preliminary investigation stage (see paragraphs 28-37 above). 73. Finally, the Court observes that the length of the proceedings as a whole was to a large extent the consequence of the fact that after the quashing the applicant's conviction on part of the charges on 23 July 1996, the case was referred back to the preliminary investigation stage (see paragraphs 22 and 23 above). The Government have not shown convincingly that restarting the proceedings at such an initial phase was indispensable.", "Insofar as that may have been required by domestic law and practice (see paragraphs 51-53 above), the Court reiterates that the enjoyment of the right of every accused person to a trial within a reasonable time within the meaning of Article 6 § 1 of the Convention must be secured by the authorities through all appropriate means, including change of practice or legislative amendments if necessary. 74. As to the Government's argument that the applicant had been at the origin of certain adjournments, these concerned the period before July 1996, whereas all major delays occurred after that. 75. The Court finds, in the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, that the length of the 1993 criminal proceedings failed to satisfy the reasonable time requirement.", "There has accordingly been a violation of Article 6 § 1 of the Convention in this respect. B. The 1995 criminal proceedings against the applicant 1. The parties' submissions 76. The applicant noted that nothing had been done in the case for several years.", "He disputed the Government's statement that related civil proceedings required a stay of the criminal proceedings. 77. The Government submitted that the delay in the 1995 proceedings was due to the fact that the prosecutors needed to await the outcome of the civil proceedings concerning the ownership of the plot of land that had been returned to Mr S. by order of the applicant, acting as mayor of Samokov. 2. The Court's assessment 78.", "The Court observes that the criminal proceedings under examination lasted approximately four years and five months (March 1995 - August 1999) and never moved beyond the preliminary investigation stage. 79. It is undisputed that the proceedings were practically dormant after November 1995. The disputed question is whether or not that was justified by the fact that civil proceedings on related matters were pending during that period. 80.", "The subject matter of those civil proceedings was limited to the question whether Mr S. or the post office was the owner of the disputed plot of land and whether or not the Regional Governor's order of 1995, quashing the 1992 restitution order issued by the applicant, was lawful. Despite the obvious factual link with the criminal proceedings against the applicant, it has not been shown that the outcome of such civil proceedings could be decisive to the issue of the applicant's criminal responsibility for abuse of office. 81. In any event, the Government have not referred to legal provisions or practice of the national courts demonstrating that pending civil proceedings could serve as grounds for the suspension of criminal proceedings. The Court notes that the applicable underlying principle in Bulgarian law is that the criminal courts have jurisdiction to decide on any civil law issue relevant to the outcome of the criminal case.", "82. Furthermore, the Court notes that there was no formal decision to stay the criminal investigation against the applicant. If they considered it necessary to await the outcome of the civil cases in question, the authorities should have ordered a stay of the criminal proceedings. That would have enabled the applicant to appeal and argue that there was no relevant link between his case and the civil proceedings involving Mr S. 83. Finally, it is noteworthy that the criminal proceedings against the applicant remained dormant for another two years after the 1997 final judgment in the civil case concerning the validity of the Regional Governor's order and were eventually terminated, on grounds unrelated to the civil proceedings, without awaiting the outcome of the case brought by the post office against Mr S. 84.", "It follows that the civil proceedings referred to by the Government cannot justify the inactivity in the criminal case against the applicant. 85. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Courts finds that the length of the 1995 criminal proceedings failed to satisfy the reasonable time requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 87. The applicant claimed the following amounts: (i) 5,250 Euros (EUR) in respect of lost salary for the period between January 1994, when he was suspended from office as mayor, and November 1995, when his term of office would have ended (see paragraph 12 above); (ii) EUR 299 per month for a period of 46 months (between November 1995 and August 1999) in respect of lost opportunities to do private business; and (iii) EUR 33,000 in respect of alleged lost opportunities to study for a Master's degree.", "The total amount claimed in respect of pecuniary damage was thus EUR 47,450. 88. The applicant submitted that he was unable to seek possibilities for employment or business outside the small town of Samokov as throughout the criminal proceedings he was bound by the order to remain in town (see paragraph 9 above). In support of his claims the applicant submitted copies of documents concerning his salary as a mayor before his removal and preliminary correspondence with research institutes where the applicant intended to apply for graduate studies. 89.", "The Government replied that there was no causal link between the length of the proceedings and the alleged pecuniary damage claimed. In the alternative, they stated that the claims were unproven and in any event excessive. In particular, the applicant's removal from the post of mayor was necessary in view of the fact that the accusations concerned abuse of office. Further, he had not proved that he would have earned an amount in salary or other income but for the length of the criminal proceedings. 90.", "The Court notes that the applicant's complaints that his suspension and removal from office violated the Convention were declared inadmissible in the partial decision of 9 March 1999. 91. Nevertheless, insofar as the applicant's suspension from office and the restrictions on his freedom of movement imposed in the framework of the criminal proceedings (see paragraphs 9, 55 and 56 above) would have been brought to an end earlier had the criminal proceedings been completed earlier, the Court must examine the applicant's claim for just satisfaction in this respect. 92. The Court's finding of a violation of the right to trial within a reasonable time as regards the 1993 criminal proceedings, which are relevant here, was based primarily on the delays in the proceedings after July 1996 (see paragraphs 71-75 above).", "It follows that the claims for pecuniary damages on account of lost opportunity before July 1996 cannot be granted. 93. As regards the alleged loss of business or education opportunities after that time, the claim is unproven. The applicant has not shown that he had lost money as a direct consequence of the length of the criminal proceedings. He has not shown that he was refused authorisation to leave Samokov (see paragraph 56 above) for purposes of undertaking a lucrative activity.", "The claims for pecuniary damages are therefore dismissed. 2. Non-pecuniary damage 94. The applicant claimed non-pecuniary damages on account of the fact that his reputation was harmed and that for many years he could not move forward with his life projects. The applicant left to the Court the determination of the amount to be awarded in this respect.", "95. The Government replied that the alleged non-pecuniary damage was unrelated to the issue in the present case 96. Insofar as the applicant claims that his reputation was harmed as a result of the accusations against him, the Court notes that the violation of his rights found in the present case concerns solely the excessive length of the criminal proceedings. 97. The Court accepts that the applicant has suffered non-pecuniary damage, such as distress and frustration relating to the length of the proceedings, which is not sufficiently compensated by the findings of violation of the Convention.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head. B. Costs and expenses 98. The applicant, who was not legally represented, did not claim costs. C. Default interest 99.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the 1993 criminal proceedings against the applicant; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the 1995 criminal proceedings against the applicant; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (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 3 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF REINBOTH AND OTHERS v. FINLAND (Application no. 30865/08) JUDGMENT STRASBOURG 25 January 2011 FINAL 25/04/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Reinboth and Others v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić,Vincent A. de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30865/08) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, Ms Susanna Helena Reinboth and Mr Janne Sakari Virkkunen, and a Finnish newspaper company Helsingin Sanomat Oy (“the applicants”), on 24 June 2008. 2. The applicants were represented by Mr Petteri Sotamaa, 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 applicants alleged, in particular, that they had been convicted of a crime in violation of Article 7 of the Convention and that their right to freedom of expression under Article 10 of the Convention had been violated. 4. On 10 September 2008 the President of the Fourth Section decided to communicate the applicants' complaints under Articles 7 and 10 to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The first and second applicants were born in 1963 and 1948 and live in Helsinki. The applicant company is based in Helsinki. The applicant company is the publisher of a daily newspaper called Helsingin Sanomat which has a circulation of approximately 430,000. The first applicant was a journalist and the second applicant the editor-in-chief of the publication at the relevant time. 6.", "On 3 February 2000, during the presidential election campaign, a short article was published in the newspaper Ilta-Sanomat, entitled “The ex-husband of [R. U.] and the person in charge of communications for the [E.A.] campaign have found each other”. The article stated that P.N., who was separated from his wife, had found a new partner, O.T.", "The wife of P.N. was known as a political reporter in the election-related TV debates and previously as a news reader. It was mentioned in the article that O.T. was in charge of communications for the E. A. campaign and that, in her civilian life, O.T. was the communications manager in a specified pension insurance company and a mother.", "7. The article went on to state that, before joining the campaign, O.T. had been active in the same political party as P.N. and that she had been involved in some “insider committees”. The article continued to note that P.N.", "worked as a director for F., a company promoting Finnish exports, and that in the 1990s he had been posted in New York, where his wife had followed him, taking leave from her own job. The article stated that P.N. and his wife had two children and that they had separated in the autumn of 1999. Pictures of O.T. and P.N.", "'s wife were included in the article. 8. On 1 February 2002 the journalist and the editor-in-chief of Ilta-Sanomat were convicted by the Forssa District Court (käräjäoikeus, tingsrätten) for having violated O.T. 's private life by publishing the original article. On 12 December 2002 and 4 July 2005, respectively, the Turku Court of Appeal (hovioikeus, hovrätten) and the Supreme Court (korkein oikeus, högsta domstolen) upheld the judgment.", "These proceedings were public. 9. On 2 and 10 February 2002 the applicant company published two articles on the trial and the judgment of the Forssa District Court, written by the first applicant and approved by the second applicant. 10. The first article summarised the judgment of the District Court, including O.T.", "'s full name and the court's sentence. It also described the court proceedings and stated that the decision had required a vote as one of the lay members of the court would have preferred to dismiss the charges. Moreover, the first article also included some of the details about O.T. 's private life already published in the original article of 3 February 2000. 11.", "The second article was published as a legal column in a Sunday edition of the paper. The article reproduced the content of the original article without mentioning any names. It made reference to the trial and went on to explain the history of the Penal Code section concerning invasion of privacy that had been introduced in 1974. The article went on to state that the law did not define privacy, but left it to the courts to interpret on a case-by-case basis. The section was amended in 2000, but the only change in essence, according to the article, was the title of the section, now known as dissemination of information violating private life.", "The article further noted that the worst fears of the press had never materialised but there had been some surprises. The article made reference to a decision of the Supreme Court from 2001 to convict Alibi magazine for publishing a story with a picture and the name of a person who was at the time accused and later convicted of fraud on public pension funds. The article then reverted to the judgment in question pondering, without mentioning any names, as to who could be considered a private person and what was the responsibility of such a person with regard to his or her public performance and behaviour. 12. On 14 March 2002 O.T.", "requested that a criminal investigation be initiated against the applicants on the basis of the articles. The prosecutor pressed charges on 31 January 2003 and the applicants were summonsed on 31 March and 1 April 2003. 13. As the original decision of 1 February 2002 by the Forssa District Court had been upheld by the Turku Court of Appeal on 12 December 2002 and was pending before the Supreme Court, the Vantaa District Court decided on 15 September 2004 to wait for the final decision in the original case before examining the applicants' case. It is stated in the decision of the Vantaa District Court that the request for adjournment was made by the applicants.", "This is contested by the first applicant. 14. On 4 July 2005 the Supreme Court gave a lengthy judgment in the case against Ilta-Sanomat (KKO 2005:82) wherein the question of whether the article had infringed O.T. 's privacy was thoroughly examined in the light of the national legislation and the case-law of the Court. 15.", "On 18 October 2005 the Vantaa District Court held a hearing in the applicants' case. 16. On 3 November 2005 the District Court convicted the applicants of dissemination of information violating private life. The first applicant was ordered to pay 740 euros (EUR), the second applicant EUR 1,140, both amounts being 10 day fines as adjusted by their taxable income. All three applicants were ordered jointly to pay compensation to O.T.", "in the amount of EUR 6,000 plus interest for suffering and distress and EUR 11,845.95 plus interest for her legal costs. 17. The court found that as two years had passed since the publication of the original article, O.T. was now entitled to the total enjoyment of private life and that there had thus been no ground for the disclosure of her name. As to the legality principle, a Penal Code could not be drafted in a manner covering all possible situations that might be envisaged.", "The first applicant had been well aware of the legal situation, and the interpretation of the provision in question had been well established and foreseeable. When a court found that private life has been invaded, another offence will be committed if that judgment is reported by mentioning the very same details of private life. The court was not unanimous as one of the lay judges dissented. 18. By letters dated 30 November and 1 December 2005 the applicants appealed to the Helsinki Court of Appeal claiming, inter alia, that the conviction and sanctions imposed on them violated Article 10 of the Convention and that no grounds had been presented to show why it had been necessary in the present case to restrict their freedom of expression.", "Confidential information could only be disclosed once. The District Court judgment was public and everyone had a constitutional right to have information about a public document. The information had also been published twice before. The applicants had lacked intent as they had not realised that they were committing a crime when publishing the articles. 19.", "On 20 April 2007 the Court of Appeal upheld the Vantaa District Court's judgment. The applicants were obliged to cover O.T. 's legal fees before the Court of Appeal in the amount of EUR 2,623 plus interest. The court found that the present case was about conflicting fundamental rights, namely the core areas of protection of private life and the margins of the freedom of expression. It was not juridically relevant whether the disclosed information was based on court case files or whether somebody else had earlier disclosed that information.", "As the Forssa District Court had on 1 February 2002 already found that the information disclosed in the original article had invaded O.T. 's privacy and as she was no longer in the same position as in 2000, the applicants had had no right to disclose her name when reporting on the Forssa District Court judgment. 20. By letters dated 24 May and 13 June 2007 the applicants appealed to the Supreme Court, reiterating the grounds of appeal already presented before the Court of Appeal. 21.", "On 28 December 2007 the Supreme Court refused the applicants leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional provisions 22. Article 8 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no.", "731/1999) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence. 23. Article 10 of the Constitution guarantees everyone's right to private life. According to it, “Everyone's private life, honour and the sanctity of the home are guaranteed.", "More detailed provisions on the protection of personal data are laid down by an Act. The secrecy of correspondence, telephony and other confidential communications is inviolable. Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.” 24. Article 12 of the Constitution concerns the freedom of expression and provides the following: “Everyone has the freedom of expression.", "Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act. Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” B.", "Penal Code 25. Chapter 24, section 8, of the Penal Code (rikoslaki, strafflagen as amended by Act no. 531/2000) reads as follows: “Dissemination of information violating private life: A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of injuring personal reputation and sentenced to a fine or a maximum term of two years' imprisonment. The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute injury to personal reputation, if it may affect the evaluation of that person's activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.” 26. According to the travaux préparatoires (see government bill HE 184/1999), the content of this provision corresponds to the old Chapter 27, section 3(a), of the Penal Code.", "The amendments and clarifications made to the existing provision were mainly technical. The provision thus still restricts the protection of the private life of persons having important political or economic powers. Functions in respect of which the protection of private life is narrower in scope under paragraph 2 include political functions, business functions and public functions or duties. The matter must have social significance. This restriction, however, applies only to the persons referred to, not to their close friends and family.", "According to the Parliamentary Law Committee's Report (lakivaliokunnan mietintö, lagutskottets betänkande LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions. 27. The government bill HE 184/1999 further provides that in the assessment of interferences with private life, the lawfulness of the interference and the concept of private life are taken into account. The publicity of a document does not automatically give the right to present in the mass media information concerning one's private life included in the document. A person's consent to the provision of information has relevance in the assessment of the lawfulness of the interference.", "Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see Parliamentary Law Committee's Report LaVM 6/2000). Moreover, private life is, in particular, protected against dissemination of information which may be correct as such. In order for the act to be punishable, it is necessary that the information concerns the private life of the person in question (see government bill HE 184/1999). With regard to the concept of private life, a reference is made to the explanatory works concerning the Constitutional provisions on fundamental rights and to the government bill HE 84/1974. 28.", "In the travaux préparatoires concerning the old Chapter 27, section 3(a), of the Penal Code (see government bill HE 84/1974), there was no precise definition of private life but matters such as, inter alia, family life, spare time activities, health and relationships and such conduct in socially significant positions that had no significance to the relevant exercise of power, were considered as a part of private life. It was further required that the act might have caused damage or suffering. Such damage might have also been “immaterial damage, which might have manifested itself in problems with social interaction or respect”. An ordinary person enjoyed the strongest protection of private life. His or her involvement in an incident of importance to society might have warranted an exception to the protection.", "In any case, if an offence was of such a kind that it could not be regarded as having social significance, it was a matter to be protected as belonging to the sphere of private life, otherwise the protection of private life did not restrict publishing. Moreover, the publishing could not be to a greater extent than was necessary. Thus, the necessity of mentioning a person's name or other description of a person enabling identification was always subject to careful consideration. C. Provisions concerning publicity 29. The Act on the Openness of Government Activities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet; Act no.", "621/1999) contains provisions on the right of access to official documents in the public domain, officials' duty of non-disclosure, document secrecy and any other restrictions of access that are necessary for the protection of public or private interests, as well as on the duties of the authorities to achieve the objectives of the Act. However, there are specific provisions that apply to court hearings. 30. According to section 22 of the Act on the Publicity of Court Proceedings in General Courts (laki oikeudenkäynnin julkisuudesta yleisissä tuomioistuimissa, lagen om offentlighet vid rättegång i allmänna domstolar; Act no. 370/2007), the court decisions are public unless the court orders that they be kept secret.", "The parties and the public have the right to be present when the decisions are pronounced. 31. According to the preparatory works of the Act (see government bill HE 13/2006), “... the case files are to a large extent public and the publicity does not limit itself to publicity of oral hearings. On the other hand, in Finland the publicity of the case files does not automatically mean that all public documentation could as such, for example, without invading privacy, be published in the media. This right of the media to publish is limited not only by its self-regulation but also for example by the provisions of the Penal Code concerning the protection of privacy.", "It can, thus, be said that publicity is wider and the control of the protection of privacy is done mostly in arrears. It is for the media themselves to consider which of the public documentation they shall publish.” D. Provisions concerning liability 32. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the content of printed material. 33.", "Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, home or private life. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.", "34. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.", "E. Supreme Court practice 35. The Supreme Court decision (KKO 1980-II-99) concerned public showing of a series of photographs of half-naked children. The act was committed before the entry into force of Chapter 27, section 3(a), of the Penal Code and no criminal sanctions were requested. 36. In a Supreme Court decision (KKO 1980 II 123) the following was noted (summary from the Yearbook): “The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff's consent.", "He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.” 37. On 11 June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court's Yearbook): “A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.” 38.", "The second decision (KKO 1997:81) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook): “Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.” The article published in the periodical had similarly mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical.", "Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff's conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant's name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant's name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering.", "The disclosure of the complainant's name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid. 39. The Supreme Court's decision of 26 September 2001 (KKO 2001:96) concerned the publication in a magazine of an article which had described a pending criminal case in which the accused had been charged with, inter alia, aggravated fraud. The article had been illustrated, without the accused's permission, with another article published previously in another magazine and with a picture of the accused published in that connection.", "The accused's name had been given in the text of the article and she could be recognised from the picture. The Supreme Court found that the criminal case had no such social significance that would justify its publication without the accused's permission and, consequently, her private life had been invaded. 40. The Supreme Court's decision of 25 June 2002 (KKO 2002:55) concerned an incident following which A., a public figure, and B., his female friend, had been convicted. When interviewing A., B.", "'s name was mentioned in the television broadcast in January 1997, that is, after they had been convicted. The court found that the facts discussed in the television programme with regard to B. were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name. The interviewer and the television company were ordered to pay B. damages in the amount of EUR 8,000 for disclosing her identity in the television programme. 41.", "The decision of 4 July 2005 (KKO 2005:82) concerned the publishing of the original article in the present case. The article had been written about a relationship between A., who worked as a press officer for a candidate in the presidential elections, and B., the ex-spouse of a TV journalist. A. 's photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court's case-law, found that A. did not hold a position that meant that such details of her private life were of public importance.", "The article had thus invaded A. 's privacy. 42. In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence was not a private matter for the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoyed the right inherent in private life to live in peace.", "According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualified as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents did not mean that information made public during the proceedings could be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim's human dignity. Furthermore, the article in question did not include his photo. 43.", "The Supreme Court's decision of 16 March 2006 (KKO 2006:20) concerned the scope of the private life of a leading public prosecutor whose name or identity had not been revealed in an article which mainly concerned his wife, who had been suspected of having committed a crime. The Supreme Court concluded that the issue had had social significance as the person under suspicion was the public prosecutor's wife. Even though the public prosecutor could have been identified from the article, this was justified by the fact that his own impartiality as a prosecutor was at stake. 44. In the Supreme Court's decision of 22 January 2009 (KKO 2009:3) A. had been convicted of incest with his children and the case file was declared secret.", "Later A. revealed certain details of the case in a television programme. The court found that, even though the children had remained anonymous in the programme, they could still be identified because A. had appeared in the programme undisguised and his first name had been given. The privacy of the children and their mother had thus been invaded. 45. The latest Supreme Court decision of 16 June 2010 (KKO 2010:39) concerned invasion of privacy of the Prime Minister by his ex-companion.", "The Supreme Court found that the ex-companion had had no right to disclose intimate details about the Prime Minister's private life and their dating in her book. F. Self-regulation of journalists 46. The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that matters falling in the sphere of private life, being detrimental to the relevant party or his or her near relative, should not be published unless the matters are of general significance (Article 24). The principles concerning the protection of an individual also apply to the use of information contained in public documents or other public sources.", "Information being public does not always mean that it is freely publishable (Article 29). 47. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. Highly delicate information relating to one's personal life may only be published with the consent of the person in question, or if such matters are of considerable public interest (Article 27). 48.", "Also the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier), which is a self-regulating body established in 1968 by publishers and journalists in the field of mass communication and whose task it is to interpret good professional practice and defend the freedom of speech and publication, has issued a number of resolutions and statements, inter alia, in 1980 and 1981. The former concerned the content of private life and the latter disclosure of names in crime news coverage. 49. In its statement of 1980, the Council for Mass Media stated, inter alia, that the protection of private life applies, in principle, to all citizens. The greater and more profound social implications a matter has, the more important it is to be able to publish information thereon.", "The Council divided persons into three groups as to the protection of identity: (1) persons exercising political, economic or administrative power; (2) other public persons, for example in the sectors of entertainment, sports, arts or science; and (3) ordinary citizens. The Council noted that the protection of identity is narrowest for group 1 and most extensive for group 3. However, this scale was not to be used formally, but the extent of protection should be interpreted on a case by case basis. A person's position had a great significance in determining the protection of private life but that alone could not be considered as a decisive factor. The significance of a matter also had an important impact.", "The conduct of a well-known person appearing in public in connection with his or her professional tasks or public role does not as such belong to such person's protected private life. On the contrary, information concerning lifestyle does normally belong to such person's sphere of private life even though his or her sphere of protection is narrower than that of an ordinary citizen. In some cases information concerning a person's lifestyle can be closely connected to his or her professional tasks in a way that its publication is justified. It is required, however, that the matter in question does have considerable general significance. Also, the publishing should not extend further than is necessary for the consideration of the matter.", "Finally, it is in accordance with good journalistic practice to see to it that the publishing does not cause undue suffering for the person in question or for his or her relatives. III. RELEVANT INTERNATIONAL MATERIALS 50. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings.", "In points 1, 2 and 8 of the principles appended to the recommendation, it considers as follows: “The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention.", "Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 51. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay. THE LAW I. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE CONVENTION 52.", "The applicants complained that they had been convicted of a crime in violation of Article 7 of the Convention and that their right to freedom of expression under Article 10 of the Convention had been violated in respect of the articles published in February 2002. 53. Article 7 of the Convention, which reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” 54. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 55. The Government contested these arguments. A. Admissibility 56.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "The parties' submissions (a) The applicants 57. The applicants noted that the first article on 2 February 2002 had been purely an account of a court trial. The article had described the judgment of the Forssa District Court in a neutral manner commonly used when reporting trials. It was undisputed that the account of the trial had been based on facts, that the events reported and comments quoted in the article had been based on the public case file, that the reporting had not compromised the prerequisites of a fair trial and that the trial had been public. There had been no reasons relating to the trial itself why reporting should have been restricted.", "The second article was a commentary on legal policy similar to a newspaper column. No names had been mentioned in that article. The information provided in the article had been based on public events which had come to light during the trial, and on public facts which could be found in official documents. 58. At the time of the publication of the articles, national legislation had contained no provision criminalising the publication of public information, nor had any such provision been laid down in national legislation to this date.", "The internal Guidelines for Journalists had laid down clearly more stringent requirements than the legislation in force at the time. The Guidelines had, however, been prepared for the sole purpose of the industry's self-regulation and could not be used as a basis for criminal or tort liability. Such liability could only be based on law. 59. The applicants argued, under Article 7 of the Convention, that Finnish law contained no provision which defined reporting of a public trial as a punishable offence.", "At the time of the publication of the articles, it had been unforeseeable and surprising to the applicants that penal sanctions could be imposed on them for having published public information that had been freely available to everybody and to which anyone could have had access on the basis of Article 12, paragraph 2, of the Constitution of Finland. The published information remained even today freely available. The interference with the applicants' freedom of expression had thus not been foreseeable or “prescribed by law”. 60. The applicants maintained that nor had the interference been “necessary in a democratic society”.", "The press had the right and obligation to distribute information and thoughts about all issues of public interest and concern. A journalist was entitled to the protection safeguarded by Article 10 of the Convention at least in circumstances in which the journalist was distributing public information that was both correct and reliable. Journalistic ethics required a journalist to tell readers what was going on in society. This requirement was of particular significance with regard to the reporting of trials as trial accounts fostered the openness of court proceedings and was at the very core of the freedom of expression. Trials, and especially the already delivered court decisions, had to be reportable in the media.", "61. The applicants noted that the facts in the present case had in all respects been based on public official documents. There could be no pressing social need to prevent such reporting. Quite the contrary; the openness of court proceedings was in fact achieved through the media. Trial reporting was of great importance to society and it was the core mission of freedom of expression.", "The information reported in the article had previously been published in a newspaper of wide circulation and in a pre-election book published at the time by the presidential candidate. The information had already been freely available to the public, it had been public and it had remained freely accessible to anyone. The Government had not put forward any “pressing social need” to interfere with the applicants' freedom of expression. Finding the applicants guilty of an offence and ordering them to pay damages was not proportionate in relation to the acceptable aims for restricting freedom of expression. (b) The Government 62.", "The Government agreed that the conviction of the first and second applicants and the obligation of all applicants to pay damages and costs had amounted to an interference with their right to freedom of expression. 63. As to the requirement that measures be “prescribed by law” the Government pointed out that the impugned measures had had a basis in Finnish law, namely in Articles 8, 10 and 12 of the Constitution and, in particular, in Chapter 24, section 8, of the Penal Code. Even if the Penal Code provision in question had only been in force for about one and a half years at the time of the events, already the earlier provision of the Penal Code, which had been in force for 25 years, together with the preparatory works, had described the concept of private life and had guided the interpretation of the said provision. The earlier provision had been interpreted by the Supreme Court on several occasions prior to the publication of the impugned article.", "The rules on criminal liability could thus be regarded as having been gradually clarified through judicial interpretation in a manner which had been consistent with the essence of the offence. There had been no greater difficulties in the application of the said provision, although the boundary between the protection of private life and the freedom of expression had been sought here more clearly than in the application of other provisions of the Penal Code. The general nature of the provision had allowed for its flexible application in line with social developments as well as the balancing of the freedom of expression and the protection of private life. According to the Court's case-law, the consequences which a given act may entail did not have to be foreseeable with absolute certainty as this was unattainable. Consequently, in the Government's view, the relevant domestic law had been precise enough in order for the applicants to be able to foresee, to a degree that was reasonable in the circumstances of the present case, the consequences which their action would entail.", "64. Moreover, the Government noted that the right to have access to public information did not entail that public information was always publishable. The Guidelines for Journalists and the practice of the Council for Mass Media both regulated also publication of information concerning one's private life. The Council had stated that the conduct of a well-known person appearing in the public connected to his or her professional tasks or public role did not as such belong to such person's protected private life. On the contrary, information concerning lifestyle did normally belong to such person's sphere of private life.", "The applicants should have understood that the publishing of all information contained in public documents had not been automatically permissible and that the name of a victim of a crime could not be automatically published either. Accordingly, the interference had been foreseeable and “prescribed by law” as required by Articles 7 and 10 § 2 of the Convention. Moreover, the legitimate aim had been to protect the private life of O.T., namely the reputation and rights of others. 65. The Government maintained that the interference had also been “necessary in a democratic society”.", "It was undisputed that the information published concerned O.T. 's private life and that she had not been a public figure within the meaning of Chapter 24, section 8 of the Penal Code. In any event, the private life of public officials, politicians or actors in business life was not automatically public but could be revealed if necessary in dealing with a socially important matter. The Supreme Court had noted in its precedent case KKO 2005:82 that O.T. had not been a public official but an assistant in elections of a political candidate.", "The political motivations connected to her recruitment could not be considered to entail that protection of her private life would become narrower. The extra-marital relationship had not, at any rate, had any impact on O.T. 's capacities to perform her function as a communications expert for the election campaign. In any event, at the time of the publication of the articles in question in 2002, O.T. had no longer been in a similar position to that during the presidential elections campaign in 2000.", "O.T. 's appearance with P.N. in public places had not reduced the protection of her privacy nor could it be considered as tacit consent to the disclosure of such information. The articles could have been written without mentioning O.T. by name or referring to other information on her private life.", "66. As to the fines imposed, the Government argued that they had been moderate. The damages and the costs the applicants had been ordered to pay to O.T. had also been reasonable. Bearing in mind the margin of appreciation, the Government argued that the interference in the present case had been “necessary in a democratic society”.", "2. The Court's assessment under Article 10 of the Convention 1. Whether there was an interference 67. The Court agrees with the parties that the applicants' conviction, the fines imposed on them and the award of damages constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 2.", "Whether it was prescribed by law and pursued a legitimate aim 68. As to whether the interference was “prescribed by law”, the applicants argued that, at the time of the events or even currently, the national legislation contained no provision criminalising the publication of public information and that they had not therefore been able to foresee that criminal sanctions could be imposed on them for having published details of a public judgment. The Government argued that the scope of criminal liability had gradually been clarified through judicial interpretation in a manner which had been consistent with the essence of the offence and with good journalistic practice, and that Chapter 24, section 8, of the Penal Code had been precise enough in order for the applicants to be able to foresee, to a degree that was reasonable in the circumstances of the present case, the consequences which their action had entailed. 69. The Court notes that the parties agree that the interference complained of had a basis in Finnish law, namely Chapter 24, section 8, of the Penal Code.", "The parties' views, however, diverge as far as the scope and foreseeability of the said provision are concerned. The Court must thus examine whether the provision in question fulfils the foreseeability requirement. 70. The Court has already noted that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the individual to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.", "Again, whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and mutatis mutandis Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260-A).", "71. As concerns the provision in question at the relevant time, Chapter 24, section 8, of the Penal Code, the Court has already found in the Eerikäinen case (see Eerikäinen and Others v. Finland, no. 3514/02, § 58, 10 February 2009), in which the earlier provision of the Penal Code was at stake, namely that of Chapter 27, section 3(a), that it did not discern any ambiguity as to its contents: the spreading of information, an insinuation or an image depicting the private life of another person which was conducive to causing suffering qualified as invasion of privacy. Furthermore, the Court notes that the exception in the second sentence of the earlier provision concerning persons in a public office or function, in professional life, in a political activity or in another comparable activity is equally clearly worded (see Flinkkilä and Others v. Finland, no. 25576/04, § 66, 6 April 2010).", "The Court finds that the content of Chapter 24, section 8, of the Penal Code corresponds to the old Chapter 27, section 3(a), of the Penal Code as the amendments and clarifications made to the existing provision have been mainly technical (see and compare Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 42, ECHR 2007‑XI). 72. While at the time when the articles in question were published, in February 2002, there were five Supreme Court decisions concerning the interpretation of the provisions in question, all of which concerned different aspects of private life, the Court finds that the possibility that a sanction would be imposed for invasion of private life was not unforeseeable. Even though there was no precise definition of private life in the preparatory works (see government bills HE 84/1974 and HE 184/1999), these works mentioned that the necessity of mentioning a person's name or other description of a person enabling identification was always subject to careful consideration.", "Had the applicants had doubts about the exact scope of the provision in question they should have either sought advice about its content or refrained from disclosing O.T. 's identity. Moreover, the applicants, who were professional journalists, could not claim to be ignorant of the content of the said provision since the Guidelines for Journalists and the practice of the Council for Mass Media, although not binding, provided even more strict rules than the Penal Code provision in question. 73. The Court concludes therefore that the interference was “prescribed by law” (see Nikula v. Finland, no.", "31611/96, § 34, ECHR 2002-II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004; Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004-X; Eerikäinen and Others v. Finland, cited above, § 58; and Flinkkilä and Others v. Finland, cited above, § 68, 6 April 2010). In addition, it has not been disputed that the interference pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2. 3.", "Whether the interference was necessary in a democratic society 74. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed.", "The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). 75. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”.", "The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I). 76. The Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no.", "29183/95, § 45, ECHR 1999-I). 77. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), cited above § 62, Series A no.", "30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000‑I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).", "78. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997‑I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public (see Egeland and Hanseid v. Norway, no.", "34438/04, § 49, 16 April 2009). Not only do the media have the task of imparting such information and ideas, the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, loc.", "cit.). 79. The limits of permissible criticism are wider as regards a politician than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for example, Lingens v. Austria, cited above, § 42; Incal v. Turkey, 9 June 1998, § 54, Reports of Judgments and Decisions 1998‑IV; and Castells v. Spain, 23 April 1992, § 46, Series A no. 236).", "80. The Court reiterates that civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than is the case of private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the same extent as politicians and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions (see Nikula v. Finland, cited above, § 48). 81. The freedom of expression has to be balanced against the protection of private life guaranteed by Article 8 of the Convention.", "The concept of private life covers personal information which individuals can legitimately expect should not be published without their consent and includes elements relating to a person's right to their image. The publication of a photograph thus falls within the scope of private life (see Von Hannover v. Germany, no. 59320/00, §§ 50-53 and 59, ECHR 2004‑VI). 82. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has stressed the contribution made by photographs or articles in the press to a debate of general interest (see Tammer v. Estonia, no.", "41205/98, §§ 59 et seq., ECHR 2001-I; New Verlags GmbH & Co. KG v. Austria, cited above, §§ 52 et seq. ; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual's private life was not “justified by considerations of public concern” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10.", "83. Turning to the facts of the present case, the Court notes that the first and second applicants were convicted on the basis of disclosure of private details made in the articles in their capacity as a journalist or as editor-in-chief and that they, together with the applicant company, were ordered to pay damages and costs. 84. The Court observes at the outset that the first article of 2 February 2002 summarised the judgment of 1 February 2002 of the Forssa District Court and that it included O.T. 's full name, the court's sentence and the description of the court proceedings together with some of the same details about O.T.", "'s private life already published in the original article of 3 February 2000. The second article of 10 February 2002 reproduced the content of the original article without mentioning any names, made a reference to the trial and went on to discuss the legal framework surrounding the Penal Code section concerning invasion of privacy. 85. The Court notes that these facts were presented in an objective manner. There is no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants.", "Nor is there any suggestion that details about O.T. were obtained by subterfuge or other illicit means (compare Von Hannover v. Germany, cited above, § 68). The facts set out in the articles in issue were not in dispute even before the domestic courts. 86. The Court notes that, in the context of the case Saaristo and Others v. Finland, it has already found that O.T.", "had been politically active in local politics and that her recruitment to the presidential election campaign had attracted political interest. Even though she could not be considered a civil servant or a politician in the traditional sense of the word, she had not been a completely private person either. Due to her function in the presidential election campaign, she had been publicly promoting the goals and objectives of one of the presidential candidates by belonging to his inner circle and by being therefore visible in the media during the campaign. The Court considered that, when taking up her duties as a communications officer for one of the two presidential candidates, she must have understood that her own person would also attract public interest and that the scope of her protected private life would become somewhat more limited. The impugned article had had a direct bearing on matters of public interest, namely the on-going presidential election campaign.", "Moreover, the fact that P.N. 's ex-spouse had conducted election debates on television prior to the publishing of the article, and that the article had apparently been politically motivated and intended to affect the campaign, were also of relevance in this respect. Taking into account that the article had been published during the presidential election campaign and had thus been closely linked to it in time, the Court considered that the article did not only satisfy the curiosity of certain readers but it also contributed to an important matter of public interest in the form of political background information. The Court thus found a violation of Article 10 of the Convention (see Saaristo and Others v. Finland, 12 October 2010, §§ 66-67). 87.", "The Court notes that the same information was repeated in the articles now at stake. As the Court has already found a violation in this respect in the Saaristo and Others v. Finland case, it sees no reason to judge differently in the present case. The only relevant difference was that the article in that case was published two years earlier. However, the Court notes that the information about O.T. 's private life was already available to the public and might already have been known to a large number of people (see Fressoz and Roire v. France [GC], cited above, § 53).", "There was thus no need to prevent the disclosure of that information again. For the Court, it is also of importance that the article was based on public court proceedings and on a district court judgment which was a public document (see Eerikäinen and Others v. Finland, cited above, § 64). The district court did not declare its judgment secret at any point of time (see paragraph 30 above). In addition, there is no indication that the reporting in question would have disclosed any new private information about O.T. (see and compare Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information through the media in relation to criminal proceedings, quoted at paragraph 50 above; and Egeland and Hanseid v. Norway, cited above, § 60).", "88. As regards the second article, the Court notes that O.T. 's name was not mentioned and that it took the form of a commentary on legal policy. Thus, the article was very much in the public interest. 89.", "Finally, the Court has taken into account the severity of the sanctions imposed on the applicants. The first and second applicants were convicted under criminal law and were ordered to pay, in respect of both articles, ten day-fines, amounting to EUR 740 and EUR 1,140 respectively. In addition, they were, together with the applicant company, ordered to pay damages jointly and severally to O.T. in a total amount of EUR 6,000 plus interest and her legal fees amounting to EUR 11,845.95 plus interest and EUR 2,623 plus interest, in total EUR 27,150.08. The amounts of compensation must be regarded as substantial, given that the maximum compensation afforded to victims of serious violence was approximately FIM 100,000 (EUR 17,000) at the time (see paragraph 34 above).", "90. The Court would observe in this connection that, in view of the margin of appreciation left to Contracting States, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], cited above, § 59, Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008). Nevertheless, in the Finnish legal system, when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed.", "In this connection, the Court points out that the imposition of a prison sentence for a press offence will be compatible with journalists' freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired as, for example, in the case of hate speech or incitement to violence (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). For the Court, similar considerations should apply to insults expressed in connection with a public debate (see Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009). The Court would further observe that the Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay (Resolution Towards decriminalisation of defamation adopted on 4 October 2007).", "For the Court, similar considerations should apply to infringements of privacy which arise in circumstances such as those in the instant case (see Saaristo and Others v. Finland, cited above, § 69). 91. The Court considers that such severe consequences, viewed against the background of the circumstances resulting in the interference with O.T. 's right to respect for her private life, were disproportionate having regard to the competing interest of freedom of expression. 92.", "In conclusion, in the Court's opinion the reasons relied on by the domestic courts, although relevant, were not sufficient to show that the interference complained of was “necessary in a democratic society”. Moreover, the totality of the sanctions imposed were disproportionate. Having regard to all the foregoing factors, and notwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts failed to strike a fair balance between the competing interests at stake. 93. There has therefore been a violation of Article 10 of the Convention.", "3. The Court's assessment under Article 7 of the Convention 94. In view of the finding under Article 10 of the Convention that the interference was in accordance with the law, the Court finds that there has been no violation of Article 7 of the Convention in the present case. II. REMAINDER OF THE APPLICATION 95.", "The applicants also complained under Article 6 of the Convention about the excessive length of their proceedings. 96. The Court notes that the applicants' proceedings lasted some five years and nine months at three levels of jurisdiction. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court concludes that the overall length of the proceedings was not excessive and thus satisfied the reasonable time requirement under Article 6 § 1 of 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.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 98. The applicants claimed EUR 29,030.08 in respect of pecuniary loss, consisting of damages and legal costs paid to O.T.", "in the amount of EUR 27,150.08 and of the fines in the amount of EUR 1,880. 99. The Government noted that the pecuniary damages had been paid by the applicant company in its capacity as an employer. The applicants had not submitted all receipts or clarifications regarding the payment of the amounts claimed under this heading or on the interest paid. They left it to the Court's discretion to decide whether the applicants had submitted sufficient documents to support their claims.", "100. The Court finds that there is a causal link between the violation found and the pecuniary damage alleged and that, consequently, there is justification for making an award to the applicants under that head. The Court notes that the pecuniary damages had been paid by the applicant company in its capacity as an employer. Having regard to all the circumstances and to the documents in its possession, Court awards the applicant company the sum claimed in full. B.", "Costs and expenses 101. The first applicant also claimed EUR 9,000 and the applicant company EUR 17,011.74 for the costs and expenses incurred before the domestic courts and an unspecified amount of compensation for those incurred before the Court. 102. The Government considered that the applicants had not submitted sufficient specification of the costs and expenses, as required by Rule 60 of the Rules of Court, as the measures performed, hours used for each measure or the cost for each measure had not been specified. In addition, the applicants had not submitted any details of the costs and expenses incurred before the Court.", "They left it to the Court's discretion to decide whether the details provided had been sufficient. The fact that the Article 6 complaint had not been communicated to the Government should also be taken into account. In any event, the Government found the applicants' claims excessive as to quantum and considered that the total amount of compensation for costs and expenses incurred before the domestic courts should not exceed EUR 2,000 (inclusive of value-added tax) in respect of the first applicant and EUR 5,000 (inclusive of value-added tax) in respect of the applicant company. The total amount of compensation for costs and expenses incurred before the Court should not exceed EUR 1,000 (inclusive of value-added tax) for all applicants. 103.", "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 documents in its possession and the above criteria, the Court rejects the first applicant's claim for costs and expenses in the domestic proceedings as well as the applicants' claim for costs and expenses before the Court for lack of substantiation. The Court considers it reasonable to award the applicant company the sum of EUR 8,000 (inclusive of value-added tax) for costs and expenses incurred in the domestic proceedings. C. Default interest 104. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Articles 7 and 10 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds that there has been no violation of Article 7 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 29,030.08 (twenty-nine thousand and thirty euros and eight 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 to it, 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 25 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy Registrar President" ]
[ "THIRD SECTION CASE OF VITO SANTE SANTORO v. ITALY (Application no. 36681/97) JUDGMENT STRASBOURG 1 July 2004 FINAL 01/10/2004 In the case of Vito Sante Santoro v. Italy, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI. Cabral Barreto,MrL. Caflisch,MrJ.", "Hedigan,MrsM. Tsatsa-Nikolovska,MrsH.S. Greve,MrV. Zagrebelsky, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 16 January 2003 and 10 June 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "36681/97) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Vito Sante Santoro (“the applicant”), on 22 May 1997. 2. The applicant was represented by Mr G. Negro, a lawyer practising in Brindisi. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and by Mr F. Crisafulli, co-Agent.", "3. The applicant alleged, in particular, that the preventive measure of special supervision that had been imposed on him had violated his right of freedom of movement and that he had been deprived of his right to vote in the parliamentary and regional council elections. 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 Third Section (Rule 52 § 1). 7. By a decision of 16 January 2003, the Chamber declared the application partly admissible[1]. 8.", "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 9. The applicant was born in 1957 and lives in Ostuni (province of Brindisi). A.", "The special supervision by the police 10. In an order of 24 March 1994, filed with the registry on 30 March 1994, the Brindisi District Court imposed a preventive measure on the applicant, who was placed under special police supervision for one year. 11. The Brindisi District Court found that numerous criminal complaints had been made against the applicant. In particular, it found that in 1991 and 1992 a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business.", "On 13 May 1992 a preventive measure in the form of a warning (avviso sociale) was imposed on the applicant for one year. On 13 June 1992 a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods; he was acquitted by a judgment of 2 July 1993. On 5 May 1993 the applicant was arrested with two others in connection with another complaint for receiving stolen goods which had been lodged against him. In the light of the foregoing, the District Court considered that there were reasonable grounds for believing that, in spite of his clean record, the applicant was a habitual offender and thus “socially dangerous”, within the meaning of section 1 of Law no. 1423/56 of 27 December 1956.", "It refused, however, to make a compulsory residence order (obbligo di soggiorno) against him. 12. The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 and served on the applicant on 3 May 1994. 13. The applicant appealed, but his appeal was dismissed by the Lecce Court of Appeal on 29 July 1994.", "The order became final on 24 September 1994 and was subsequently served on the Ostuni municipality on 27 September 1994. 14. On 25 July 1995 the Ostuni police drafted, in the applicant’s presence, a document setting out the obligations imposed on him (verbale di sottoposizione agli obblighi). 15. The applicant was required: (a) to look for a suitable job within two months from the date of service of the order; (b) not to change his place of residence; (c) not to leave his home without informing the authorities responsible for supervising him; (d) to live an honest life and not to arouse suspicion; (e) not to associate with persons who had a criminal record or who were subject to preventive or security measures; (f) not to return home later than 8 p.m. in summer and 6 p.m. in winter or to leave home before 7 a.m., unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him; (g) not to keep or carry weapons; (h) not to go to bars or attend public meetings; (i) to report to the relevant police station on Sundays between 9 a.m. and 12 noon; (j) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order.", "16. On 31 July 1995 the applicant applied to the Brindisi District Court for a declaration that the preventive measure had expired on 2 May 1995, that is, one year after the date on which the order of 24 March 1994 was served on him. 17. In an order of 7 October 1995, the Brindisi District Court found that, even if pursuant to section 11 of Law no. 1423/56 the special supervision period began on the day on which the person on whom the preventive measure was imposed was served with the relevant order, compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure.", "For there to be such an initial step, it was also necessary under section 7 of Law no. 1423/56 for the relevant order to be forwarded for enforcement to the competent police authority. The District Court observed that, under the Court of Cassation’s case-law, special supervision did not lapse at the end of the period for which it had been imposed, independently of when it was implemented. In the case before it, the initial step in the implementation of the measure had been taken on 25 July 1995, the day on which the Ostuni police had drafted the document setting out the obligations imposed on the applicant. Consequently, it held that the preventive measure had not ceased to apply.", "18. The applicant appealed to the Lecce Court of Appeal. He maintained that the preventive measure had automatically ceased to apply on 2 May 1995 or, at the latest, on 28 September 1995, which was one year after the date on which the order had been served on the Brindisi police and the Ostuni municipality. In any event, the applicant sought an order discharging the measure, arguing that there were no grounds for it to remain in force. 19.", "In a judgment of 29 April 1996, the Court of Appeal upheld the order of 7 October 1995, observing that the case fell outside those for which statute provided the automatic lapse of special supervision. It considered that the preventive measure could not automatically cease to apply on the date stated in the order of 24 March 1994 independently of when it was implemented. Consequently, it concluded that the starting-point for the application of the preventive measure was the day on which the first steps had been taken to implement it. In this case that had been 25 July 1995, when the police had drafted the document setting out the applicant’s obligations under the order. 20.", "The applicant appealed on points of law to the Court of Cassation. 21. In a judgment of 16 December 1996, which was filed with the registry on 6 February 1997, the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply on 2 May 1995. It observed that section 11 of Law no. 1423/56 expressly provided that the period of special supervision started to run on the day the person to be supervised was served with the relevant order.", "Consequently, contrary to the opinion of the Court of Appeal, it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect. It concluded that the period of special supervision had started to run on the day on which the relevant order was served on the applicant (3 May 1994). 22. In the meantime, on 20 September 1996 the Ostuni police had informed the Brindisi District Court that the order for special supervision of the applicant had ceased to apply on 24 July 1996. B.", "The disenfranchisement 23. As a result of the special supervision measure imposed on the applicant, the Ostuni Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no. 223 of 20 March 1967. 24. The applicant was subsequently prevented from taking part in the regional council (Consiglio Regionale) election of 23 April 1995.", "25. On 28 July 1995 the applicant’s name was restored to the electoral register. 26. In a certificate issued on 22 November 1995, however, the mayor of Ostuni stated that the applicant had been subject to a further year’s special supervision by a decision of the Brindisi police of 25 July 1995. On 15 December 1995 the mayor declared that the applicant would be struck off the electoral register for another year.", "27. On 12 April 1996 the Ostuni Municipal Electoral Committee refused the applicant’s request to be allowed to take part in the national parliamentary election on 21 April 1996. 28. The applicant lodged an appeal with the Lecce Court of Appeal in which he contended that the preventive measure had ceased to apply on 2 May 1995 and that, accordingly, there were no grounds for excluding him from the election. 29.", "In a judgment of 18 April 1996, the Lecce Court of Appeal dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented. II. RELEVANT DOMESTIC LAW A. Provisions concerning preventive measures 30. The power to impose preventive measures was introduced by Law no.", "1423 of 27 December 1956. Such measures are intended to prevent individuals who are considered “socially dangerous” from committing offences. The statute indicates three groups of socially dangerous persons: (a) anyone who, on the basis of factual evidence, must be regarded as a habitual offender; (b) anyone who, on account of his conduct or lifestyle and on the basis of factual evidence, must be regarded as habitually deriving his income from the proceeds of crime; and (c) anyone who, on account of his conduct and on the basis of factual evidence, must be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to society, security or public order. 31. Section 3 of Law no.", "1423/56 provides that persons who are socially dangerous may be placed under special police supervision. The competent court sits in camera and must give a reasoned decision after hearing the public prosecutor and the person concerned, who has the right to file memorials and to be represented by a lawyer. Both parties may lodge an appeal and/or an appeal on points of law, which have no suspensive effect. 32. When imposing a preventive measure, the court must fix its duration and specify the conditions with which the person concerned must comply.", "In accordance with paragraph 1 of section 11 of Law no. 1423/56, the special supervision period starts to run on the day on which its addressee is notified of the relevant order and automatically ends when the period of time fixed in the order has elapsed. B. Provisions on disenfranchisement 33. Article 2 of Presidential Decree no.", "223 of 20 March 1967 provides that, inter alia, persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised. 34. Article 32 § 1 (3) of that decree provides that in such cases the prefect (questore) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civic rights. The Municipal Electoral Committee shall then remove the name of the person concerned from the electoral register, even outside one of the usual periods for updating the lists. C. Article 117 of the Constitution 35.", "Article 117 of the Constitution confers legislative power on the regions. It sets out the competence of the regions, inter alia, for regional administrative planning, local policy, public health, education, local museums and libraries, town planning, tourism, traffic regulations, navigation, quarries and peat bogs, hunting, agriculture, forests and handicraft. Article 117 also states that the regions have legislative power in other matters established by constitutional laws. Regional laws are enacted by the regional councils (Article 121 § 2 of the Constitution). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 36. The applicant complained that he had been illegally kept under special police supervision after the expiry of the order of 24 March 1994 and that no compensation was available to him for the undue prolongation of the preventive measure. 37. In its decision on the admissibility of the application, the Court considered that this complaint should be examined under Article 2 of Protocol No.", "4, which reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3.", "No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 1. The parties’ submissions 38. The Government considered that the restrictions imposed on the applicant were in accordance with the law, the decision of the Lecce Court of Appeal being the result of an interpretation of the relevant domestic provisions in conformity with the Court of Cassation’s jurisprudence.", "They referred, in particular, to a judgment given by the Court of Cassation on 19 March 1980 in Catalano, confirmed by another judgment adopted by the First Division on 25 May 2000 (no. 3794). According to these decisions, the starting-point for the calculation of the duration of a preventive measure should not be the date on which notice of it was served, but the time when the measure actually started to be applied. 39. The Government submitted that it was the domestic courts’ role to solve problems of interpretation of national legislation.", "In the present case, the error made by the competent authorities was of a formal nature and did not entail a violation of the applicant’s rights. The latter could not therefore be considered a victim under the Convention. 40. The applicant observed that in the Italian legal system the judge should apply the law and not create it, the principle of strict legality in the criminal field preventing him from overstepping the bounds resulting from the wording of the relevant provisions. In any case, the starting-point of the special supervision could not depend on the discretion of the prefect or of the police, but should be fixed by the reasoned decisions of the competent judicial bodies.", "41. The applicant challenged the existence of the case-law supposedly followed by the Lecce Court of Appeal. In his view, the judgment of 1980 in Catalano constituted an isolated decision, concerning a preventive measure which had not been fully implemented because the individual in question had been authorised to move abroad. The judgment of 25 May 2000 dealt with the suspension of the preventive measure by reason of the detention of the person concerned in a prison. The applicant considered that the Court of Cassation’s judgment of 16 December 1996 quashing the decision of the Lecce Court of Appeal was not the result of a change in the case-law, but on the contrary a further statement of the correct interpretation of section 11 of Law no.", "1423/56. 2. The Court’s assessment 42. The Court first observes that the order imposing the special supervision by the police was served on the applicant on 3 May 1994 (see paragraph 12 above). However, it was only on 25 July 1995 that the Ostuni police drafted a document setting out the obligations imposed on the applicant (see paragraphs 14-15 above).", "43. The Court finds it hard to understand why there should have been a delay of over one year and two months in drafting the actual obligations arising from a decision which was immediately enforceable and concerned a fundamental right, namely the applicant’s freedom to come and go as he pleased (see, mutatis mutandis, Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 19, § 39). 44. Moreover, it is to be noted that in its judgment of 16 December 1996 the Court of Cassation, making use of its uncontested right to interpret the relevant provisions of domestic law, declared that the special supervision imposed on the applicant had ceased to apply on 2 May 1995 (see paragraph 21 above).", "45. It is not the role of the Court to determine whether this interpretation was correct or whether it was foreseeable in view of the relevant domestic precedents (see, mutatis mutandis, Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, p. 543, § 41). For the purposes of the present case, it is sufficient to observe that the Court of Cassation recognised that the applicant had been subject, between 2 May 1995 and 24 July 1996, to a measure affecting his liberty of movement which was time-barred. However, the Court of Cassation did not provide any redress for the damage suffered by the applicant as a consequence of the unlawful prolongation of the special supervision. Moreover, it has not been suggested by the Government that the applicant could have made use of any other domestic remedy to obtain compensation.", "46. In the light of the above, the Court concludes that between 2 May 1995 and 24 July 1996 the interference with the applicant’s liberty of movement was neither “in accordance with law” nor necessary. There has accordingly been a violation of Article 2 of Protocol No. 4. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 47. The applicant complained that he was disenfranchised for a longer period than was lawful and that, as a result, he had been prevented from voting in the regional council election of 23 April 1995 and the parliamentary election of 21 April 1996. He relied on Article 3 of Protocol No. 1, which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 1.", "The parties’ submissions 48. The applicant submitted that his disenfranchisement after 2 May 1995 was unlawful, as it was ordered on the basis of a special police supervision measure which had already expired. 49. In the Government’s opinion, the disenfranchisement was lawful in so far as it had to be regarded as the consequence of a lawfully imposed special supervision measure. 2.", "The Court’s assessment (a) Applicability of Article 3 of Protocol No. 1 50. The Court should first ascertain whether Article 3 of Protocol No. 1 applies to the elections complained of. In this respect, it observes that Article 3 of Protocol No.", "1 guarantees the “choice of the legislature” and that the word “legislature” does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question (see Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I). In Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, §53; see also Matthews v. the United Kingdom [GC], no. 24833/94, §§ 40-54, ECHR 1999-I, on the application of Article 3 of Protocol No.", "1 to the European Parliament; and X v. Austria, no. 7008/75, Commission decision of 12 July 1976, Decisions and Reports (DR) 6, pp. 120-21, on the application of Article 3 of Protocol No. 1 to regional parliaments (Landtage) in Austria). 51.", "In the present case, there is no doubt that the national parliament is a legislative body within the meaning of Article 3 of Protocol No. 1. As regards the regional councils, the Commission left open the question whether these organs might be deemed to be part of the legislature in Italy (see Luksch v. Italy, no. 27614/95, Commission decision of 21 May 1997, DR 89-B, pp. 76-78).", "52. The Court notes that, under Articles 117 and 121 § 2 of the Constitution, the regional councils are competent to enact, within the territory of the region to which they belong, laws in a number of pivotal areas in a democratic society, such as administrative planning, local policy, public health, education, town planning and agriculture (see paragraph 35 above). The Court therefore considers that the Constitution vested competence and powers in the regional councils that are wide enough to make them a constituent part of the legislature in addition to the parliament. This has not been contested by the Government. 53.", "It follows that Article 3 of Protocol No. 1 is applicable both to the parliamentary election of 21 April 1996 and the regional election of 23 April 1995. (b) Merits of the applicant’s complaint 54. The Court points out that implicit in Article 3 of Protocol No. 1 are the subjective rights to vote and to stand for election.", "Although those rights are important, they are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders, the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of this provision of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see the following judgments: Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52; Gitonas and Others v. Greece, 1 July 1997, Reports 1997-IV, p. 1233, § 39; Ahmed and Others v. the United Kingdom, 2 September 1998, Reports 1998-VI, p. 2384, § 75; Labita v. Italy [GC], no.", "26772/95, § 201, ECHR 2000-IV; and Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 31, ECHR 2002-IV). 55. The Court observes that persons who are subject to special police supervision are automatically struck off the electoral register (see paragraph 33 above).", "The prefect notifies the municipality accordingly and the Municipal Electoral Committee removes the name of the person concerned from the electoral register (see paragraph 34 above). 56. In the present case, the order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 (see paragraph 12 above). However, it was only on 10 January 1995 that the Ostuni Municipal Electoral Committee decided to strike the applicant off the electoral register (see paragraph 23 above). 57.", "The Court accepts that some delay in accomplishing the administrative tasks relating to the enforcement of a domestic court’s decision is often inevitable; however, it must be kept to a minimum (see, mutatis mutandis, Giulia Manzoni v. Italy, judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25). 58. In the present case, more than nine months elapsed between the date on which the order imposing the preventive measure was forwarded to the prefect and the date on which the applicant was disenfranchised. In the Court’s view, such a delay is excessive. No explanation for it has been provided by the Government.", "59. Moreover, the delay in issue adversely affected the applicant’s ability to vote both in the parliamentary and regional elections. In fact, had the disenfranchisement been applied in due time and for the statutory period of one year, this measure would have ceased before 23 April 1995, the date of the regional election and long before 21 April 1996, the date of the parliamentary elections. In any case, as far as the latter election is concerned, the Court reiterates its finding that the prolongation of the special police supervision after 2 May 1995 was neither in accordance with law nor necessary (see paragraph 46 above). The same applies to a measure which, like the disenfranchisement, was merely an ancillary and automatic consequence of the police supervision.", "60. There has therefore been a violation of Article 3 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 62. The applicant alleged that the way in which his liberty of movement had been violated caused him great distress, reducing his social contacts and his ability to work. As a result, the company he had owned and directed since 1985 was unable to make any profit after 1995. He had also been prevented from exercising his normal civic rights and had not been eligible for the assignment of public works.", "In view of the above, the applicant claimed a lump sum of 50,000 euros (EUR) for both non-pecuniary and pecuniary damage. 63. The Government observed that the interference complained of had lasted from 2 May 1995 until 24 July 1996 and that in 1995 the activity of the applicant’s company had not been substantially affected. As far as 1996 was concerned, the applicant had failed to produce any evidence that the alleged loss of profit was a consequence of the preventive measure imposed on him, which had not, as such, prevented him from working. Moreover, the applicant had not shown that he might have had the possibility of obtaining a public works contract.", "As to the non-pecuniary damage, the Government considered that the finding of a violation constituted in itself sufficient just satisfaction. 64. The Court observes that the obligations imposed on the applicant by the special supervision measure (see paragraph 15 above) did not prevent him from pursuing a professional activity. Moreover, the applicant has failed to show that he had had the possibility of obtaining a public works contract. The Court therefore concludes that there is no causal link between the violations of the Convention and the alleged pecuniary damage, and rejects the applicant’s claims in this respect.", "65. However, the Court finds that the applicant suffered damage of a non-pecuniary nature. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41 of the Convention, it decides to award him EUR 2,000. B. Costs and expenses 66.", "The applicant claimed EUR 9,433.71 for the costs he had incurred at the domestic level and EUR 5,507.06 for the costs and expenses pertaining to the proceedings before the Convention institutions. 67. The Government left the matter to the Court’s discretion. 68. The Court observes that, before lodging his application in Strasbourg, the applicant had exhausted the available domestic remedies regarding the question of the violation of his freedom of movement and his right to vote in the elections.", "The Court therefore accepts that the applicant incurred some expenses in order to obtain redress both in the domestic legal order and at the European level (see, mutatis mutandis, Rojas Morales v. Italy, no. 39676/98, § 42, 16 November 2000). However, it considers the amounts claimed to be excessive. In this connection, the Court observes that at the admissibility stage one of the applicant’s complaints was declared inadmissible. It is therefore appropriate to reimburse only in part the costs and expenses alleged by the applicant (see, mutatis mutandis, Sakkopoulos v. Greece, no.", "61828/00, § 59, 15 January 2004). Having regard to the elements at its disposal and on the basis of an equitable assessment, the Court awards the applicant EUR 3,000 for the costs incurred before the Italian authorities and EUR 2,500 for the costs relating to the European proceedings, and therefore the global sum of EUR 5,500. C. Default interest 69. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 2 of Protocol No. 4; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 by reason of the applicant’s inability to vote in the parliamentary election of 21 April 1996 and in the regional council election of 23 April 1995; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage; (ii) EUR 5,500 (five 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 1 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident [1] . Note by the Registry. Extracts of the decision are reported in ECHR 2003-I." ]
[ "SECOND SECTION CASE OF KAYA AND GÜL v. TURKEY (Applications nos. 47988/09 and 47989/09) JUDGMENT STRASBOURG 24 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Kaya and Gül 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 3 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 47988/09 and 47989/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Yusuf Kaya and Mr Mehmet Sabri Gül (“the applicants”), on 25 August 2009.", "2. The applicants were represented by Ms. S. C. Erkat, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. On 26 April 2010 the applications were communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1961 and 1967 respectively and live in Mersin and Diyarbakır. 5. The applicants were civil servants for tax offices attached to the Ministry of Finance in Mersin and Diyarbakır.", "At the material time they were members of the local branch of the trade union Büro Emekçileri, which is affiliated to Trades Union Confederation of Public Employees (Kamu Emekçileri Sendikaları Konfederasyonu-“KESK”). 6. In March and April 2009, the applicants were informed of the disciplinary investigations that were initiated against them for having participated in a statement to the press organised by the trade union of which they were members and were invited to send their defence submissions. 7. Subsequently, the disciplinary sanctions of warning and reprimand were imposed on the applicants for their participation in the aforementioned trade union activities under Section 125 of the Law no.", "657 on Civil Servants. 8. The applicants objected to these decisions and requested their annulment. 9. In May 2009 the Disciplinary Board of the tax offices dismissed the applicants’ objections considering that the contested decisions were in accordance with law and there were no grounds for annulment.", "II. RELEVANT DOMESTIC LAW 10. A full description of relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-17, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-21, 24 March 2015).", "THE LAW I. JOINDER OF THE APPLICATIONS 11. 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 11 OF THE CONVENTION 12. The applicants complained that the disciplinary sanctions of warning and reprimand that were imposed on them for their participation in trade union activities, had infringed their rights under the Convention.", "In this regard, they relied on Articles 10 and 11 of the Convention. 13. The Court considers that the applicants’ complaints fall to be examined under Article 11 of the Convention alone. Article 11 of the Convention reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 14. The Government contested the applicants’ arguments. 15.", "The Court notes that in the case of Karaçay v. Turkey (no. 6615/03, 27 March 2007), which raised issues similar to those in the present case, it observed that the sanction complained of, although very light, had been such as to dissuade trade union members from legitimate participation in strikes or other trade union actions to defend the interests of their members. Accordingly it found that the warning given to the applicant had not been necessary in a democratic society and there had been a breach of applicant’s right to freedom to demonstrate (ibid § 37; see mutadis mutandis Kaya and Seyhan v. Turkey, no. 30946/04, § 30, 15 September 2009; and Şişman and Others v. Turkey, no. 1305/05, § 34, 27 September 2011).", "16. 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 cases. 17. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 11 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 18. The applicants complained that no remedy had been available to them under the domestic law in force at relevant time, by which to challenge the disciplinary sanctions that were imposed on them. They relied on Articles 6 and 13 of the Convention. The Court notes that this part of the application should be examined from the standpoint of Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 19. The Government contested that argument.", "20. The Court observes that the legislation in force at the relevant time precluded any application to the administrative courts for the purpose of challenging the lawfulness of the disciplinary sanctions of warning and reprimand imposed pursuant to Section 125 of the Law no. 657. 21. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of lack of an effective remedy under Turkish law, whereby the applicants could have challenged the disciplinary sanctions of warning and reprimand imposed on them (Karaçay, cited above, § 44; Kaya and Seyhan, cited above, § 41; and İsmail Sezer v. Turkey, no.", "36807/07, § 66, 24 March 2015). It finds no reason to depart from that conclusion in the present cases. 22. Having regard to its case-law on the subject, the Court considers that there has been a violation of Article 13 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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. Decides to join the applications; 2.", "Declares the applications admissible; 3. Holds that there has been a violation of Article 11 of the Convention; 4. Holds that there has been a violation of Article 13 of the Convention. Done in English, and notified in writing on 24 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıJulia LaffranqueDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF MITRYUKOV v. RUSSIA (Application no. 57927/16 and 2 others - see appended list) JUDGMENT STRASBOURG 8 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Mitryukov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 18 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The applicant, Mr Aleksey Nikolayevich Mitryukov, is a Russian national born on 6 May 1979. He submitted the three applications listed in the appended table and complained of the inadequate conditions of his detention in two detention facilities where he had been detained consecutively during various periods. He also raised complaints under Article 13 of the Convention.", "The relevant details of the applications are set out in the appended table. THE LAW I. JOINDER OF THE APPLICATIONS 4. 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 ARTICLES 3 AND 13 OF THE CONVENTION 5.", "The applicant complained principally of the inadequate conditions of his detention in the two detention facilities where he had been detained during various consecutive periods. He also argued that he had not had an effective domestic remedy to complain about the inadequate conditions of detention. The applicant relied on 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. Application no. 8680/17 6.", "The Government submitted a declaration with a view to resolving the issues raised by the applicant under Articles 3 and 13 of the Convention in application no. 8680/17. They acknowledged that the applicant had been detained in poor conditions and that he had not had an effective domestic remedy to complain about it. They offered to pay 1,548 euros (EUR) to the applicant and invited the Court to strike application no. 8680/16 out of the list of cases in accordance with Article 37 § 1 (c) of the Convention.", "The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. 7. The applicant informed the Court that he agreed to the terms of the declaration.", "The Court finds that, following the applicant’s express agreement to the terms of the declaration made by the Government, the case should be treated as a friendly settlement between the parties. It therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify the continued examination of the present application. In view of the above, it is appropriate to strike application no. 8680/17 out of the list.", "B. Application no. 57927/16 8. As regards application no. 57927/16, in which the applicant complained of numerous instances of detention in a pre-trial detention facility in poor conditions (for more details see appended table below), the Court reiterates that it adopts conclusions after evaluating all the evidence, including such inferences as may flow from the facts and the parties’ submissions.", "According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012). In cases regarding conditions of detention the burden of proof may, under certain circumstances, be shifted to the authorities (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; see also Mathew v. the Netherlands, no. 24919/03, § 156, ECHR 2005 IX).", "Nevertheless, an applicant must provide an elaborate and consistent account of the conditions of his or her detention, mentioning the specific elements which would enable the Court to determine that the complaint is not manifestly ill‑founded or inadmissible on any other grounds. 9. In the present case, the Government contended that during the short periods of the applicant’s stay in that facility he had been afforded adequate personal space and had had individual sleeping places. Moreover, he had been allowed daily outdoor exercise and had had proper access to hygienic facilities. The applicant argued that he had not had sufficient personal space.", "10. The Court does not need to settle the differences in the parties’ submissions. Even assuming that the applicant disposed of less than 3 sq. m of personal space, the Court finds that the Government have rebutted the strong presumption of a violation of Article 3. The non-consecutive periods can be regarded as short and minor reductions in personal space, during which sufficient freedom of movement and out-of-cell activities were available to the applicant.", "Moreover, viewed generally, he was detained in an appropriate detention facility (see, for similar reasoning, Muršić v. Croatia [GC], no. 7334/13, §§ 169-171, ECHR 2016). 11. The Court therefore considers that it cannot be established that the conditions of the applicant’s detention as described in application no. 57927/16, even if not completely adequate as regards personal space, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention.", "12. In view of the above, the Court finds that the complaint about the conditions of detention as described in the application (see appended table below) is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 13. Turning to Article 13 complaint raised by the applicant in the same application (no. 57927/16), the Court reiterates that Article 13 of the Convention only applies where an individual has an “arguable claim” to be the victim of a violation of a Convention right.", "In view of its findings above with regard to the complaint about the conditions of detention as described in that application, the Court considers that the applicant has no “arguable claim” and that the complaint under Article 13 insofar as it relates to the complaints raised in application no. 57927/16 should also be declared manifestly ill-founded and rejected under Article 35 §§ 3 and 4 of the Convention. C. Application no. 76910/16 1. Article 3 of the Convention 14.", "Turning to application no. 76910/16, the Court notes that the applicant was kept in a post-conviction detention facility, a correctional colony, in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, §§ 139‑65, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 15. In the leading case of Sergey Babushkin v. Russia, no.", "5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 16. 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 the complaint raised under Article 3 of the Convention regarding conditions of the applicant’s detention in the correctional colony. Having regard to its case-law on the subject, the Court considers that in the instant case his conditions of detention were inadequate. 17.", "That complaint about detention conditions in application no. 76910/16 is therefore admissible and discloses a breach of Article 3 of the Convention. 2. Article 13 of the Convention 18. The applicant also argued under Article 13 of the Convention that he did not have an effective remedy in Russia to complain about the inadequate conditions of his detention in the correctional colony.", "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 the Convention in the light of its findings in Sergey Babushkin, cited above, §§ 38-45. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 20. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the applicant EUR 5,000 in just satisfaction in relation to his application no. 76910/16.", "21. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Decides to strike application no.", "8680/17 out of its list of cases in accordance with Article 39 of the Convention; 3. Declares application no. 76910/16 admissible and application no. 57927/17 inadmissible; 4. Holds that application no.", "76910/16 discloses a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 5. Holds that application no. 76910/16 discloses a breach of Article 13 of the Convention concerning the lack of an effective domestic remedy; 6. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros) in just satisfaction relating to application no. 76910/16 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 8 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no. Date of introduction Applicant name Date of birth Facility Start and end date Duration Sq. m. per inmate Specific grievances 57927/16 01/09/2016 Aleksey Nikolayevich Mitryukov 06/05/1979 IZ-1, Nizhniy Novgorod Region Between 18/01/2016 and 19/02/2017, numerous short periods of detention (save for the period covered by application no.", "8680/17) 3 m² no or restricted access to shower, infestation of cell with insects/rodents, mouldy or dirty cell 76910/16 23/11/2016 Aleksey Nikolayevich Mitryukov 06/05/1979 IK-11 Nizhniy Novgorod 30/03/2015 pending More than 2 years during periods, excluding the applicant’s detention in IZ-1 in Nizhniy Novgorod 130 inmate(s) 2 m² passive smoking, lack of or inadequate hygienic facilities, poor quality of food, overcrowding 8680/17 21/12/2016 Aleksey Nikolayevich Mitryukov 06/05/1979 IZ-1 Nizhniy Novgorod 19/09/2016 to 27/09/2016 9 day(s) IZ-1 Nizhniy Novgorod 24/10/2016 to 19/12/2016 1 month(s) and 26 day(s) 2.4 m² 2.4 m² lack of fresh air, passive smoking, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, poor quality of food lack of fresh air, passive smoking, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, poor quality of food" ]
[ "SECOND SECTION CASE OF KURŞUN v. TURKEY (Application no. 22677/10) JUDGMENT STRASBOURG 30 October 2018 FINAL 30/01/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurşun v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Julia Laffranque,Ledi Bianku,Işıl Karakaş,Valeriu Griţco,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "22677/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mazhar Kurşun (“the applicant”), on 30 March 2010. 2. The applicant was represented by Mr A. Çakan and Mr A.Ş. Deniz, lawyers practising in Batman. The Turkish Government (“the Government”) were represented by their Agent.", "3. The applicant alleged, in particular, that his right to a fair trial under Article 6 § 1 of the Convention had been violated on account of the erroneous interpretation of a time-limit rule by the civil courts. He also alleged under Article 1 of Protocol No. 1 that the State authorities had not taken the necessary preventive and remedial measures to protect his right to property. 4.", "On 12 December 2016 the application was communicated to the Government. 5. On 28 February 2018 further information was requested from the parties, in accordance with Rule 49 § 3 (a) of the Rules of Court, on the interpretation of the relevant time-limit rule set out in Article 60 § 1 of the former Code of Obligations by the Court of Cassation. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1963 and lives in Batman. A. Background to the case 7. The applicant is the owner of a property in the Toptancılar Sitesi area of Batman, which has mainly been used as an industrial park since 2002. Toptancılar Sitesi is located in close proximity to the Tüpraş Batman Oil Refinery (“Tüpraş Refinery” or “Tüpraş”), which was a State-owned enterprise until its privatisation in 2005, and to an oil storage and supply facility run by the Ministry of Defence (Milli Savunma Bakanlığı Akaryakıt İkmal ve NATO POL Tesisleri – hereinafter “ANT”).", "It appears that there are also a number of private petrol stations in the vicinity. 8. On 3 May 2004 a large underground explosion took place in Toptancılar Sitesi, which resulted in three deaths and many injuries. The explosion and ensuing fire also damaged many properties in the vicinity, including that of the applicant. 9.", "A number of administrative commissions were established in the aftermath of the incident in order to determine the cause of the explosion and the damage caused by it, as well as to secure the area of the explosion. Further information regarding the work undertaken by those commissions, and other entities, is outlined below. 1. Fact-finding commission 10. The fact-finding commission established by the Batman governor’s office consisted of, among others, the governor, deputy governor and mayor of Batman, the director of the Batman Security Directorate, the director of the local office of the Ministry of Public Works and Settlement, the directors of the Tüpraş Refinery and the Turkish Petroleum Corporation (Türkiye Petrolleri Anonim Ortaklığı – hereinafter “TPAO”) and the presidents of the local chambers of architects, mechanical engineers and geological engineers.", "It appears that the preliminary investigations led by the fact‑finding commission, with the assistance of experts, established that the explosion had been caused by an underground oil leak, although the source of the leak could not be identified. 11. On 27 May 2004 the fact-finding commission decided that some of the businesses in Toptancılar Sitesi should be evacuated in view of the risk of further explosions. It is not clear from the information in the case file whether the applicant’s property was amongst those evacuated at the relevant time. 12.", "There is no further information in the case file as to any other action taken by the fact-finding commission. 2. Damage assessment commission 13. The Batman governor’s office established a damage assessment commission, with a view to ascertaining the damage sustained in the area as a result of the explosion. Following the inspections performed, the commission established six heavily damaged, ten moderately damaged and thirty-one slightly damaged businesses, and two slightly damaged residences in the area.", "The owners of those properties were declared “disaster victims”. The applicant’s property was not amongst those identified as damaged by the commission. The owners of the damaged properties were provided with some rent allowance and other assistance. 3. Commission for the Discharge of Chemicals of an Unknown Origin 14.", "The Commission for the Discharge of Chemicals of an Unknown Origin measured the levels of underground gas in the area and, where high levels of gas were detected, arranged for it to be discharged through pipes. 4. Technical commission 15. A technical commission was set up on an unspecified date to determine the source and extent of the oil leak, and to make proposals for cleaning up the area affected. The commission consisted of representatives from the Batman municipality, the Tüpraş Refinery and academia, as well as from the local chambers of architects and engineers of various disciplines.", "In its report dated 14 June 2004 the commission stated that the explosion had occurred as a result of the compression of petroleum products that had leaked into the underground water. 16. Under the supervision of the commission, a number of shafts were drilled to extract the leaked oil. However, the commission stated in the aforementioned report that despite its continuous efforts, it had not made any progress in cleaning up the leak, given the magnitude of the problem, and its lack of sufficient means and expertise. It had however discovered that the contamination was concentrated outside the walls surrounding the Tüpraş Refinery and that no leakage had been observed around the ANT pipeline.", "17. The members of the technical commission, with the exception of the Tüpraş representative, also stated in the same report that while they had not been able to establish the source of the leak conclusively, their investigation suggested that the leak may have originated from the Tüpraş Refinery. It is not clear whether and when this report was made public. 5. The Prime Minister’s Office Commission 18.", "Upon the instruction of the Prime Minister’s Office, which had deemed the aforementioned report of the technical commission to be insufficient, another commission was established under the coordination of the Ministry of Energy and Natural Resources for the purposes of ascertaining the cause of the explosion. The commission was made up of, among others, academics, engineers and representatives from various ministries, the Tüpraş Refinery and TPAO. 19. According to its interim report dated 11 October 2004, the studies it had carried out in Toptancılar Sitesi showed that the explosion of 3 May 2004 had been the result of an environmental pollution phenomenon that was much more complex than initially estimated. The management of this unprecedented environmental crisis required the utmost care, expertise, information and interpretational skills.", "The pollutant at issue was a mixture of crude oil and various petroleum products and, according to its estimations, there were between 500 and 2,000 tonnes of such material above groundwater. Technical limitations prevented the determination of the source of the leak with absolute certainty. However, the interpretation of the available data suggested that pollution of such great magnitude could only have been caused over a long period by a facility with a high capacity of petroleum refining and storage in the vicinity, which pointed to the Tüpraş Refinery (a conclusion which was challenged by Tüpraş and TPAO representatives). The report also stressed, however, the absence of conclusive evidence to back up this assumption. It added that once responsibility for the leak was determined with certainty by the national courts, all claims for damages could be directed against the party responsible.", "20. In the same report, the commission recommended the involvement of the State Water Board (Devlet Su İşleri – “DSİ”) in the operation carried out in the area to establish the source of the leak. It also recommended the closure of the Toptancılar Sitesi area to housing and commercial activity until the underground oil leak was cleaned by professional experts, given the risk of further explosions and fire posed by the leak. It is not clear whether and when this report was made public. 21.", "In accordance with the proposal in the above interim report, on 17 August 2005 the Local Environment Board of the Batman governor’s office decided that no business or occupation permits should be granted in the area designated as the “red zone”, which consisted of an area of 200 x 300 metres where the contamination was at its highest, until the underground clean-up operation in the area was completed. 6. High-level commission 22. Following receipt of the interim report mentioned above, the Prime Minister’s Office instructed the establishment of a high-level commission to take, or recommend, more concrete steps to tackle the environmental disaster at issue and determine its causes. There is no information in the case file as regards its composition.", "23. In January 2005 the commission invited the Tüpraş Refinery and ANT to carry out tests on their pipelines to determine whether the oil leak at issue had originated from them and, if so, to take the necessary precautions. It appears from the information in the case file that neither Tüpraş nor ANT assumed responsibility for the leak. 24. In January 2005 the high-level commission also took some decisions regarding the underground clean-up operation that had to be undertaken in the contaminated area.", "Accordingly, it invited the Batman governor’s office, which was tasked with coordinating the decontamination operation, to issue a call for tenders for the clean-up operation. There is, however, no further information in the case file as to whether the Batman governor’s office initiated the tender process or took any other steps to get the clean-up operation underway. 7. Studies conducted by other entities 25. According to a report dated 12 May 2004 prepared by experts from Tüpraş, pressure tests conducted on the ANT pipeline suggested the possibility of a leak in that pipeline.", "They referred in this connection to some reports which indicated that the ANT pipeline had been damaged during excavation work carried out in September 2002. The experts further noted that water wells drilled along the ANT pipeline in previous years had revealed the presence of petrol in the underground water. Wells drilled in the vicinity of Tüpraş petrol tanks after the explosion to disclose any leaks originating from those tanks on the other hand had not yielded any results. 26. It was also noted in the same report that before its reconstruction as an industrial park, the Toptancılar Sitesi area had been used for the trade and storage of petroleum products, as well as for the repair of tankers, which may have played a role in the contamination of the area.", "27. On 17 May 2004 Tüpraş issued a press release mainly recapitulating the claims made in the above report. It was indicated in the press release that although no leaks had been detected around its petrol tanks, a couple of wells drilled elsewhere on the refinery grounds had revealed the existence of a mixture of water and oil flowing towards the refinery from an outside source. It was also stressed that the levels of oil in the tanks were monitored electronically and that, therefore, any leaks of such substantial amounts would not have gone unnoticed. 28.", "In February 2005 DSİ submitted to the Batman governor’s office a report which found that the oil leak had heavily contaminated an area of 1 sq. km around the Toptancılar Sitesi area. It was estimated that the leak had been ongoing for a very long time and that it involved some four to six thousand tonnes of phenol. 29. According to a report prepared by the petrol analysis laboratory of the Middle East Technical University (Ortadoğu Teknik Üniversitesi – hereinafter “ODTÜ”) on 15 October 2004, the product that had caused the explosion was a refined petroleum product that did not exist in nature as such and, therefore, it must have originated from another source.", "It was not, however, possible to speculate that the petroleum had leaked from the Tüpraş Refinery. 30. In a report issued on 16 June 2005, experts from the Dokuz Eylül University in İzmir stated, inter alia, that the oil leak at issue had, in all likelihood, emanated from Tüpraş. They added that the difficulties faced in identifying the source or sources of the leak probably resulted from technical limitations. 8.", "Current situation 31. According to information obtained from the Municipality of Batman on 13 September 2017, the restrictions on business and occupation permits imposed by the Local Environment Board of the Batman governor’s office on 17 August 2005 in the so-called “red zone” (see paragraph 21 above) were still in force, as no progress had been made in cleaning up the underground oil leak. B. Criminal proceedings initiated against Tüpraş executives 32. Soon after the explosion, the Batman public prosecutor’s office initiated an investigation into the incident.", "33. On 31 December 2004 it filed a bill of indictment with the Batman Assize Court against a number of serving Tüpraş executives in connection with the explosion, accusing them under Article 383 § 2 of the former Turkish Criminal Code (Law no. 765) of causing unintentionally (by carelessness, negligence or inexperience) an explosion that resulted in death, injury and damage. The public prosecutor relied as evidence on the commission reports mentioned in paragraphs 10 to 24 above. 34.", "Sixty-four people, including the relatives of the victims who had lost their lives as a result of the explosion, as well as others who had sustained bodily or financial harm, joined the criminal proceedings as civil parties (müdahil). The applicant was not amongst them. 35. At the first hearing held on 28 January 2005, a representative of the victims claimed that even if the oil leak which had caused the explosion had originated from the ANT pipeline, Tüpraş, as the supplier of the oil into that pipeline, remained responsible for the explosion. They nevertheless requested the judicial authorities also to prosecute the relevant officials from the ANT who were in charge of the oil pipeline.", "The Batman Assize Court decided that the lawyer’s request concerning the ANT officials would be taken into consideration on receipt of expert reports on the source of the leak. 36. The Tüpraş executives mainly made the following arguments in their defence statements. (i) There were several oil pipelines, oil storage facilities and petrol stations in the area apart from the Tüpraş Refinery, the largest being the ANT facilities. The oil pipeline between ANT and Tüpraş, which had been used since 1972 to transfer F-46 military oil, had been inoperative since 1992, and a report prepared in 2002 attested that the pipeline had been empty at the time.", "However, the studies conducted on the pipeline after the explosion showed not only that there had been F-57 military oil in the pipeline, which had not been supplied by Tüpraş, but also that the pipeline had been damaged. (ii) According to its modus operandi, the ownership of both oil pipelines and the product supplied by Tüpraş belonged to the purchaser, and Tüpraş was not accountable for any damage or loss arising from a damaged pipeline. (iii) The wells drilled around the Tüpraş storage tanks had not revealed any oil leaks, which ruled out the possibility that the leak had originated from the refinery. (iv) The petroleum extracted from the various wells drilled in Toptancılar Sitesi had been analysed in the ODTÜ laboratory, and the results of the analysis showed that the sample product was not amongst those produced at the Tüpraş Batman Refinery. (v) Petroleum production consisted of only 5.95 % of the total production of the Tüpraş Refinery, and the remaining capacity was mainly devoted to the production of diesel fuel, asphalt, fuel-oil, solvents, residual oil and naphtha.", "In these circumstances, it was illogical to claim that the leak allegedly originating from the Tüpraş Refinery consisted only of the 5.95 % of its production, and that none of the remaining products, which made up the bulk of its production, had leaked. (vi) All product lines at the Tüpraş Refinery were above ground and consistently monitored. 37. The victims contested the defendants’ claim that the 2002 report concerning the ANT pipeline indicated that the pipeline had been empty. They also claimed that the analysis conducted at the ODTÜ laboratory was not decisive, as the laboratory had checked the samples obtained from the wells only against the current products of the Tüpraş Refinery.", "That analysis did not necessarily take into account the changes over time in the refinery’s production or the changes sustained by the products underground, considering that the leak had been ongoing for a long time. 38. On 31 July 2006, at the request of the Batman Assize Court, three professors from ODTÜ submitted an expert report on the source of the leak. Relying on all the information in the case file, including the commission reports noted in paragraphs 10 to 24 above, the experts made the following findings. (i) The studies carried out so far were inadequate to determine the source of the leak.", "For instance, although wells had been drilled outside the surrounding walls of the Tüpraş Refinery, which had revealed a significant amount of petroleum above groundwater, no drilling had been carried out on the other side of the walls. Without drilling wells in the appropriate key locations, it would not be possible to determine whether the leak had originated from a damaged pipeline or from the refinery. (ii) Various construction works and excavations carried out in the Toptancılar Sitesi area over the years had revealed the presence of petroleum under the ground long before the explosion. Therefore, the fact that there was an oil leak had been known for many years, including, most probably, by the State authorities, although it was not possible to pinpoint when the leak had started. (iii) The suspected corporations should normally have the technical means and manpower to detect any leaks originating from their facilities and take the necessary precautions.", "However, where leaks arose from breaches of pipelines or other equipment by malicious individuals for the purposes of theft, then these institutions could not be expected to uncover such incidents by their own efforts alone. Since the leak in question involved a highly valuable economic commodity, it seemed highly improbable that the institutions would not take any action to stop such a leak after taking notice of it. 39. On 7 November 2006 three other experts, all of whom were engineers who worked as work safety inspectors, issued a second report. They noted in the report that the studies undertaken thus far had not been able to reveal the source or sources of the leak.", "The view that the Tüpraş Refinery was responsible for the incident had not been based on sufficient evidence. Hard evidence would be required to impute responsibility to persons or corporations and no conclusions could be reached on the basis of mere presumptions. 40. On 1 May 2008 the Batman Assize Court delivered its judgment on the case. It held that while its proximity to the site of the explosion suggested that Tüpraş was responsible for the explosion, it was not possible to determine whether any of the individual suspects should bear liability for it, particularly given that the leak had been ongoing for a considerable amount of time and that the suspects would surely have taken action had they been aware of the leak.", "The Assize Court accordingly acquitted the Tüpraş executives. 41. On 17 January 2012 the Court of Cassation quashed the judgment of the first-instance court and discontinued the proceedings as prosecution of the offence in question had become time-barred. C. Compensation proceedings brought by other property owners 42. On different dates in 2004 a number of property owners in Toptancılar Sitesi brought compensation proceedings against both the Tüpraş Refinery and ANT before the Batman Civil Court of First Instance (“the Batman Civil Court”) in respect of the damage they had sustained as a result of the explosion in question.", "In the course of one of those sets of proceedings (case no. 2004/963 E.), the Batman Civil Court ordered an expert report from three university professors to determine the source of the leak. 43. On 3 March 2006 the experts submitted their report to the Batman Civil Court. The following findings were made in the report: (i) the product that had leaked underground was gasoline; (ii) it was highly likely that the contamination had been caused by an underground accumulation of gasoline that had leaked from one or more sources over a long period; (iii) given the location and movement of the underground contamination slick and the ground water flow direction, the source of the leak must have been in the south, where the Tüpraş facilities were located; they stated that any leak originating from the ANT pipeline would have generated a contamination slick in a northwesterly/northerly direction alongside the pipeline, which had not been the case; this left the Tüpraş Refinery as the only plausible source of the leak.", "(iv) In addition to their legal responsibility arising from the failure to detect and prevent the leak in a timely manner, the State authorities were responsible on account of their negligence in authorising the establishment of residences and businesses in such close proximity to the refinery despite the apparent dangers it posed. 44. The Batman Civil Court admitted that report into another case file concerning the same incident (case no. 2004/966 E.) and, relying on the findings in that report, on 21 July 2006 it decided that the Tüpraş Refinery was solely responsible for the leak. It dismissed the claims against ANT.", "45. The judgment of the Batman Civil Court, which was the first occasion on which the Tüpraş Refinery was publicly confirmed as the source of the leak by a court of law, was upheld by the Court of Cassation on 30 January 2007. A request made by Tüpraş for rectification of that decision was rejected on 18 June 2007. D. Compensation proceedings brought by the applicant 46. On 16 November 2006 the applicant brought an action for compensation against Tüpraş before the Batman Civil Court.", "He requested a total of 10,000 Turkish liras (TRY) for the depreciation of the value of his property after the explosion and for his loss of rental income for the following eighteen months, reserving his right to increase those claims. The applicant argued in his petition that following the explosion, Toptancılar Sitesi had been declared a hazardous area by the Batman governor’s office and had accordingly been evacuated, which had significantly reduced the value of his property. He had also been deprived of his rental income for the next year and a half. Moreover, since the necessary steps had not been taken to clean the oil leak, the area was still at risk of further explosions. The applicant also stated that the responsibility of Tüpraş for the explosion had been established by the expert reports submitted to the Batman Civil Court in another case (see paragraphs 44 and 45 above).", "47. In its response dated 19 December 2006, Tüpraş claimed firstly that the applicant’s claims had become time-barred, as he had failed to lodge his action within one year of the date of the explosion. It also claimed, inter alia, that: (i) given the proximity of the site of the explosion to the Tüpraş facilities, many wells had been dug around the Tüpraş oil tanks to locate the source of the leak; however, none of those wells had revealed any oil leaks; on the other hand, wells dug around the perimeter of the Refinery had revealed the presence of oil that had leaked from elsewhere towards the Refinery; (ii) the scientific analysis of the samples obtained from the site of the explosion showed that the leaked material had not been produced by Tüpraş; (iii) the expert reports submitted to the criminal case file found that Tüpraş could not be held liable for the explosion; (iv) although the pipeline between Tüpraş and ANT had officially been out of use since 1992, it had been noted after the explosion that the pipeline in question had actually been full of oil; moreover, the pressure tests carried out subsequently showed that the pipeline had been punctured and was leaking oil; (v) the complaints arising from the security measures taken in Toptancılar Sitesi after the explosion, such as the ceasing of commercial activity and the denial of occupation licences, were outside the competence of Tüpraş. 48. On 28 February 2007 the applicant brought another action against Tüpraş in respect of the structural damage that his property had sustained as a result of the explosion, and requested TRY 6,000 as compensation.", "He reserved his right to subsequently increase his claim. The applicant stressed in his petition that the sole responsibility of Tüpraş for the explosion had now been definitively established, as the judgment delivered by the Batman Civil Court against Tüpraş in case no. 2004/966 E. had been upheld by the Court of Cassation (see paragraphs 44 and 45 above). The Batman Civil Court joined the case to the one that the applicant had previously brought in November 2006. 49.", "The Batman Civil Court ordered an expert report to determine the extent of the applicant’s damage. The experts carried out an on-site inspection at the applicant’s property on 7 March 2007, and reported their findings on 12 March 2007. They mainly noted the following: (i) the impact of the explosion had been equivalent to that of an earthquake with a magnitude of 9 on the Richter scale; (ii) the applicant’s property, which was used as business premises, had been mostly repaired by the time of the on-site inspection and commercial activity had resumed; some cracks were nevertheless visible on the walls; (iii) the infrastructure of the building, including water, electricity and telephone connections and the sewer system, had had to be repaired as a result of the damage sustained in the basement; (iv) leaving aside the estimated wear and tear of the property since its construction, the structural damage was noted to be TRY 13,278.36; (v) given the magnitude of the explosion, it was inevitable that the walls and structural joists of the property would sustain cracks; moreover, the explosion had considerably slowed down real estate sales in the area; having regard to these factors, it was estimated that the applicant’s property had lost 50 % of its value, corresponding to TRY 66,483.25; (vi) a drop of 60 to 70 % had been noted in the rental income of property owners in Toptancılar Sitesi subsequent to the explosion; in these circumstances, the applicant’s loss of rental income for the eighteen months following the explosion was calculated to be TRY 5,400. 50. In the light of the findings in the expert report, on 22 March 2007 the applicant applied to the Batman Civil Court to increase his original claims in line with the amounts calculated by the experts.", "51. On 18 April 2007 the Batman Civil Court allowed the applicant’s compensation claim in so far as it concerned the depreciation of the value of his property and the structural damage it had sustained as a result of the explosion, but rejected the claims concerning a loss of rental income for lack of sufficient evidence. The Civil Court held in its decision that both the original claims and the subsequent request to increase those original claims had been brought within the one-year time-limit set out in Article 60 § 1 of the former Code of Obligations, bearing in mind that the relevant time-limit would only start running when both the damage and the tortfeasor responsible for that damage became known to the victim. It stressed in this regard that the identity of the tortfeasor at issue had only been “known” once the judgment in case no. 2004/966 E., which had established Tüpraş as solely responsible for the explosion, had been upheld by the Court of Cassation, and the request for rectification of that Court of Cassation decision was still pending.", "52. On 26 October 2007 Tüpraş appealed against that judgment. In its appeal, it mainly repeated its time-limit objections and contested the findings in the expert report of 12 March 2007 that had formed the basis of the first-instance court’s judgment. The company also stressed that it had been held responsible for the explosion without any objective and tangible proof. Bearing in mind that 132 similar civil actions had been brought against its refinery in connection with the explosion of May 2004, it now risked paying damages of over TRY 10 to 12 million, plus interest and court fees.", "53. On 18 February 2008 the 4th Chamber of the Court of Cassation quashed the judgment of the first-instance court, holding that the time-limit for bringing an action under Article 60 § 1 of the former Code of Obligations, which had started running on the date of the explosion, had expired by the time that the applicant had brought his claims. The Court of Cassation held in this connection that the explosion at issue had taken place on 3 May 2004 and that, soon after that date, some of the property owners in Toptancılar Sitesi had brought compensation claims against Tüpraş. Since the applicant was also a property owner in Toptancılar Sitesi, he should have formed an opinion regarding the responsibility of Tüpraş for the explosion on the date of its occurrence. The Court of Cassation stated that venturing a guess as to the identity of the tortfeasor, within the bounds of possibility, was sufficient to bring an action; it was not necessary to have the tortfeasor established with certainty.", "The applicant’s claim that he had brought the action subsequent to the establishment of the tortfeasor as Tüpraş in a case brought earlier by other property owners could not stop the running of the time-limit from the date of the explosion. The Court of Cassation further stated that although criminal proceedings had also been brought against Tüpraş executives in connection with the explosion in question, the longer prescription period applicable to the criminal offence at issue could not apply to the civil compensation claim brought against Tüpraş within the meaning of Article 60 § 2 of the former Code of Obligations. That was because, where a civil claim brought against a company for offences committed by its employees was concerned, the longer time-limit provided in the Criminal Code applied in the civil proceedings only for offences under Article 465 of the Criminal Code. Since the charges brought against the Tüpraş executives did not concern one of the offences under Article 465, the civil claim against Tüpraş should have been brought within the aforementioned one-year time-limit. 54.", "On 12 May 2008 the applicant’s representative requested rectification of the decision of the Court of Cassation. He mainly made the following arguments: (i) the Court of Cassation’s ruling that merely guessing, or being in a position to guess, the tortfeasor was sufficient to trigger the Article 60 § 1 time‑limit ran counter to the doctrine and settled practice of the Court of Cassation on the issue, which unambiguously required certain and exact knowledge of the tortfeasor before the time-limit could start running; the applicant relied in this connection on a judgment of the Joint Civil Chambers of the Court of Cassation dated 22 November 1974, as well as to some articles drafted by legal scholars and practitioners dating as far back as 1992; (ii) the studies conducted in the aftermath of the explosion showed that the explosion had not been a simple accident, but had involved very complex elements; bearing in mind that it had taken even the experts in the field almost one year of scientific studies to establish the exact cause of the explosion, and another year after that to identify its source, a simple layman such as him could not be expected to have known the tortfeasor on the very day that the explosion took place; (iii) in these circumstances, he had only acquired the requisite knowledge of the tortfeasor upon the finalisation of case no. 2004/966 E; (iv) it was well established in the legal doctrine, as well as in the Court of Cassation judgments, that where “continuing damage” was concerned, the time-limit would only start running when the damage at issue came to an end; bearing in mind the risk of further explosions at Toptancılar Sitesi on account of the leak, his damage had not come to an end. 55. On 25 September 2008 the 4th Chamber of the Court of Cassation dismissed that request without providing any reasoning.", "56. On 19 December 2008 the Batman Civil Court delivered a judgment in line with the quashing decision of the Court of Cassation and dismissed the applicant’s claims for having become time‑barred. 57. On 10 March 2009 the applicant appealed against that judgment. In his appeal, he mainly reiterated the arguments noted in paragraph 54 above.", "He also stated that the 7th Chamber of the Court of Cassation had ruled in many cases concerning the same explosion that for the purposes of the time‑limit rule set out in Article 60 § 1, the requisite knowledge of the tortfeasor could not be considered to have been acquired before the respective actions had been brought (see the cases noted in paragraph 68 below). The 7th and 4th Chambers of the Court of Cassation had, therefore, delivered contradictory judgments on the same legal issue concerning identical facts. 58. On 28 May 2009 the 4th Chamber of the Court of Cassation upheld the judgment of the first-instance court without responding to any of the applicant’s claims. 59.", "On an unspecified date the applicant requested rectification of the Court of Cassation’s decision. He highlighted, inter alia, the absence of any evidence in the case file to suggest that he had learned the identity of the tortfeasor prior to its establishment by the Batman Civil Court in case no. 2004/966 E. 60. On 22 October 2009 the 4th Chamber of the Court of Cassation dismissed the applicant’s rectification request. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Civil Procedure 61. Under Article 439 § 4 of the Code of Civil Procedure in force at the material time (Law no. 1086), an appeal was possible against judgments delivered by first-instance courts in compliance with earlier quashing decisions of the Court of Cassation. B.", "Code of Obligations 62. Under Article 41 of the Code of Obligations (Law no. 818) in force at the material time (“the former Code of Obligations”), any person who caused damage to another in an unjust manner, be it wilfully, negligently or imprudently, had to provide redress for that damage. 63. Article 42 of the former Code of Obligations provided that it fell on the claimant to prove his or her damage.", "Where the exact value of the damage could not be ascertained, the judge would estimate the value on an equitable basis. 64. Under Article 60 § 1 of the same law, an action for compensation for damage would become time-barred one year after the date on which the damage and the identity of the author thereof became known (ıttıla) or, at the latest, ten years after the commission of the act that had caused the damage. The same provision provided in its second paragraph that where the compensation claim originated in an act which also constituted an offence under criminal law that was subject to a longer prescription period, then that longer period would also apply in the action for compensation. C. Judgments of the Joint Civil Chambers of the Court of Cassation concerning the interpretation of Article 60 § 1 of the former Code of Obligations 65.", "The Court notes that the Joint Civil Chambers of the Court of Cassation have interpreted the one-year time-limit rule set out in Article 60 § 1 of the former Code of Obligations as follows[1]: “Under Article 60, paragraph 1 of [the Code of Obligations], the right to lodge an action for compensation in connection with a tortious act starts when the victim learns of the damage and the tortious act, and will become time-barred after one year. What is essential in this respect is [for the victim to have] learned of the damage and the [person] liable to pay the compensation. [Merely] being in a position to learn [this] is not sufficient to trigger the time-limit. Depending on whichever of the damage or the [person] liable [for the damage] is learned later, the time-limit shall start running from that later date.” 66. In two judgments dated 24 October 1970 (e. 966/4-1588 K. 601) and 17 September 2008 (E. 2008/4-558 K. 2008/547), the Joint Civil Chambers of the Court of Cassation dismissed the time-limit objection by the respective respondents on the grounds that the latter had failed to demonstrate, with sufficient evidence, that the claimant had learned the identity of the real tortfeasor more than one year before the case had been brought.", "The Joint Civil Chambers stressed in both cases that it fell on the respondent to prove that the relevant knowledge had been acquired before the date alleged by the claimant. It is also evident from the reasoning in both cases that the failure of the claimant to take the necessary steps to uncover the identity of the actual tortfeasor could not be used against him in the calculation of the time-limit, as the one-year time‑limit would only start running from the date on which the claimant actually learned who the real tortfeasor was. D. Interpretation of the relevant time-limit rule in the legal doctrine 67. Excerpts from books and articles relied on by the parties in their submissions, and the references therein, suggest that the aforementioned interpretation of the relevant time-limit rule has also long been embraced in the legal doctrine[2]. The Court notes, in particular, an article published in 2008 in the journal of the Union of Turkish Bar Associations on the trigger of the limitation period in tort claims, which was cited by the Government in their observations[3].", "Relying on a number of older books and articles by legal scholars and practitioners, this article claimed that a person would only be deemed to have attained the requisite “knowledge” of the identity of the tortfeasor if he or she had acquired exact and certain information that was sufficient to bring a legal action; mere suspicions and guesses as to the identity of the tortfeasor were not deemed to constitute “knowledge” for the purposes of Article 60 § 1 of the former Code of Obligations. The Court notes that the same argument was made in an article published in October 1978 in the Journal of Court of Cassation judgments by a judge rapporteur at the Court of Cassation[4]. It also notes that the same principles were reiterated in 1992 in an article published by another judge in the Court of Cassation periodical[5], which the applicant relied on in his observations. E. Judgments of the Court of Cassation in compensation proceedings concerning the explosion at issue 68. In a number of cases decided in early 2007 concerning claims brought in 2006 (that is, more than one year after the explosion) by other victims of the explosion at issue, the 7th Chamber of the Court of Cassation rejected the time-limit objections raised by Tüpraş.", "It referred, in this regard, to the absence of any evidence or documents in the relevant case files to demonstrate that the claimants had learned of the damage or the tortfeasor prior to lodging their claims[6]. 69. It appears, however, from the information submitted by the present applicant, as well as from other applications communicated together with the present application[7], that the 4th Chamber of the Court of Cassation has subsequently adopted a different approach. It ordered the start of the time‑limit from the date of the incident, holding that the injured parties had been in a position to assess the responsibility of Tüpraş for the explosion as of that date. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 70. The applicant complained that he had been denied a fair trial on account of the dismissal of his compensation claim as being out of time, which had been based on an inaccurate interpretation of Article 60 § 1 of the former Code of Obligations, as well as an erroneous assessment of the facts. He further maintained that the domestic court decisions had lacked reasoning, and had contradicted decisions delivered by the Court of Cassation in respect of others who had sustained damage to their properties as a result of the same explosion. The applicant relied on 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 fair ... hearing within a reasonable time by [a] ... tribunal ...” 71. The applicant also complained in his observations submitted to the Court on 16 October 2017 that, given that criminal charges had also been brought against Tüpraş officials in connection with the explosion at issue, the criminal prescription period applicable to those charges should have also applied in the corresponding civil proceedings as per Article 60 § 2 of the former Code of Obligations.", "72. The Government contested those arguments. A. Admissibility 1. Compliance with the six-month time-limit a. The Government’s preliminary objection 73.", "The Government argued that the applicant had failed to comply with the six-month time-limit set out in Article 35 § 1 of the Convention. They claimed in this regard that the “final decision” for the purposes of that provision had been that delivered by the Batman Civil Court on 19 December 2008. Since that decision had been delivered in compliance with the earlier quashing decision of the Court of Cassation dated 18 February 2008, a further appeal against it would not have yielded a different result or a reassessment on the part of the Court of Cassation. 74. The applicant did not comment on this issue.", "75. The Court reiterates that the six month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision in the process of exhaustion of domestic remedies. This entitles only remedies which are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006). 76.", "The Court notes that the judgment delivered by the Batman Civil Court on 18 April 2007 in the applicant’s favour was subsequently quashed by the Court of Cassation on 18 February 2008. The case was thus remitted to the Batman Civil Court, which decided on 19 December 2008 to comply with the quashing decision of the Court of Cassation. The Government claimed, without relying on any legal provisions or domestic case-law to support their claim, that the judgment of the first‑instance court dated 19 December 2008 had been the final effective decision concerning the applicant’s compensation claim, as the Court of Cassation had been prevented from making a reassessment on the same matters. The Court notes, however, that under Article 439 of the Code of Civil Procedure in force at the material time, it was open to the parties to lodge an appeal against a first‑instance court judgment that had been delivered in compliance with an earlier quashing decision by the Court of Cassation (see paragraph 61 above). 77.", "By appealing against the Batman Civil Court’s judgment of 19 December 2008, the applicant, therefore, clearly used an ordinary right of appeal that had been granted to him by the Code of Civil Procedure. In the absence of sufficient arguments to the contrary by the Government, the Court finds no reason to doubt the effectiveness of that remedy. The Court notes, furthermore, that the applicant raised pertinent questions that called for a response from the Court of Cassation both during the appeal and the subsequent rectification stages (see paragraph 99 below for further arguments on this matter), and his attempts to clarify those important matters that went to the very core of his right of access to court cannot be used against him in the assessment of his compliance with the six‑month time-limit. 78. In the light of the above, the Court considers that the Government’s objection that the applicant submitted his complaints out of time should be dismissed.", "b. Compliance with the six-month time-limit in respect of the applicant’s complaints raised after notice of the application was given to the Government 79. In his observations dated 16 October 2017 in reply to those of the Government, the applicant submitted a new complaint regarding the alleged failure of the domestic courts to apply the special time-limit provided for in Article 60 § 2 of the former Code of Obligations in the compensation proceedings that he had brought against Tüpraş (see paragraph 71 above). 80. The Court notes that this additional complaint concerns the compensation proceedings which were finalised on 22 October 2009.", "The Court further notes that it does not constitute an elaboration on the applicant’s original complaints to the Court, but raises a new issue. Accordingly, the Court must reject it pursuant to Article 35 §§ 1 and 4 of the Convention for having been lodged outside the six-month time‑limit (see, for instance, Ashot Harutyunyan v. Armenia, no. 34334/04, § 99, 15 June 2010; Shesti Mai Engineering OOD and Others v. Bulgaria, no. 17854/04, §§ 93-94, 20 September 2011; and A.D. and Others v. Turkey, no. 22681/09, § 127, 22 July 2014).", "2. Other admissibility issues 81. 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 and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ arguments a. The applicant 82. The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair trial on account of the erroneous decisions of the domestic courts, which had wrongly rejected his case as being out of time and which had, moreover, lacked sufficient reasoning. The applicant maintained in particular that the domestic courts had erred in the interpretation and application of the criteria pertaining to the calculation of the relevant time-limit rule under Article 60 § 1 of the former Code of Obligations and had failed to take into account the special circumstances of his case, thus depriving him of access to a court.", "83. The applicant explained that under Article 60 § 1 of the former Code of Obligations, an action for damages had to be brought within one year of both the identity of the wrongdoer and the damage sustained becoming known to the victim. 84. As regards the first criterion concerning the identity of the wrongdoer, the applicant claimed that it had long been established in Court of Cassation decisions, as well as in the legal doctrine, that the one-year time‑limit in question would not start running until the wrongdoer was determined with certainty, and that mere suspicions as to responsibility were not enough to set off the time-limit. The applicant submitted examples from the case-law of the Court of Cassation and the doctrine to support his claim.", "Bearing in mind the technical difficulties encountered, even by experts, in identifying the source of the leak in the instant case, the responsibility of Tüpraş for the explosion had been far from certain for a long time after the incident, and he could not have been expected to bring a case in such circumstances on the basis of mere speculation. The applicant stressed in this connection that although the report issued by the technical commission on 14 June 2004 had indicated that the leak had probably originated from Tüpraş, that report had been deemed unsatisfactory, and the Prime Minister’s Office had therefore established new commissions to investigate the source and circumstances of the leak (see paragraphs 18 and 22 above). In its subsequent report dated 11 October 2004, the Prime Minister’s Office Commission had stated that it ultimately fell on the courts of law to establish, with certainty, who was responsible for the explosion (see paragraph 19 above). 85. The applicant also contested the Government’s allegation that the media had widely reported from very early on that Tüpraş was responsible for the explosion (see paragraph 90 below), and submitted other newspaper articles, including some published years after the incident, concerning the ongoing uncertainty regarding the source of the leak and the entity responsible.", "86. As for the second criterion concerning the knowledge of the damage sustained, the applicant contended that there were numerous expert reports indicating that the oil leak in the area had not stopped, which meant that there was still ongoing damage to his property, as evidenced by its loss in value and the continuing restrictions on its use on account of the persisting danger caused by the leak. Moreover, according to information obtained from the Municipality of Batman, the decision of the Local Environment Board of the Batman governor’s office dated 17 August 2005 regarding the withholding of business or occupation permits in the “red zone” (see paragraph 21 above) was still in force, since an underground clean-up operation was yet to be carried out at the site of the explosion. In these circumstances, the date of the explosion could not be regarded as the cut-off date on which he had learned of the full extent of his damage. 87.", "The applicant argued, in addition, that the Court of Cassation had allowed the compensation claims of some other property owners in a virtually identical position, which compounded the unfairness of the proceedings against him. He referred in this connection to a number of decisions delivered by the 7th Chamber of the Court of Cassation in early 2007 (see paragraph 68 above). In all of those decisions, the time-limit objections raised by Tüpraş had been dismissed for lack of evidence or documents in the relevant case files to demonstrate that the claimants had learned of the damage and the responsibility of Tüpraş for that damage prior to lodging their claims in 2006. b. The Government 88. The Government maintained that it fell on the national judges to interpret the application of domestic law.", "In the absence of any arbitrariness in the interpretation of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations by the relevant domestic courts, the applicant’s complaint in this regard was of a fourth-instance nature. 89. According to the Government, the Court of Cassation had acknowledged in the applicant’s case that the identity of the tortfeasor had been certain in view of the criminal and civil proceedings brought by some other property owners against Tüpraş in the aftermath of the explosion. The Court of Cassation had stated that while this certainty was not of an absolute nature, the fact that the tortfeasor had been identifiable had been sufficient to bring an action. For these reasons, the applicant should have brought his compensation claim against Tüpraş within one year of the explosion.", "90. The Government added that the damage and the identity of the tortfeasor had become well known through the media soon after the incident, and some other property owners in the area had thus been able to bring cases against Tüpraş within the prescribed time-limit. They submitted a total of three news articles in support of their claim, two of which (dated 28 and 30 January 2005) reported on the commencement of the criminal investigation against Tüpraş executives. The other (dated 4 May 2004) concerned a statement from the governor of Batman, claiming that the explosion had been caused by the trapping of methane in the TPAO petrol pipeline. 91.", "The Government further argued that the damage affecting the value of the property and the loss of rent had been known to the applicant soon after the incident; the fact that those losses had continued did not mean that there was “continuing damage” within the legal sense of the term. The cause of the damage sustained, which was the explosion, was not an incident of a continuous nature. 92. As for the applicant’s arguments regarding the contradictory decisions delivered by the Court of Cassation in identical claims arising from the same explosion, the Government claimed that all the actions referred to by the applicant had been brought within one year of the date of the explosion, that is, within the lawful time-limit. As such, they did not constitute a contradiction to the reasoning adopted by the Court of Cassation in the applicant’s case.", "2. The Court’s assessment 93. The Court deems it appropriate to examine the applicant’s complaints from the perspective of the right of access to a court, as guaranteed by Article 6 § 1 of the Convention (see Cañete de Goñi v. Spain, no. 55782/00, § 33, ECHR 2002‑VIII). It refers in this connection to the recapitulation of it case-law concerning access to court in the recent Grand Chamber case of Zubac v. Croatia ([GC] no.", "40160/12, §§ 76-79, 5 April 2018). 94. In the instant case, the Court notes that there is a divergence of opinion between the parties over the construction of the time-limit rule set out in Article 60 § 1 of the former Code of Obligations, under which all tort claims had to be brought within one year of the damage and the identity of those responsible for that damage becoming known to the victim of the civil wrong. The parties differ in particular on the criteria to be used for establishing the date on which the applicant could have been deemed to have “known” the identity of the tortfeasor for the purposes of Article 60 § 1. In its decisions in the present case, the Court of Cassation found that the applicant should be considered to have “known” the identity of the tortfeasor on the very same day that the explosion had occurred, as he had been in a position to “guess” the responsibility of Tüpraş for the incident from as early as that day.", "The applicant argued that the interpretation adopted by the Court of Cassation (i) had been contrary to the generally accepted construction of the relevant time-limit rule and many decisions delivered by that court concerning the very same incident, and (ii) had failed to take into account the complexities of the circumstances underlying his claim. 95. The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of procedural rules, such as time-limits for filing documents or lodging appeals. The Court’s role is limited to verifying compatibility with the Convention of the effects of such an interpretation (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII). Consequently, the Court’s task is essentially to determine whether, in the present case, the Court of Cassation calculated the start of the relevant one-year time-limit in a foreseeable and reasonable manner, without constituting a bar to the applicant’s effective access to court (see, mutatis mutandis, Melnyk v. Ukraine, no.", "23436/03, § 26, 28 March 2006). 96. The Court notes at the outset that the Code of Obligations did not offer any guidance on how the “knowledge” requirement would be interpreted for the purposes of the time-limit rule under its Article 60 § 1. Nor did the Court of Cassation rely on any precedents in support of its interpretation of that requirement in respect of the applicant’s claim. The applicant, for his part, submitted, both to the Court of Cassation and subsequently to the Strasbourg Court, some examples of the case-law of the Joint Civil Chambers of the Court of Cassation and the legal doctrine to support his argument that mere suspicions as to the identity of the wrongdoer would not trigger the one-year time-limit in question.", "The Court has also discovered proprio motu that the Joint Civil Chambers of the Court of Cassation delivered a number of judgments in 2012 and afterwards, in which it verified that merely being in a position to learn the identity of the wrongdoer was not sufficient to start the time-limit (see paragraph 65 above). 97. The Court communicated the material provided by the applicant, as well as the information obtained proprio motu, to the respondent Government for their comments. It asked the Government specifically whether the calculation of the relevant statutory limitation period in the applicant’s case had been foreseeable and in compliance with the practice of the Court of Cassation, in view of the arguments and material presented to it. In their response, the Government did not contest the case-law and principles relied on by the applicant in connection with the interpretation of the relevant time-limit rule, nor did they provide other examples of case‑law or from elsewhere to rebut the applicant’s allegations and justify the reasoning adopted by the Court of Cassation in the present case.", "On the contrary, some of the material they submitted to the Court in fact supported the latter’s claims as regards the starting point of the relevant time-limit (see, in particular, footnotes 6 and 7 in paragraph 67 above). The Court notes that in these circumstances, the applicant’s claim that the Court of Cassation’s interpretation of the relevant time-limit rule in his case had departed from the widely accepted construction of that rule remains technically unrebutted. 98. The Court notes furthermore that only a few months before the dismissal of the applicant’s claim for having become time-barred, another chamber of the Court of Cassation examined compensation claims brought by other victims of the same explosion against Tüpraş and interpreted the time-limit rule in their favour. While the Court is aware that the delivery of conflicting decisions by national courts will not, by itself, constitute a violation of Article 6 of the Convention (see, for instance, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no.", "13279/05, §§ 49-58, 20 October 2011, and Emel Boyraz v. Turkey, no. 61960/08, §§ 72 and 73, 2 December 2014, and the cases cited therein), it nevertheless considers that such divergence suggests a lack of clarity in the interpretation of the relevant time-limit rule on the present facts, and thus reinforces the applicant’s allegations of unforeseeability. 99. In this connection, the Court finds it problematic that despite the applicant’s persistent requests, the 4th Chamber of the Court of Cassation provided no reasoning as to why it diverged from decisions delivered by another chamber in circumstances that were, in substance, identical to those of the applicant. While the duty under Article 6 § 1 to give reasons for decisions may not be understood as requiring a detailed answer to every argument, in particular where an appeal court is concerned, the Court considers that the proper administration of justice required an answer from the Court of Cassation in the present circumstances (see, mutatis mutandis, Emel Boyraz, cited above, § 75).", "This is particularly so considering that the arguments raised by the applicant were decisive for the outcome of the proceedings (see, for instance, Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303‑A, and Cihangir Yıldız v. Turkey, no. 39407/03, § 42, 17 April 2018). 100. The Court notes that the Government, for their part, denied altogether the existence of a contradiction between the Court of Cassation’s different chambers, arguing that the cases referred to by the applicant had in any event been lodged within one year of the date of the explosion.", "The Court cannot, however, accept the Government’s submission in this regard; having examined the cases at issue, it notes that they had all been brought in 2006 as indicated by the applicant, and not within one year of the explosion as alleged by the Government. 101. Lastly, the Court notes that beyond the discussion as to the possible ambiguities surrounding the interpretation of the time-limit rule at issue, the manner in which that rule was applied in the applicant’s case was somewhat formalistic. While the Court is in no position to assess when the applicant should be considered to have “known” that Tüpraş was responsible for the incident – however that term is to be construed – expecting him to have acquired the requisite knowledge on the very date that the explosion took place appears to have imposed a disproportionate burden on him in the circumstances. 102.", "The Court notes in this connection that in the immediate aftermath of the incident, the information as to its cause and origin was limited to mere speculation (see, for instance, the statement by the governor of Batman in paragraph 90 above that the explosion had been caused by methane trapped in the TPAO pipeline, which later turned out to be inaccurate). Numerous commissions were, therefore, established and studies were conducted by experts in the field in order to shed light on the circumstances of the explosion and determine who was responsible for it. Those experts acknowledged that the explosion of 3 May 2004 had been a highly complex phenomenon, and the technical limitations encountered prevented rapid progress in establishing the circumstances surrounding it, including the identity of the entity responsible. They also stated that it ultimately fell on a court of law to determine, with certainty, responsibility for the explosion. Even the expert reports obtained subsequently during the criminal proceedings indicated that there was no sufficient evidence to determine conclusively that Tüpraş was responsible for the incident (see paragraphs 38 and 39 above).", "Moreover, the expert report dated 3 March 2006, that ultimately determined the responsibility of Tüpraş for the incident, had been based on highly technical considerations which a layman could not be expected to make (see paragraph 43 above). It is, therefore, clear that the compensation claim that is the subject‑matter of the present application did not involve a simple tort case. 103. The Court reiterates that although time-limits are in principle legitimate procedural limitations on access to a court, their interpretation in disregard of relevant practical circumstances may result in violations of the Convention (see, mutatis mutandis, Neshev v. Bulgaria, no. 40897/98, § 38, 28 October 2004).", "The Court further reiterates that the right of access to court under Article 6 § 1 may be impaired if a time-limit for instituting compensation proceedings for damages starts to run at a moment when an applicant was not or could not have been aware of the claim or of the factual basis for making such claim (see, mutatis mutandis, Eşim v. Turkey, no. 59601/09, §§ 21-27, 17 September 2013; Sefer Yılmaz and Meryem Yılmaz v. Turkey, no. 611/12, §§ 62-74, 17 November 2015; Çakmakçı v. Turkey (dec.), no. 3952/11, § 44, 2 May 2017; and Teker v. Turkey (dec.), no. 2272/11, § 58, 20 June 2017).", "The Court notes that in the view of the 4th Chamber of the Court of Cassation, the time-limit at issue had started running on the date of the explosion. However, having regard to the nature of the explosion, the uncertainty of the cause of the damage, the complexity of the matter, as well as the various reports on the issue, the Court finds it difficult to follow the reasoning of the Court of Cassation. In the Court’s opinion, the Court of Cassation’s interpretation and application of the relevant time‑limit rule, whereby the applicant was required to institute proceedings at a moment when he could not realistically have sufficient knowledge of the cause of the damage or the identity of those responsible, seems very formalistic, bearing particularly in mind the possible practical and financial implications of such requirement for the applicant. The Court stresses in this connection that contrary to the arguments of the Court of Cassation and the Government (see paragraphs 53 and 89 above), the victims who initiated compensation proceedings within one year of the explosion did not bring those actions against Tüpraş alone, but against both possible tortfeasors (see paragraph 42 above). 104.", "The Court acknowledges that the foregoing issues, when viewed in isolation, may not necessarily raise a problem under Article 6 § 1 of the Convention, reiterating in particular the limits of the Court’s competence when it comes to complaints arising from the interpretation and application of domestic law. The Court nevertheless considers that when viewed as a whole, they lead to the conclusion that the strict application by the domestic courts of a procedural rule, which seemingly lacked clear and consistent precedential support at the material time, deprived the applicant of the right of access to a court to have his claims for compensation examined, particularly given the extraordinary circumstances of the incident underlying the applicant’s claim. 105. In these circumstances, the Court concludes that there has been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention. 106.", "Having regard to this finding, the Court does not deem it necessary to examine separately the applicant’s allegation that his claim should not have been considered to have become time-barred under Article 60 § 1 of the former Code of Obligations by reason of the “continuing” nature of the damage at issue. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 107. The applicant complained under Article 1 of Protocol No.", "1 to the Convention (i) that the State authorities had failed in their positive obligations to take the necessary precautions to avoid the explosion and the resulting damage to his property; (ii) that he had not been provided with redress for the damage he had sustained despite its recognition by experts; and (iii) that the building restrictions imposed by the authorities in the aftermath of the explosion, which were still in force on account of the continuing leakage and risk of further explosions, had severely restricted the use of his property. 108. The applicant further maintained under Article 13 of the Convention that the criminal proceedings initiated after the incident had not been effective and, in particular, had not complied with the criteria laid down by the Court in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004‑XII). 109.", "The Court considers that the applicant’s complaints under this head fall to be examined under Article 1 of Protocol No. 1 to the Convention alone, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ arguments 110.", "After reiterating their objection regarding the six-month rule (noted in paragraph 73 above), the Government argued that the applicant’s complaints under this head should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies because (i) he had failed to bring an administrative action against the relevant State authorities which he held responsible for the alleged infringement of his property rights; (ii) his compensation claim against Tüpraş had been rejected by the domestic courts on account of his failure to comply with the domestic procedural rules for bringing such claim; and (iii) he had not objected to the “disaster victim list” prepared by the Damage Assessment Commission, although the list did not include his name. 111. The Government further argued that the applicant could not be considered a “victim” of a violation of his right to property within the meaning of Article 34 of the Convention, as his property had not been amongst those identified as damaged by the Damage Assessment Commission. 112. Lastly, the Government claimed that contrary to the applicant’s arguments, an effective investigation had been conducted into the incident and that the fact that it had not resulted in a conviction did not as such undermine its effectiveness.", "They added that since the damage at issue had not been inflicted intentionally, civil proceedings could provide adequate redress, and many victims had been compensated in this way by Tüpraş in the aftermath of the explosion. 113. The applicant maintained his allegations and argued, in particular, that the Government’s objection as to the non-exhaustion of the available domestic remedies showed a lack of good faith, as any actions brought against State authorities were doomed to fail in the circumstances. B. The Court’s assessment 114.", "The Court reiterates that the effective exercise of the right protected by Article 1 of Protocol No. 1 does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions (see Öneryıldız, cited above, § 134). The nature and the scope of the positive obligations vary depending on the circumstances. However, as a general rule, the State must ensure that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights, including, where appropriate, by claiming damages in respect of any loss sustained (see Blumberga v. Latvia, no. 70930/01, § 67, 14 October 2008).", "The measures which the State can be required to take in such a context can therefore be preventive or remedial (see Kotov v. Russia [GC], no. 54522/00, § 113, 3 April 2012). 115. The Court considers at the outset that the operation of the Tüpraş Refinery in Batman undoubtedly fell under the category of dangerous industrial activities, particularly given its proximity to commercial and residential areas. The Court has already stated, in the context of Articles 2 and 8 of the Convention, that the positive obligations resulting from dangerous industrial activities require the State to regulate such activities and put adequate safeguards in place to protect the right to life and physical integrity against dangers that may arise from such activities (see Öneryıldız, cited above, §§ 89-90, and Brincat and Others v. Malta, nos.", "60908/11 and 4 others, §§ 79-85 and 102-116, 24 July 2014). The Court considers that the principles developed in this respect under Articles 2 and 8 apply equally under Article 1 of Protocol No. 1, where property damage results, inadvertently, from a dangerous activity. It has accordingly held that in a situation where lives and property were lost as a result of a dangerous activity occurring under the responsibility of the public authorities, the scope of measures required for the protection of dwellings was indistinguishable from the scope of those to be taken in order to protect the lives of the residents (see Öneryıldız, cited above, §§ 106-108 and 134-136; Budayeva and Others v. Russia, nos. 15339/02 and 4 others, § 173, ECHR 2008 (extracts); and Kolyadenko and Others v. Russia, nos.", "17423/05 and 5 others, § 216, 28 February 2012). 116. The applicant claimed that the State authorities had neither taken the necessary preventive measures to protect his right to property against the dangerous activity at issue, nor subsequently provided him with adequate remedies to enable him to assert and vindicate his rights. Moreover, the measures taken in the aftermath of the explosion had only served to restrict his property rights further. The Government mainly argued in response that the criminal proceedings conducted in the aftermath of the explosion had been effective and that, in any event, the applicant had failed to exhaust the available domestic remedies in relation to his complaints against the State authorities.", "117. Having regard to those submissions, the Court will first examine whether effective remedies were available in connection with the alleged failure of the State authorities to take the necessary preventive measures to protect the applicant’s property, and then determine whether the applicant has duly exhausted those remedies. 1. Whether there were effective remedies available to the applicant 118. Firstly, the Court notes in this connection the applicant’s complaint that the criminal proceedings brought after the incident had been ineffective.", "He argued, mainly, that those proceedings (i) had failed to establish the shortcomings in the inspection system and identify the public authorities responsible for the incident, and (ii) had focused on the responsibility of the current executives of Tüpraş alone, even though the explosion had resulted from negligence that spanned years. He relied in this connection on the “Öneryıldız criteria”, which he claimed that the authorities should have observed in the present circumstances. 119. The Öneryıldız criteria relied on by the applicant require that where lives are lost as a result of a dangerous activity, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue (see Öneryıldız, cited above, § 94). In such cases, an official criminal investigation becomes indispensable given that public authorities are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused an incident (see Budayeva and Others, cited above, § 140).", "120. The Court acknowledges that the explosion in the present case involved a complex incident on a vast scale, which necessarily entailed facts beyond the immediate reach of the victims, similar to the circumstances in the Öneryıldız case (cited above, § 93). The State authorities, could, therefore, be expected to have undertaken preliminary enquiries – whether criminal, administrative or technical – to identify and establish the complex phenomena that might have caused that incident, in order to enable the victims to assert their rights as necessary on the basis of the facts thus disclosed. 121. The Court also considers, however, that the duty to make available an effective criminal-law remedy as such does not have the same significance with regard to destroyed property as in the event of loss of life in this particular context (see, mutatis mutandis, Budayeva and Others, cited above, § 178; and compare with other types of interference with property rights that may require a criminal-law response, such as the deliberate destruction of property in the case of Selçuk and Asker v. Turkey, 24 April 1998, § 96, Reports 1998‑II, or where the infringement is of a criminal nature, such as in the case of Blumberga v. Latvia, no.", "70930/01, § 67, 14 October 2008). Even taking into account the complexity of the circumstances at issue, the Court does not consider that the stringent procedural requirements originally developed for use in cases involving the use of lethal force, and applied exceptionally to the very special circumstances as those arising in cases such as Öneryıldız despite the non‑intentional nature of the deaths at issue (see, for instance, Oruk v. Turkey, no. 33647/04, §§ 50 and 65, 4 February 2014, and Sinim v. Turkey, no. 9441/10, §§ 62-64, 6 June 2017), can be readily applied in the present circumstances where the applicant’s complaint concerned mere property damage. 122.", "The Court notes that in the present case a number of administrative and technical commissions were set up by the respondent State soon after the explosion in order to shed light on the circumstances of the incident. They established that the explosion had resulted from an underground oil leak and also found, albeit without certainty, that the leak appeared to have originated from the Tüpraş Refinery. Based on the findings of those commissions, the Batman public prosecutor’s office initiated an investigation, of its own motion, into the liability of a number of serving Tüpraş executives for the incident. The ensuing criminal proceedings resulted first in the acquittal of the defendants, and subsequently in the discontinuation of the proceedings altogether for having become time‑barred. 123.", "The Court agrees that having regard to their limited scope, which only targeted a number of serving Tüpraş officials, the criminal proceedings at issue had from the beginning been inadequate to establish the full extent of the negligence (potentially) involved at different levels of the State apparatus over many years in connection with the explosion at issue. That said, the Court also notes that the applicant has not explained how the shortcomings in those criminal proceedings prevented him from asserting his property rights by other means, such as before the civil or administrative courts, which could, in theory, establish the liability of any authorities or entities in connection with the explosion (as the Batman Civil Court did in respect of Tüpraş, see paragraph 44 above), and provide appropriate civil redress, such as an order for damages (see, mutatis mutandis, Budayeva and Others, cited above, § 112). The Court stresses in this respect that under Article 20 § 1 of the Turkish Code of Administrative Procedure, administrative courts, once seized of a certain matter, have the obligation to carry out all necessary research and collect all pertinent documents of their own motion, including by way of obtaining expert reports, in order to determine the responsibility of a State authority in a given case. 124. The Court further observes in this connection its finding in a similar case that omissions such as those alleged in the present case are more likely to result from a combined failure of a number of officials, whose individual liability does not necessarily attain the gravity required for a criminal conviction, especially if those omissions have been ongoing for some time, as appears to have been in the instant case (see, mutatis mutandis, Budayeva and Others, cited above, § 112).", "For that reason, the Court considers that an action for compensation against Tüpraş and the responsible State authorities before the civil and administrative courts would not only be capable, but perhaps also more suitable, to provide the applicant with adequate redress. 125. In these circumstances, having particular regard to the nature of the damage involved, the applicant’s complaint that he had been denied appropriate remedial measures on account merely of the alleged shortcomings in the criminal proceedings is manifestly ill-founded. It must, therefore, be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention. 2.", "Whether the applicant has exhausted the available remedies 126. Having thus established the scope and limits of the State’s procedural obligations to ensure the protection of the applicant’s property rights in the present case, the Court now turns to the Government’s preliminary objection regarding the applicant’s alleged failure to exhaust the available domestic remedies. The Government mainly argued in this connection (i) that the applicant, by failing to comply with the relevant time-limit rules to bring a tort action, had failed to duly exhaust his complaints concerning the responsibility of Tüpraş for the incident; and (ii) that he had not initiated any procedures before the administrative courts in respect of his remaining complaints against the State authorities. 127. The Court reiterates in this regard the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see, for instance, Sargsyan v. Azerbaijan [GC], no.", "40167/06, §§ 115-116, ECHR 2015), and notes in particular that in so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, that remedy should be exhausted (see, mutatis mutandis, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014). 128. As regards the applicant’s complaints concerning the direct responsibility of Tüpraş, as the operator of the refinery, for the explosion and his inability to obtain compensation from the company in respect of his pecuniary damage arising from that explosion, the Court finds it unnecessary to examine the admissibility or the merits of those particular complaints, taking into account the conclusion under Article 6 § 1 of the Convention in that regard (see paragraph 105 above; see also, Cihangir Yıldız, cited above, § 54). 129.", "Inasmuch as the remainder of the applicant’s complaints concern the failure of the respondent State to put in place the necessary legal and administrative framework to regulate and inspect the activities of the refinery in question and the measures taken by the authorities in the aftermath of the explosion, the Court agrees with the Government that the applicant has failed to exhaust the available domestic remedies pertinent to those complaints. 130. The Court notes in this connection that while in the circumstances it was not obligatory for the prosecution authorities to instigate a criminal investigation of their own motion, it was open to the applicant to request a criminal investigation to establish the responsibility of any State authorities who had failed in their positive obligation to take measures that were necessary to avert the risks posed by the Tüpraş Refinery. The Court notes that the applicant did not make such request, or explain why he refrained from taking such action. 131.", "The Court further notes that, even assuming that the applicant deemed the criminal-law remedy ineffective in respect of his complaints at issue, it was open to him to institute administrative proceedings for compensation against the relevant public authorities. Yet, he did not bring an administrative action. He did not, moreover, provide any justification that would absolve him from the requirement to exhaust that remedy, apart from claiming that any action brought against the State authorities was doomed to fail in the circumstances. The Court reiterates in this connection that mere doubts regarding the effectiveness of a particular remedy will not absolve an applicant from the obligation to try it (see, for instance, Vučković and Others, cited above, § 74). In the Court’s opinion, and as already discussed above, the administrative courts were, in principle, empowered to establish the facts of the case, to attribute responsibility for the events in question and to deliver enforceable decisions.", "Furthermore, the effectiveness of that remedy did not depend on the outcome of the pending criminal proceedings, nor was access to it hindered by acts or omissions on the part of the authorities. 132. The Court considers, in the light of the foregoing, and having regard to the scope of its consideration as delimited in paragraphs 128 and 129 above, that the applicant did not pursue all available remedies relevant to his complaints concerning the failure of the State authorities to take the necessary measures to protect his right to property. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies. 133.", "In these circumstances, the Court does not find it necessary to examine the other grounds of inadmissibility put forth by the respondent Government (see paragraphs 109 and 110 above). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 135. The applicant claimed 59,900 euros (EUR) in respect of pecuniary damage, to compensate the damage he had sustained as a result of the explosion at issue, and EUR 50,000 in respect of non-pecuniary damage.", "He also claimed EUR 5,800 for lawyer’s fees and EUR 29 for other costs and expenses incurred before the Court. In support of his claims he submitted a timesheet showing that his legal representative had carried out fifty-eight hours’ legal work on the application submitted to the Court. The remaining expenses were not supported by any documents. 136. The Government contested those claims, deeming them unsubstantiated and excessive.", "They added that, were the Court to find any breach of the Convention, the most appropriate way of remedying that breach would be to request the reopening of the compensation proceedings. 137. 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 to the applicant under this head. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 2,500 under this head.", "138. The Court further reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicants, as far as possible, are put in the position in which they would have been had this provision not been disregarded (see Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be to quash or otherwise set aside the Court of Cassation’s decision of 22 October 2009 (see paragraph 60 above) and restart the proceedings, in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see Kaba v. Turkey, no.", "1236/05, §§ 29-31, 1 March 2011, and Eşim, cited above, §§ 29 and 30). 139. As for the applicant’s costs and expenses, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. 140. 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 concerning the infringement of the right of access to court admissible and the remainder of the complaints under that provision inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the infringement of the applicant’s right of access to a court; 3. Holds that there is no need to examine the admissibility or the merits of the complaints under Article 1 of Protocol No. 1 to the Convention concerning the direct responsibility of Tüpraş for the incident, and the applicant’s inability to obtain compensation from Tüpraş in respect of his pecuniary damage arising from that incident; 4.", "Declares the remainder of the complaints under Article 1 of Protocol No. 1 to the Convention inadmissible; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithRobert SpanoRegistrarPresident [1]. See, for instance, judgments of the Joint Civil Chambers of the Court of Cassation dated 22 February 2012 (E. 2011/4-640 K. 2012/89) and 9 October 2013 (E. 2013/4-36 K. 2013/1457). [2]. See, for instance, Tutumlu, M. Akif. Türk Borçlar Hukukunda Zamanaşımı ve Uygulaması [Limitation Periods in the Turkish Code of Obligations and their Application].", "Seçkin Yayıncılık, 2002; Karahasan, M. Reşit. Türk Borçlar Hukuku –Genel Hükümler Cilt 2 [Turkish Code of Obligations – General Provisions Volume 2], Beta Basım Yayın, 2003; Savaş, F. Burcu. “Haksız Fiil Tazminatının Tabi Olduğu Zamanaşımı Süresinin İşlemeye Başlama Anı” [The Start of the Limitation Period in Tort Claims], TBB Dergisi, no. 74, 2008, p. 130, and the references therein (may also be found at http://tbbdergisi.barobirlik.org.tr/m2008-74-387). [3].", "See the article by Savaş, F. Burcu, cited above in footnote 2. [4]. Karacabey Ö. Faruk, “Haksız Fiillerde Zamanaşımı” [Limitation Period in Tort Claims], Yargıtay Kararları Dergisi, October 1978, Vol.4, no.4: 500 (may also be found at http://www.yargitaydergisi.gov.tr/dergiler/yd/ekim1978.pdf [cited in the aforementioned article by Savaş, F. Burcu]. [5]. Doğangün Temel, “Haksız Fiillerde Zamanaşımı Süreleri ve bu Sürelerin Başlangıcı” (BK.", "m. 60)” [Limitation Periods in Tort Claims and the Start of those Periods], Yargıtay Dergisi, January-April 1992, Vol.18, no.1-2, p 205 (may also be found at http://www.yargitaydergisi.gov.tr/dergi/53). [6]. See, for instance, two judgments dated 21 February 2007 (E. 2007/4286 K. 2008/180, and E. 2007/4287 K. 2008/182), judgment dated 7 March 2007 (E. 2007/3921 K. 2007/4666), and judgment dated 29 January 2008 (E. 2007/4733 K. 2008/181). [7]. See the Communication Report of 12 December 2016 in Günlemenç and Others v. Turkey, no.", "56681/09 and 32 others." ]
[ "FIRST SECTION CASE OF DEL FEDERICO v. ITALY (Application no. 35991/97) JUDGMENT STRASBOURG 4 July 2002 FINAL 04/10/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Del Federico v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF.", "Tulkens,MrG. Bonello,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrV.", "Zagrebelsky, judges, and Mr E. Fribergh, Section Registrar, Having deliberated in private on 20 June 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35991/97) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Alberto Del Federico (“the applicant”), on 19 December 1996. 2. The applicant was represented by Ms Nicoletta Pelinga, a lawyer practising in Falconara Marittima (Ancona).", "The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, assisted by their Co-Agent, Mr V. Esposito. 3. The applicant complained under Article 6 § 1 of the Convention about the length of a set of criminal proceedings. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No.", "11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.", "6. By a decision of 15 March 2001 the Court declared the application partly admissible. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 8. On 9 December 1985 the applicant, accused of theft and possession of drugs, was arrested and placed in detention on remand. He was released on 21 January 1986. 9. In an order of 27 May 1986, the Ancona investigating judge committed the applicant and fifty-eight other persons for trial before the Ancona District Court.", "10. On 2 September 1986 the President of the Ancona District Court scheduled the date of the first hearing for 12 November 1986. 11. In a judgment of 5 March 1987, filed with the registry on 20 March 1987, the District Court acquitted the applicant for lack of evidence (“insufficienza di prove”). A number of his co-accused were sentenced to heavy penalties.", "12. The applicant, together with fourteen other accused, lodged an appeal with the Ancona Court of Appeal in order to obtain a more favourable acquittal formula. 13. On 17 February 1988 the case-file was forwarded to the Court of Appeal. 14.", "The trial hearing, initially scheduled for 16 April 1996, was adjourned until 13 December 1996. 15. In a judgment of the same day, filed with the registry on 10 January 1997, the Court of Appeal acquitted the applicant. This decision became final on 2 February 1997. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complains about the length of the criminal proceedings against him. He alleges a violation of Article 6 § 1 of the Convention, which, as far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 17. The Government reject this allegation on the ground that the case was complex especially by reason of the extensive evidence to be examined. They furthermore observe that, as reasonable doubts could be raised as to the criminal liability of the applicant, the national judges were under a duty to carefully analyse the evidence before them.", "Finally, they stress that the proceeding did not end within a more reasonable time due to the chronic lack of manpower of the Court of Appeal of Ancona. A. Period to be taken into consideration 18. The relevant period began on 9 December 1985, when the applicant was arrested, and ended on 2 February 1997, when the Court of Appeal's judgement became final. 19.", "It therefore lasted eleven years, one month and twenty-four days for two instances. B. Reasonableness of the length of the proceedings 20. According to the Court's case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of judgments and decisions 1997-IV, p. 1083, § 35).", "21. The Court first notes that the case was complex by reason that fifty-nine accused were involved. The Court has not identified any delay in the proceedings which is attributable to the applicant's conduct. However, it finds that there is a period of inactivity imputable to the authorities dealing with the case: between 17 February 1988, date on which the case-file was forwarded to the Court of Appeal, and 13 December 1996, when the first trial hearing, initially scheduled for 16 April 1996, was adjourned. The Government did not provide any explanation for this delay which amounts to a global period of more than eight years and nine months.", "The Court recalls that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of this provision (Portington v. Greece judgement of 23 September 1998, Reports 1998-VI, p. 2633, § 33). 22. In these circumstances, the Court finds that a global period of eleven years, one month and twenty-four days for two instances fails to satisfy the “reasonable time” requirement. 23. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicant seeks 100,000,000 Italian lire (ITL), that sum being intended to cover both pecuniary and non-pecuniary damage.", "As regards the pecuniary damage the applicant stresses that the overall length of the proceeding, the nature of the legal issues involved and the stigma associated with being a drug trafficker prevented him from finding a suitable permanent job in his town and made him go abroad to Germany. As regards the non-pecuniary damage, the applicant alleges that he sustained non-pecuniary damage through anxiety and depression which led him to be hospitalised. However, the applicant left the matter to be assessed by the Court in an equitable manner. 26. The Government maintained that the applicant had failed to adduce evidence of any pecuniary damage sustained as a result of the length of the proceedings in question.", "As regards non-pecuniary damage, if any, the Government submitted that the finding of a violation would in itself constitute adequate just satisfaction. 27. As regards pecuniary damage, the Court agrees with the Government. However, the Court considers that the applicant did sustain some non-pecuniary damage and, making an assessment on an equitable basis, it awards him 10,000 euros. B.", "Default interest 28. The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage; (b) that simple interest at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement; 3.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 4 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]
[ "THIRD SECTION CASE OF STOKIĆ v. SERBIA (Application no. 26308/15) JUDGMENT STRASBOURG 17 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Stokić v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President, Branko Lubarda, Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 26308/15) 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 Stokić (“the applicant”), on 11 May 2015.", "2. The applicant was represented by Ms R. Dugošija, a lawyer practising in Žabari. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 3. On 25 April 2016 the complaint concerning the length of civil proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "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 5. The applicant was born in 1967 and lives in Smederevo.", "6. On 26 March 2007 the applicant lodged a claim with the Žabari Municipal Court against his employer, the Ministry of Interior, seeking payment of certain benefits. 7. On 23 April 2012 the Požarevac First Instance Court the Žabari Court Unit ruled in favour of the applicant. 8.", "On 4 October 2012 the Belgrade Appellate Court revised the First Instance Court’s judgment and rejected the applicant’s claim. The applicant received the said judgment on 5 November 2012. 9. On 12 November 2014 the Constitutional Court rejected the applicant’s constitutional appeal. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 10. The applicant complained that the length of the labour-related proceedings in question had been incompatible with the “reasonable time” requirement, as 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...” 11. The Government contested that argument claiming that in the specific circumstances of the case the length of proceedings could not be considered excessive. 12. The proceedings in question lasted for five years and six months in two instances.", "A. Admissibility 13. The Court notes that this applicant’s complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 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 applicants 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). 15. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 16.", "Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the applicant’s complaint. Having regard to its case-law on the subject (see mutatis mutandis, Stanković v. Serbia, no. 29907/05, 16 December 2008 and Stevanović v. Serbia, no. 26642/05, 9 October 2007), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 17.", "Accordingly, there has been a breach of Article 6 § 1 of the Convention. 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 3,500 euros (EUR) in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage. 20. The Government contested these claims. 21. Given that the pecuniary damages requested by the applicant related to the outcome of the domestic proceedings rather than their length, the Court does not discern any causal link between the violation found and the pecuniary damage requested.", "Therefore, it rejects this claim. However, the Court is satisfied that the applicant has undoubtedly suffered distress on account of the delay in the proceedings in question. It therefore awards the applicant EUR 2,000 in respect of the non-pecuniary damage suffered. B. Costs and expenses 22.", "The applicant also claimed EUR 6,050 for the costs and expenses incurred before the domestic courts and before the Court. 23. The Government contested these claims. 24. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads, less any amounts which may have already been paid in that regard at the domestic level.", "C. Default interest 25. 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 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: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage suffered, and (ii) EUR 500 (five hundreds euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that the amounts specified above shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF IVAN v. SLOVAKIA (Application no. 57405/15) JUDGMENT STRASBOURG 27 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Ivan v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57405/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Tibor Ivan (“the applicant”), on 11 November 2015.", "2. The applicant was represented by Ms A. Havelková, a lawyer practising in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 2 March 2016 the application was communicated to the Government.", "4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Martin.", "6. On 20 October 2011 the applicant lodged a claim with the Martin District Court (“the District Court”) (file no. 10 C 60/2012), seeking payment of his wages plus interest in connection with the termination of his employment. 7. On 17 February 2012 the District Court issued a payment order in summary proceedings.", "As the defendant challenged the order, the matter fell to be determined by the court in ordinary proceedings. 8. It took the District Court more than eight months to deal with an application by the applicant to change the particulars of claim. 9. In October 2014 the applicant lodged a complaint with the Constitutional Court under Article 127 of the Constitution, contesting the length of the proceedings before the District Court.", "10. On 28 April 2015 the Constitutional Court rejected his complaint (file no. III. ÚS 172/20150), on the grounds that, prior to lodging his constitutional complaint, the applicant had failed to exhaust ordinary remedies, in particular lodging a complaint with the President of the District Court under the Courts Act (Law no. 757/2004 Coll.).", "The Constitutional Court referred to the Court’s previous case-law in Ištván and Ištvánová v. Slovakia (no. 30189/07, 12 June 2012), and tried to distinguish that case from the applicant’s case. It observed that the case of Ištván and Ištvánová concerned proceedings lasting more than six years, which was substantially longer than the duration of the proceedings in the applicant’s case (three years). The Constitutional Court further stated that only in cases where the length of proceedings was prima facie excessive at the time of lodging a constitutional complaint was it not necessary to lodge a complaint with the president of a court, and therefore the applicant should have lodged a complaint with the President of the District Court. 11.", "In the meantime, the District Court had appointed an expert in economics, accountancy and tax, and had ordered the applicant to pay fees in advance for the expert evidence. That order was challenged by the applicant before the Žilina Regional Court, but to no avail. The appointed expert then prepared her opinion between June and September 2015. 12. Subsequently, the District Court scheduled a hearing for 16 March 2016.", "On that date the District Court delivered a judgment by which it granted the applicant’s claim in part and dismissed the remainder of the claim. A written judgment was delivered to the applicant two months later. However, in their submissions to the Court the parties failed to specify the exact date when the judgment was served on the applicant, and they did not provide appropriate evidence to confirm this. They also did not inform the Court about any possible further development in the proceedings. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 13. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. In this respect, he relied on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 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 14. The Government disagreed. They referred to the Constitutional Court’s finding that, before lodging his constitutional complaint, the applicant had failed to raise the issue of the length of the proceedings with the President of the District Court, in order to give the President a chance to remedy the situation.", "Since the length of the proceedings in the present case had been shorter than that of proceedings previously assessed by the Court (see, for example, Ištván and Ištvánová, cited above), the requirement to lodge a complaint with the President of the District Court prior to taking the case to the Constitutional Court had been justified. Consequently, the Government, pointing out the difference between the previous case of Ištván and Ištvánová (cited above) and the applicant’s case, sought guidance from the Court in order to clarify the issue. 15. The applicant disagreed. He reiterated that the length of the civil proceedings in his case had already been prima facie excessive at the time he had lodged his constitutional complaint.", "He further stated that the Constitutional Court’s approach in differentiating between the specific lengths of proceedings also ran counter to the legal certainty principle, since the Constitutional Court was not unified on this subject. In addition, he pointed out that, for a remedy to be effective, it should offer redress for proceedings of any length – those lasting three years as well as those lasting twenty years, otherwise this was incompatible with the requirements of the very notion of effectiveness. 16. At the outset, the Court observes that it is unclear from the Government’s submission on which inadmissibility ground of the Convention they wished to rely. However, it also notes that they referred to the Constitutional Court’s inadmissibility decision which principally dealt with the applicant’s having made use of the constitutional remedy in accordance with the applicable rules, in particular the rule of exhaustion of ordinary remedies (see paragraphs 10 and 14 above).", "Therefore, the Court is of the view that the Government’s objection in fact concerned the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention. 17. In this connection, the Court recalls that in Ištván and Ištvánová (cited above, §§ 77–91), in respect of the applicants’ length-of-proceedings complaint, it thoroughly examined their compliance with the exhaustion requirement under Article 35 § 1 of the Convention. It also reiterated those principles in detail in a recent judgment (see Grešáková v. Slovakia (dec.) [Committee], no. 77164/12, §§ 16-20, 22 November 2016), and sees no need to repeat them.", "18. Turning to the facts of the present case, the Court considers that the applicant’s situation is similar to that of Mr Ištván and Ms Ištvánová and Ms Grešáková from the point of view of exhaustion requirement under Article 35 § 1 of the Convention. This is so because his access to the Constitutional Court under Article 127 of the Constitution became dependent on his exhaustion of a complaint to the President of the District Court under the Courts Act. 19. Thus, in so far as the Government’s objection of non‑exhaustion of domestic remedies in the present case has been substantiated, the Court finds no relevant distinction between this case and other cases, such as Ištván and Ištvánová and Grešáková.", "Accordingly, their objection must be dismissed. 20. Having regard to its established case-law on this subject, the Court finds that the Article 6 § 1 complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that no other grounds for declaring it inadmissible have been established. Accordingly, it must be declared admissible. 21.", "The Court considers that the complaint under Article 13 of the Convention, which is linked to the complaint under Article 6 § 1, must likewise be declared admissible. B. Merits 22. The parties have not made any separate observations on the merits. 23.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 25.", "In the present case, the period to be taken into consideration began on 20 October 2011 and ended on 16 March 2016, when the District Court delivered its judgment (see paragraph 12 above). It thus lasted four years, four months and twenty‑seven days at one level of jurisdiction. 26. 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.", "Accordingly, there has been a breach of Article 6 § 1. 27. Furthermore, the Court notes that the Government have submitted no observations at all in respect of the Article 13 complaint. In view of the conclusions reached above as regards the exhaustion of domestic remedies in respect of the complaint under Article 6 § 1 of the Convention, the Court finds, as it has previously in similar circumstances (see Ištván and Ištvánová, cited above, § 113), that the applicant did not have an effective remedy in respect of his complaint regarding the length of the proceedings. Accordingly, there has also been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. The applicant requested to be awarded pecuniary damage of 2,500 euros (EUR) consisting of lost wages and associated claims.", "He also claimed EUR 30,000 in respect of non-pecuniary damage. 30. The Government contended that there was no causal link between the pecuniary damage alleged by the applicant and the alleged breach of Article 6 § 1 of the Convention. They further submitted that the claim in respect of non‑pecuniary damage was overstated. 31.", "The Court observes that the applicant has not shown the existence of a causal link between the violation found and the pecuniary damage alleged. It therefore dismisses this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,600 under that head. B.", "Costs and expenses 32. The applicant also claimed EUR 1,540.90 for costs and expenses incurred before the Constitutional Court and before the Court. He supported his claim by providing contracts for legal assistance. 33. The Government requested that the Court only grant the applicant compensation for reasonably incurred costs and expenses which were supported by relevant documents.", "34. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,540 to cover costs under all heads. C. Default interest 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the 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, in conjunction with Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,540 (one thousand five hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF LALIĆ v. CROATIA (Application no. 9514/02) JUDGMENT (Friendly settlement) STRASBOURG 9 December 2004 This judgment is final but it may be subject to editorial revision. In the case of Lalić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL. Loucaides,MrsF.", "Tulkens,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 18 November 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 9514/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Špiro Lalić (“the applicant”), on 13 February 2002. 2. The applicant was represented by Mr A. Nobilo, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms L. 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 and his right to an effective remedy guaranteed by Article 13 of the Convention. 4. By a decision of 16 December 2003 the Court declared the applicant’s complaints admissible. 5.", "On 23 April and on 21 June 2004 the Government and the applicant, respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1931 and lives in Zagreb. 7. On 13 or 14 July 1992 the applicant’s house in Sukošan, Croatia, was blown up by unknown perpetrators.", "8. On 7 July 1995 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) 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 of 26 January 1996), the Zagreb Municipal Court stayed the proceedings on 9 February 1996.", "10. On 7 November 2002 the applicant complained about the stay on his proceedings before the Zagreb Municipal Court to the Constitutional Court. It would appear that the proceedings before the Constitutional Court are still pending. 11. The proceedings before the Zagreb Municipal Court resumed on an uncertain date 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 of 23 July 2003). 12. On 26 September 2003 the Zagreb Municipal Court dismissed the applicant’s claim on the basis of its lack of jurisdiction. The applicant appealed and the case is now apparently pending before the Zagreb County Court (Županijski sud u Zagrebu). THE LAW 13.", "On 23 April 2004 the Court received the following declaration signed by the Government’s Agent: “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 6,000 to Mr Špiro Lalić. 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 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.” 14. On 21 June 2004 the Court received the following declaration signed by the applicant: “I note that the Government of Croatia are prepared to pay ex gratia the sum of EUR 6,000 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, to Mr Špiro Lalić with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. The applicant accepts the proposal and waives any further claims against Croatia in respect of the facts of this application. The applicant declares that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and the applicant have reached.", "The applicant further undertakes not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgment.” 15. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 16. Accordingly, the case should be struck out of its list of cases.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of its list of cases; 2. Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 9 December 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF ČANGOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 14419/03) JUDGMENT STRASBOURG 24 February 2011 This judgment is final but it may be subject to editorial revision In the case of Čangov v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Zdravka Kalaydjieva, President,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 31 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.14419/03) 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 Duško Čangov (“the applicant”), on 12 February 2003. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.", "3. On 28 November 2006 the President of the Fifth 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 I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1942 and lives in Skopje. He is the manager and sole owner of a limited liability company, the Tehno‑Interexport company (“T.”), the acquirer and legal successor of the Unimont company (“U.”), which ceased to exist on 4 February 1994. A. The first set of proceedings 5.", "On 13 June 1990 U. brought a compensation claim against another company. 6. After the case was remitted for reconsideration by the Supreme Court on 18 November 1998, the Gevgelija Court of First Instance, which had meanwhile become the court with jurisdiction in the matter, partly upheld T.’s claim on 24 October 2005. That decision was upheld by the Skopje Court of Appeal on 28 June 2006. On 16 April 2008 the Supreme Court rejected as out of time an appeal on points of law submitted by T. B.", "The second set of proceedings 7. On 3 November 1992 U. requested the enforcement of a court decision given in its favour. On 6 November 1992 the then competent court made an enforcement order against a private company (“the debtor”). On 21 December 1992 the order was set aside. The proceedings continued on a contentious basis.", "8. In proceedings to settle a conflict of jurisdiction (постапка за решавање на судир на надлежности), the case was assigned to the Skopje Court of First Instance (“the first-instance court”), as the court with jurisdiction in the matter. 9. On 20 November 1998 T. appealed against the decision of 21 December 1992. The Skopje Court of Appeal dismissed the appeal in a decision of 21 February 2001.", "10. On 6 December 2004 the first-instance court stayed the civil proceedings as the debtor, now the defendant, had meanwhile ceased to exist. The parties disagreed as to whether that decision was served on the applicant. According to the Government, the case was archived on 25 December 2005. No evidence was produced as to whether that information was communicated to the applicant.", "C. The third set of proceedings 11. On 31 January 1994 U. lodged a claim for damages against the then Payment Exchange Office (“the Office”) (Служба за Општествено Книговодство Скопје), a State-run institution. The claim concerned alleged irregularities in the enforcement of U.’s claim, which formed the subject of the eighth set of proceedings (see section H. below). 12. At a hearing on 27 November 2002 T. indicated the Ministry of Finance, the legal successor of the Office, as the defendant in the proceedings.", "13. On 19 September 2003 the Skopje Court of First Instance dismissed T.’s claim as it found that the Ministry of Finance had acted in accordance with the law. That decision was upheld by the Skopje Court of Appeal and the Supreme Court in judgments of 3 February 2005 and 14 June 2006 respectively. D. The fourth set of proceedings 14. On 7 April 1995 the applicant requested the enforcement of a final judgment of 20 May 1988 by which three physical persons (“the debtors”) had been ordered jointly to pay him a certain amount of money.", "On 14 April 1995 the then competent court granted the request and ordered the debtors to pay the debt, together with interest. 15. On 2 September 1996 the first-instance court annulled the court order of 14 April 1995 in respect of the interest. It upheld the remainder of the order and ordered a recalculation of the interest. In the meantime, two of the debtors died.", "Their successors took over the debt. On 5 June 1997 the Skopje Court of Appeal quashed the decision of the first-instance court and ordered the lower court to continue with the enforcement. 16. The judgment debt was subsequently partly settled. It remained unenforced in respect of only one of the debtors.", "17. On 6 September 1999 the first-instance court ordered the seizure of that debtor’s salary. The enforcement was not successful as the debtor had meanwhile been dismissed from his job. 18. On 30 June 2000 the applicant sought an enforcement order in respect of a plot of land owned by the debtor in question.", "On 13 October 2000 the first-instance court granted that request. 19. On 27 December 2001 the first-instance court ordered an expert valuation and public sale of the land. It requested the applicant to make an advance payment of the expert’s fees. The court also informed the applicant that the decision of 13 October 2000 had not been served on the debtor.", "It requested the applicant to assist the court’s bailiff in the service of the order. The applicant stated that he had made two unsuccessful attempts to serve the order on the debtor. 20. On 8 November 2002 the first-instance court stayed (запира) the proceedings since part of the debt had already been settled and the applicant had failed to pay the expert’s fees in relation to the remaining part of the debt. According to the applicant, he learnt about that decision on 13 March 2007.", "On 21 March 2007 the applicant appealed. In the absence of any evidence to the contrary, no further decision has been taken in the course of these proceedings. E. The fifth set of proceedings 21. On 26 November 1999 T. requested the enforcement of a court decision of 24 December 1998 establishing a judgment debt against a private company (“the debtor”). It proposed that the debtor’s income obtained from renting business premises be transferred into its account.", "On 30 November 1999 the first-instance court granted that request. On 13 December 1999 it ordered T. to pay court fees and to submit evidence that the premises concerned were in the debtor’s possession. 22. On 30 March 2000 T. withdrew the initial request since it could not provide a certificate of title regarding the immovable property at issue. It also made a fresh request proposing an alternative means of enforcement, namely an inventory and public sale of the debtor’s movable property.", "T. also proposed that the court fees be deducted from its account. On 4 April 2000 the first-instance court granted T.’s request. 23. Owing to structural changes affecting the debtor, on 5 April 2001 T. withdrew its request and submitted a fresh request, seeking the confiscation, valuation and public sale of stakeholders’ shares (удели) in the capital of the debtor’s legal successor (“the successor”). 24.", "On 17 May 2001 the first-instance court, in a formal decision, rejected T.’s request of 26 November 1999 as it had failed to comply with the order of 13 December 1999. In a separate decision of the same date, the court granted T.’s request of 5 April 2001 and ordered the successor to register the confiscation order in its records. It also prohibited any trading in the shares. The court ordered their sale once they had been valued and once the decision of 17 May 2001 had become final. One of the successor’s shareholders challenged that decision by means of an appeal, which was rejected on 9 November 2001.", "25. According to the Government, on 18 April 2002 T. was requested to pay the court fees. No evidence was submitted in support of that assertion. 26. On 22 December 2003 T. informed the first-instance court that its account had been blocked by a competent State agency (Агенција за работа со блокирани сметки) and proposed that the court fees be paid through that agency.", "27. On 11 March 2004 the first-instance court ordered T. to submit information about the successor and its seat, with a warning that in the event of non-compliance the request would be rejected. T. was also ordered to pay the court fees. 28. It appears that the case was archived, but that it was reopened following a request submitted by T. on 27 September 2005.", "That transpired from a letter from T. dated 10 August 2006 in which it sent the court information about the successor’s address. On 21 September 2006 T. withdrew the enforcement request. Consequently, on 22 September 2006 the first-instance court stayed the enforcement proceedings. 29. On 18 December 2006 T. requested enforcement by private bailiffs in accordance with the Enforcement Act of 2005 (see paragraph 52 below).", "In the absence of any evidence to the contrary, T’s enforcement claim has not yet been enforced. F. The sixth set of proceedings 30. On 11 November 1993 the then competent court ordered the enforcement of a final court decision given in favour of U. against a private company (“the debtor”). On 1 December 1994 that decision became final. 31.", "On 12 May 1998 T. requested the court to resume the enforcement proceedings. On 15 July 1998 the Skopje Court of First Instance (“the first-instance court”) rejected that request as civil proceedings were pending between the parties regarding the same legal issues. On 7 October 1998 the Skopje Court of Appeal upheld T.’s appeal and quashed the lower court’s decision. 32. On 20 September 1999 the first-instance court rejected T.’s request as res judicata.", "According to the applicant, T. appealed against that decision to the Skopje Court of Appeal, but the case file was allegedly not transmitted by the first-instance court for consideration, since T. did not pay the court fees. No evidence was submitted to confirm the applicant’s allegation. 33. According to the Government, the case was archived in 2003 and destroyed in 2005. G. The seventh set of proceedings 34.", "According to the applicant, the Office (see paragraph 11 above) was ordered, on the basis of a final court decision of 1998, to transfer a certain amount of money from the account of a socially owned enterprise to T.’s account. The Office partly enforced the order, but allegedly failed to transfer interest as requested by T. Consequently, on 12 February 1999 T. requested the court to rectify the allegedly erroneous calculation of the interest by the Office. 35. On 18 February 1999 the Skopje Court of First Instance ordered an agency to draw up an expert opinion as to the calculation of interest and whether the Office had complied with the order. T. was ordered to pay the expert’s fees.", "The expert allegedly returned the case file to the court to transfer it to the Office. 36. According to the applicant, the case was never transferred to the Office, as the latter had ceased to exist and no legal successor was specified by law. 37. It would appear that the case was archived in 2005.", "The Government confirmed that the case had been archived and destroyed. The applicant did not specify the date when he learnt that the case had been archived. H. The eighth set of proceedings 38. On 3 November 1992 U. sought an enforcement order against a handcraft cooperative (градежна занаетчиска задруга) (“the debtor”). Оn 17 November 1992 the then competent court made an enforcement order.", "39. After two remittal orders were given, on 11 November 1993 the court noted that the decision of 17 November 1992 had become final in respect of the principal debt and interest (calculated until 15 October 1992) and ordered the Office to transfer the amount due into U.’s account. It further ruled that the proceedings regarding the remaining part of the interest would continue on a contentious basis. That decision was confirmed on 7 December 1993. 40.", "In the contentious proceedings, on 1 March 1994 the first-instance court upheld U.’s claim in a decision which was confirmed on appeal on 31 May 1994. On 22 December 1994 the Supreme Court upheld a legality review request (барање за заштита на законитоста) lodged by the public prosecutor and quashed those decisions. 41. At a hearing held on 9 June 1995, the applicant being the legal representative (законски застапник) of U. stated that the principal debt with interest (calculated until 15 October 1992) had been settled. On the same date, the Commercial Court dismissed as time-barred U.’s claim in respect of the remaining part of the interest.", "On 15 May 1997 the Skopje Court of Appeal upheld the lower court’s judgment. On 25 December 1998 the Supreme Court rejected an appeal on points of law lodged by U. 42. According to the applicant, in 1996 T. lodged a request for enforcement of a claim (“the first request”) established by a final judgment. As the request had allegedly been lost, on 16 May 1996 T. lodged another request for enforcement (“the second request”).", "According to the applicant, these two requests concerned the order of 17 November 1992. 43. On an unspecified date, the Commercial Court requested T. to indicate the final judgment to which the second request referred and to provide a stamp attesting that that judgment had been enforceable (потврда за извршност). T. did not comply with that request. 44.", "According to the applicant, no action has been taken since that time because the file was lost and T. was under no obligation to submit a fresh request for the third time. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Enforcement Proceedings Act of 1997 (Закон за извршната постапка) 45. In accordance with section 13 of the Enforcement Proceedings Act of 1997 (“the 1997 Act”), the provisions of the Civil Proceedings Act were applicable to enforcement proceedings, unless otherwise specified in the 1997 Act or any other law.", "46. In accordance with section 29 of the 1997 Act, the courts were required to enforce judgment debts by the means and in respect of the assets specified in the request for enforcement. 47. Section 32 provided that expenses relating to enforcement were to be covered in advance by the creditor. 48.", "Section 35 provided that a request for enforcement should specify: the creditor and debtor; the final order; the debtor’s duty; the means and assets for enforcement; and any other information necessary for completion of the enforcement. B. Civil Proceedings Act of 1998 (Закон за парничната постапка) 49. Under section 158(1) of the Civil Proceedings Act (“the 1998 Act”), as valid at the time, a court would exempt from payment of procedural costs (трошоци на постапката) a party to the proceedings who, on the basis of his or her financial status, could not bear the trial costs without causing prejudice to the necessary means of subsistence of himself or herself and his or her family. 50.", "Section 158(2) provided that the exemption from procedural costs concerned court fees and advance payment of costs regarding witnesses and experts, on-site inspections (увид) and court announcements (судски огласи). 51. Under section 158(3), the relevant court could exempt a party to the proceedings from payment of court fees (судска такса) only if the payment thereof would substantially decrease the means of subsistence of that party and the members of his or her family. C. Enforcement Act of 2005 (Закон за извршување) 52. Section 3 of the Enforcement Act of 2005 (“the 2005 Act”) provides that bailiffs (извршители) are to carry out enforcement.", "53. Enforcement proceedings instituted before the 2005 Act entered into force were to continue, until 1 July 2011, under the 1997 Act. Thereafter, the 2005 Act would apply (according to Law of 2010 amending the 2005 Act). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54.", "The applicant complained that the length of certain of the impugned sets of proceedings and the non-enforcement of final judgments in the other sets of proceedings had not complied with the “reasonable time” requirement under Article 6 of the Convention. He further alleged that the T. company had been denied the right of access to a court in the fifth and sixth sets of proceedings since the domestic law had not entitled legal entities to request exemption from trial costs and court fees. 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 ...” A. Admissibility 1. Objection of incompatibility ratione personae in respect of the first, second, third, fifth, sixth, seventh and eighth sets of proceedings 55. The Government objected that the applicant’s complaints in respect of the above-mentioned sets of proceedings were incompatible ratione personae with the provisions of the Convention.", "They argued that only U. and T., as legal entities, had been parties to the impugned proceedings, whereas the applicant had acted merely as their legal representative. 56. The applicant contested the Government’s arguments. 57. The Court reiterates that the term “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no.", "51). In the present case, the Court notes that the applicant was not a party of the relevant proceedings. It further observes that he was the sole owner and manager of T., the acquirer and, accordingly, legal successor of U. However, the applicant is the sole owner of a limited liability company and he did not present any evidence that T. had ceased to exist and that it was not able to pursue the application in its own name. Consequently, the Government’s objection must be sustained (see, a contrario, Graberska v. the former Yugoslav Republic of Macedonia (no.", "6924/03, § 41, 14 June 2007). 58. It follows that the applicant’s complaints in respect of the above proceedings are 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. Conclusion 59.", "The Court considers that the applicant’s complaint in respect of the fourth set of proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits Non-enforcement complaint in respect of the fourth set of proceedings (a) General principles 60.", "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 have been terminated by a court in accordance with the national legislation, the responsibility of the State ends (see Martinovska v. the former Yugoslav Republic of Macedonia, (dec.), no. 22731/02, 25 September 2006). (i) The parties’ submissions 61. The Government stated that the proceedings had been stayed as the applicant had failed to pay the expert’s fees (see paragraph 20 above). 62.", "The applicant contested the Government’s arguments. (ii) The Court’s assessment 63. The Court notes that the enforcement proceedings, which began in 1995, were initially launched against three individuals. By 1999 the applicant’s claim had been enforced against two of the debtors. As to the remainder of the claim, the applicant requested enforcement on 30 June 2000.", "The Court will therefore examine the applicant’s complaint in respect of the proceedings from that date. The proceedings were stayed on 8 November 2002 owing to the applicant’s failure to pay the expert’s fees. No further action was taken until 21 March 2007, when the applicant appealed against that decision. It appears that no further decision has been taken in the course of these proceedings. 64.", "The Court cannot but conclude that the applicant’s claim of 30 June 2000 has not yet been enforced. 65. The Court observes that the applicant did not show any active interest in the outcome of the proceedings from 2001 to 2007 (see paragraphs 19-20 above). 66. Notwithstanding the above, having regard to all the circumstances of the case, the Court considers that by refraining from taking adequate and effective measures to enforce the remainder of the applicant’s claim, the domestic courts deprived the provisions of Article 6 § 1 of the Convention of all useful effect (see Kalanoski v. the former Yugoslav Republic of Macedonia, no.", "31391/03, §§ 26-27, 17 December 2009). 67. There has therefore been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 68.", "The applicant further complained that T. had been discriminated against in the fifth and sixth sets of proceedings, as the domestic law had provided for different rules for legal and natural persons concerning exemption from court fees. 69. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 70. The Court observes that the applicant failed to lodge a constitutional complaint with the Constitutional Court alleging discriminatory treatment, although under national law that court has full jurisdiction to deal with complaints filed by any individual who claims to be the victim of a violation of the very same rights and freedoms of which the applicant now alleges a violation before the Court (see, mutatis mutandis, Šijakova and others v. the former Yugoslav Republic of Macedonia (dec.), no. 67914/01, § 2, 6 March 2003).", "71. It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 73. The applicant claimed 89,660 euros (EUR) in respect of pecuniary damage concerning all the impugned sets of proceedings. This figure corresponded to his lost income and to the amount awarded in the substantive proceedings, together with interest. He also claimed a global sum of EUR 96,000 in respect of non-pecuniary damage for the emotional suffering resulting from the ineffectiveness of the domestic proceedings. 74.", "The Government contested these claims. 75. The Court notes that in respect of the fourth set of proceedings, the applicant did not submit any evidence that the debtor, a private individual, had sufficient funds to honour his claim. The Court therefore rejects the claim under this head. 76.", "The Court finds, however, that the applicant must have suffered non-pecuniary damage on account of the violation found. Ruling on an equitable basis, it awards him EUR 600 under this head. B. Costs and expenses 77. The applicant also claimed EUR 3,202 for the costs and expenses incurred before the domestic courts.", "He did not make any claim in respect of the costs and expenses incurred before the Court. 78. The Government contested the claim. 79. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation found, and are reasonable as to quantum, are recoverable under Article 41 (see Kyrtatos v. Greece, no.", "41666/98, § 62, ECHR 2003‑VI). As to the applicant’s request for reimbursement of the costs incurred in the proceedings before the domestic courts, the Court notes that such costs were not incurred in order to seek, through the domestic legal order, the prevention of and redress for the violations alleged 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). C. Default interest 80.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the lengthy non-enforcement of a final judgment in the fourth 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 in respect of the fourth set of proceedings; 3. Holds (a) that the respondent State is to pay the applicant within three months from the date of the present judgment, EUR 600 (six 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 24 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsZdravka Kalaydjieva Deputy Registrar President" ]
[ "FOURTH SECTION CASE OF LIATUKAS v. LITHUANIA (Application no. 27376/11) JUDGMENT STRASBOURG 24 January 2017 FINAL 24/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Liatukas v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 5 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 27376/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Vygandas Liatukas (“the applicant”), on 7 April 2011. 2. The applicant, who had been granted legal aid, was represented by Mr R. Šimkus, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.", "3. The applicant complained under Article 6 § 1 of the Convention that domestic courts in civil proceedings had admitted the other party’s appeal, even though that appeal had not been lodged in accordance with procedural rules, and had upheld that appeal to the applicant’s detriment. 4. On 24 February 2016 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Kaunas. A. Civil proceedings concerning the applicant’s inheritance 6. In March 2008 the applicant’s mother passed away.", "At the time of her death, her estate consisted of an apartment, a car, and cash savings of 6,360 Lithuanian litai (LTL, approximately 1,842 euros (EUR)). In her will she left half of the apartment to the applicant’s niece and the remaining property to the applicant and his sister in equal parts. On 27 May 2008 the applicant renounced his part of the inheritance (see paragraph 20 below). 7. In September 2008 V.L.", "brought a claim against the applicant before the Kaunas District Court. V.L. submitted that the applicant owed her LTL 14,488 (approximately EUR 4,196) in maintenance payments for their son which he had not paid because he had been insolvent. V.L. argued that by renouncing his part of the inheritance the applicant had violated her rights as a creditor because the inherited property could have been used to cover the applicant’s debt.", "V.L. therefore invoked Article 6.66 of the Civil Code (see paragraph 23 below) and asked the court to annul the renouncement as being contrary to the interests of the applicant’s creditors. She also asked the court to recognise that the applicant had de facto accepted the inheritance because he had been using his mother’s estate since her death (see paragraph 21 below). 8. In October 2008 a similar claim under Article 6.66 of the Civil Code was brought by D.L.", "She submitted that the applicant had been under an obligation to pay her maintenance and that he owed her LTL 8,734 (approximately EUR 2,530). D.L. asked the court to annul the applicant’s renouncement of the inheritance and to recognise that he had de facto accepted it. In March 2009 the Kaunas District Court decided to examine V.L.’s and D.L.’s claims together. 9.", "The Kaunas District Court held an oral hearing on 11 November 2009 in which the applicant and both claimants were present. The applicant argued that he had renounced his part of the inheritance for the benefit of his sister who had paid all the expenses of their mother’s funeral. The applicant also submitted that his sister and niece had accepted the entire inheritance and that he had not used any of the property belonging to his late mother’s estate. 10. On 25 November 2009 the Kaunas District Court partly upheld V.L.’s and D.L.’s claims.", "It held that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to the claimants. Accordingly, the court annulled the renouncement on the grounds that it violated the interests of the applicant’s creditors (see paragraph 23 below). However, the court held that there was insufficient evidence to find that the applicant had de facto accepted the inheritance and dismissed that part of the claim. 11. The applicant appealed against that judgment.", "D.L. also appealed but the Kaunas District Court refused to accept her appeal for examination because of formal deficiencies – D.L. had asked to be completely exempted from paying court fees on the grounds that she was disabled and had a low income, but domestic law allowed only for partial exemptions (see paragraph 24 below). D.L. was given ten days to correct the deficiencies in her appeal.", "On 28 January 2010 the Kaunas District Court held that D.L. had not submitted a corrected appeal within that time-limit so it considered that she had not appealed (see paragraph 25 below). However, on 1 February 2010 the Kaunas District Court referred both the applicant’s and D.L.’s appeals to the Kaunas Regional Court. 12. On 3 February 2010 the applicant received notice from the Kaunas District Court that the civil case and both his and D.L.’s appeals had been referred to the Kaunas Regional Court, and he was asked to submit a reply to D.L.’s appeal within twenty days.", "However, a copy of D.L.’s appeal was not enclosed. The applicant sent a letter to the Kaunas Regional Court requesting a copy of the appeal. He received it on 10 April 2010 and submitted a reply on 16 April 2010. 13. Subsequently the applicant asked the Kaunas Regional Court to proceed with the examination of the case in his absence – the applicant stated that he had presented all his arguments in his appeal and in his reply to D.L.’s appeal and had nothing else to add.", "On 15 September 2010 the Kaunas Regional Court held an oral hearing from which the applicant and D.L. were absent but where D.L.’s lawyer was present. 14. By a judgment of 29 September 2010 the Kaunas Regional Court dismissed the applicant’s appeal and upheld D.L.’s appeal. The court upheld the findings of the first-instance judgment that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to his creditors (see paragraph 10 above).", "The Kaunas Regional Court also found that since his mother’s death the applicant had been using the car previously owned by her and on that basis the court concluded that the applicant had de facto accepted the inheritance (see paragraph 21 below). 15. The applicant submitted an appeal on points of law but on 27 December 2010 the Supreme Court refused to examine it as raising no important legal questions. 16. In March 2011 D.L.", "brought a new claim against the applicant and his sister. D.L. submitted that although the court in previous proceedings had acknowledged that the applicant had de facto accepted the inheritance (see paragraph 14 above), the applicant had not formally completed that acceptance and his sister had remained the official heir to their mother’s estate. D.L. asked the court to annul the applicant’s sister’s rights to one half of the inheritance and to recognise the applicant’s rights to that property.", "17. On 5 March 2012 the Kaunas District Court dismissed D.L.’s claim. The court found that the total value of the applicant’s mother’s estate (the car and the savings) had been LTL 6,860 (approximately EUR 1,987), and that the applicant’s sister had spent LTL 7,817 (approximately EUR 2,264) on their mother’s funeral. In line with domestic law, an heir had the right to cover funeral expenses from a deceased person’s estate before formally accepting the inheritance (see paragraph 22 below). On that basis, the Kaunas District Court held that the applicant’s sister had not inherited any property which could have been used to cover the applicant’s debt to D.L., and thus there were no legal grounds to satisfy D.L.’s claim.", "That judgment was not appealed against and became final. B. Related proceedings brought by the applicant 18. In March 2011 the applicant submitted a complaint to the Commission on Judicial Ethics and Discipline concerning the judge of the Kaunas District Court who had examined the civil case (see paragraph 10 above). He complained that the judge had acted in abuse of office by referring D.L.’s appeal to the Kaunas Regional Court because that appeal had not been submitted in accordance with procedural rules (see paragraph 11 above).", "On 8 June 2011 the Commission dismissed the applicant’s complaint. It held that although the judge had been “insufficiently attentive” and had referred D.L.’s appeal to the Kaunas Regional Court by mistake, that mistake had not been so grave as to constitute abuse of office. 19. In August 2011 the applicant petitioned the Prosecutor General to investigate the actions of the judges of the Kaunas District Court and the Kaunas Regional Court. On 30 September 2011 the prosecutor’s office denied the applicant’s request on the grounds that no crime appeared to have been committed.", "The prosecutor’s decision was subsequently upheld by the courts. II. RELEVANT DOMESTIC LAW A. Inheritance 20. Article 5.50 § 1 of the Civil Code provides that in order to acquire rights to a deceased person’s estate the heir has to accept the inheritance. Article 5.60 § 1 provides that the heir has the right to renounce the inheritance within three months of its arising.", "21. Article 5.50 § 2 of the Civil Code provides that one of the ways for an heir to accept an inheritance is to start de facto managing the estate. Article 5.51 § 1 provides that an heir is considered as having accepted an inheritance if he or she has started to manage the estate and take care of it as his or her own property; when the heir has started managing part of the estate or even a single article, he or she is considered as having accepted the entire inheritance. 22. Article 5.59 § 2 (1) of the Civil Code provides that an heir who has started managing the estate before obtaining an official certificate of inheritance has the right to use the estate for covering the deceased’s funeral expenses.", "B. Creditor’s right to challenge a debtor’s transactions 23. Article 6.66 § 1 of the Civil Code provides that a creditor has the right to challenge a transaction made by a debtor, where the debtor was not obliged to enter into such a transaction and where that transaction violates the creditor’s rights and the debtor knew or ought to have known that. A creditor’s rights shall be considered to have been violated if by such a transaction the debtor renders himself or herself insolvent, or by which, being insolvent, he or she grants preference to another creditor, or the creditor’s rights are infringed in any other way. C. Civil proceedings 24. Article 83 § 3 of the Code of Civil Proceedings provides that a court may, at the claimant’s request and taking into account his or her financial situation, grant the claimant a partial exemption from court fees.", "25. Article 316 § 1 of the Code of Civil Proceedings provides that when an appeal does not comply with the formal requirements provided in the Code, the court orders the appellant to correct the deficiencies within a certain time-limit. Article 316 § 2 provides that when the appellant does not submit a corrected appeal within that time-limit, it is considered that the appeal has not been submitted. 26. Article 320 § 2 of the Code of Civil Proceedings provides that the appellate court must examine the case within the limits of the appeal, except in cases where the public interest demands otherwise.", "27. Article 313 of the Code of Civil Proceedings provides that where only one of the parties submits an appeal, the appellate court may not adopt a judgment which is worse for the appellant than the judgment of the first‑instance court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant complained that the domestic courts had accepted D.L.’s appeal in civil proceedings, even though it had not been lodged in accordance with the procedural rules, and had upheld that appeal to his detriment.", "He relied on Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 30. The applicant complained that the domestic courts had breached the principle of equality of arms by accepting and examining D.L.’s appeal and by upholding that appeal to his detriment, despite the fact that it had not been lodged in accordance with domestic procedural rules. He submitted that the courts had not provided any justification for accepting D.L.’s appeal and that there had been no grounds to consider that examining that appeal, despite its formal deficiencies, had been in the public interest (see paragraph 26 above). (b) The Government 31.", "The Government argued that the civil proceedings instituted by the applicant’s creditors had been fair as a whole, as required by Article 6 § 1 of the Convention. They submitted that D.L.’s appeal had been referred to the Kaunas Regional Court as a result of “a clerical error”. However, the applicant had had the opportunity to reply to that appeal, and thus the principle of equality of arms had been respected. The Government further stated that the applicant had been able to submit written observations at all stages of the proceedings, had been duly notified of court hearings and had freely waived his right to participate in them, and that domestic courts had adopted fair and reasoned judgments. 32.", "The Government further submitted that the domestic courts had also been under an obligation to protect D.L.’s access to court, and while doing so they should not have been expected to apply procedural rules in an overly formalistic manner. The Government argued that the applicant’s debt to D.L. had arisen from a maintenance obligation and that protecting D.L. against the applicant’s unilateral decision to renounce his inheritance had been in the public interest, so even if her appeal had not been accepted for examination, domestic law would have permitted the Kaunas Regional Court to adopt a judgment in her favour in protection of the public interest (see paragraph 26 above). 2.", "The Court’s assessment 33. Turning to the circumstances of the present case, it is not disputed that D.L.’s appeal had not been lodged in accordance with domestic procedural rules (see paragraph 11 above). The Government submitted that, on the one hand, that appeal had been referred for examination before the appellate court because of “a clerical error” (see paragraph 31 above) and, on the other hand, that its examination had been justified by the public interest (see paragraph 32 above). In this respect the Court agrees with the applicant that the Kaunas Regional Court, which examined the case on appeal, did not mention either the public interest or any other reason for examining D.L.’s appeal despite its formal deficiencies (see paragraphs 14 and 30 above). Indeed, it appears that the Kaunas Regional Court was not aware of any reasons why the appeal should not have been accepted for examination.", "In such circumstances, the Court is more inclined to accept the Government’s first submission that D.L.’s appeal was referred to the Kaunas Regional Court by mistake. 34. In that connection, the Court reiterates that 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 (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190, ECHR 2006‑V, and Bochan v. Ukraine (no.", "2) [GC], no. 22251/08, § 61, ECHR 2015). In previous cases the Court has found a violation of Article 6 § 1 where domestic courts committed “a manifest error of assessment” (see Dulaurans v. France, no. 34553/97, § 34, 21 March 2000), where decisions by domestic courts could be regarded as “grossly arbitrary” (see Khamidov v. Russia, no. 72118/01, § 174, 15 November 2007, and Bochan, cited above, § 64), or where such decisions amounted to a “denial of justice” (see Anđelković v. Serbia, no.", "1401/08, § 27, 9 April 2013). 35. In the present case, the Court cannot disregard the fact that the appeal submitted by D.L. formed the foundation for the appellate proceedings which resulted in a judgment that was to the applicant’s detriment (see paragraphs 11 and 14 above). At the same time, the Court observes that D.L.’s appeal was communicated to the applicant and that he had an opportunity to reply to it (see paragraph 12 above).", "Contrary to the applicant’s submissions, the foregoing means that there are therefore no grounds to find that the principle of equality of arms was disregarded (see paragraph 30 above, and compare and contrast Gürkan v. Turkey, no. 1154/04, §§ 34-35, 29 March 2011). The applicant did not allege that the civil proceedings were unfair for any other reason, and the Court, having examined the material submitted to it, sees no grounds to hold otherwise. Having regard to the proceedings taken as a whole, the Court is of the view that the error committed by the domestic courts was not so significant as to make the proceedings arbitrary or to result in a denial of justice, and that in any event it was counterbalanced by granting the applicant sufficient opportunity to become acquainted with D.L.’s appeal and to comment on it. 36.", "The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 24 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliAndrás SajóRegistrarPresident" ]
[ "FOURTH SECTION CASE OF MIKOLAJOVÁ v. SLOVAKIA (Application no. 4479/03) JUDGMENT STRASBOURG 18 January 2011 FINAL 18/04/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mikolajová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Mihai Poalelungi, judges,and Fatoş Aracı, 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.", "4479/03) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mrs Helena Mikolajová (“the applicant”), on 17 January 2003. 2. The applicant was represented by Mrs I. Rajtáková, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by Mrs A. Poláčková and Mrs M. Pirošíková, their successive Agents. 3.", "The applicant complained that the conclusion in a police decision that she had committed a criminal offence, despite the complaint against her having been dropped, breached her right to the presumption of innocence under Article 6 § 2 of the Convention and her right to protection of her reputation under Article 8. 4. On 27 March 2006 the President of the Fourth Section of the Court to which the case had been allocated decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Košice. 6. On 30 June 2000 the applicant's husband filed a complaint with the police alleging that the applicant had beaten and wounded him on 25 June 2000. 7.", "On 3 July 2000 the police department in Košice issued a decision by which it dropped the case on the ground that the applicant's husband did not agree to criminal proceedings being brought against her. The decision stated that although the police “investigation” had established that the applicant had committed a criminal offence, criminal prosecution was barred as the victim, the applicant's husband, had not given his consent as required under Article 163 of the Criminal Procedure Code. The applicant was not notified of this decision, nor is there any evidence in the case file that she was questioned or otherwise made aware of her husband's complaint. 8. On 28 January 2002 a health insurance company wrote to the applicant asking her to reimburse the costs of her husband's medical treatment.", "According to the letter, the applicant's husband had been treated in a hospital on 25 June 2000 as a result of injuries which the applicant had inflicted on him. Reference was made, inter alia, to the decision issued by the police department in Košice on 3 July 2000. 9. In a letter dated 3 July 2002 the insurance company explained the position to the applicant in reply to her request. A copy of the police decision of 3 July 2000 was enclosed with the letter which was delivered to the applicant's lawyer on 15 July 2002.", "The relevant part of the decision of 3 July 2000 read as follows: “The investigation showed that [the applicant's] action met the constituent elements of the offence of causing injury to health pursuant to Article 221(1) of the Criminal Code in that she had deliberately inflicted an injury on another person.” 10. On 16 July 2002 the applicant informed the competent police department in Košice that the text of its decision violated her right to be presumed innocent. She requested an apology and that the police inform the health insurance company of this breach. On 9 August 2002 the director of the police department replied to the applicant, stating that the above decision had been given in accordance with the relevant law. 11.", "In a letter of 17 July 2002 the applicant requested that the Košice II District Prosecutor's Office quash the police decision of 3 July 2000. On 26 August 2002 the applicant was informed that the decision was not contrary to constitutional principles. The letter stated, in particular, that the task of the police had been to determine whether a justified reason existed to consider that a particular person had committed the offence in issue. The relevant text of the contested decision had been drafted and was to be read in that context. 12.", "On 12 September 2002 the applicant filed a complaint with the Constitutional Court. She alleged, inter alia, that by issuing its decision of 3 July 2000, the police department in Košice had violated her constitutional rights to be presumed innocent and to respect for her honour and reputation. 13. On 27 November 2002 the Constitutional Court rejected the complaint as having been filed outside the statutory two month time-limit. The decision referred to section 53 (3) of the Constitutional Court Act of 1993, which provided that the time-limit was to be counted from the day on which the plaintiff learned or could have learned about the contested measure.", "In rejecting the applicant's complaint as out of time, the Constitutional Court took 3 July 2000, the date on which the police decision was issued, as the key date. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Slovak Republic 14. Article 50 § 2 of the Slovak Constitution provides that “Every defendant against whom criminal proceedings are pending shall be considered innocent until the court establishes his/her guilt by a final judgment.” B.", "Criminal Procedure Code (Act No. 141/1961 Coll.) 15. The Criminal Procedure Code, as in force at the relevant time, provided as follows at Article 2 § 2: “A defendant against whom criminal proceedings have been instituted must not be considered guilty until the court establishes his/her guilt by a final judgment.” 16. Article 163 (a) (1) required the victim's consent for a criminal prosecution to be pursued for a listed number of offences, including the offence of causing bodily injury, in cases in which the perpetrator was a relative of the victim.", "17. Article 11 § 1 (h) provided that a criminal prosecution could not be initiated, and if already initiated, could not be continued and had to be discontinued, in the event that consent as required under Article 163 (a) (1) was not given or subsequently withdrawn. C. Civil Code 18. The Civil Code in its relevant provisions reads as follows: Article 11 “Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, reputation and expressions of a personal nature.” Article 13 “1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.", "2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party's dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non‑pecuniary damage. 3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.” Article 16 “A person who caused damage by infringement of the right to protection of personal integrity, shall be liable for such damage under provisions of this law on liability for damage.” D. Civil Procedure Code 19. Article 134 of the Civil Procedure Code provides the following: “Letters issued by the courts of the Slovak Republic or by other state authorities within the limits of their powers, as well as letters which were declared public upon special regulation, confirm that it is an order or declaration of an authority which issued the letter, and unless the contrary is proved, also the verity of what is to be approved or confirmed therein.” E. Constitutional Court Act 1993 20.", "Section 53 (3) of the Constitutional Court Act of 1993 provides that a complaint to the Constitutional Court can be filed within two months from the final effect of a decision or from the date of a contested measure or notification of another interference with a person's rights. In the case of measures or other interferences, the time-limit is to be counted from the date on which the plaintiff learned or could have learned about the contested measure or other interference complained of. Section 50 (2) provides that a copy of the legal decision, measure or any evidence proving another kind of interference shall accompany a complaint. THE LAW I.ADMISSIBILITY A.The Government's preliminary objection 1. The parties' submissions 21.", "The Government maintained that the application was inadmissible as the applicant had failed to exhaust all available domestic remedies. In particular, she had not pursued an action for the protection of her personal integrity under Articles 11 et seq. of the Civil Code. They relied on the Court's inadmissibility decision in the case of Babjak and Others v. Slovakia (dec.), no.73693/01, 30 March 2004 in which the Court found the first applicant's complaint under Article 6 § 2 of the Convention to be inadmissible for non–exhaustion as it considered that an action under Articles 11 et seq. of the Civil Code was, in the circumstances, capable of redressing his situation.", "22. The Government acknowledged that although Babjak concerned a police decision stating that the applicant had committed a criminal offence, though a criminal prosecution could not be pursued against him due to his young age, in that case the police had issued a later decision clarifying that his conduct had not met the constituent elements of a criminal offence. Notwithstanding, the Government maintained that in the present case an action under Articles 11 et seq. of the Civil Code was also an available and effective domestic remedy. An ordinary court dealing with such an action would examine whether the statement by the police infringed the applicant's right to be presumed innocent and her right to respect for her private life, given that no criminal prosecution had been initiated and that the courts had not pronounced either way on her guilt or innocence.", "In the event that the ordinary court considered that the applicant's rights had been breached, it was open to it to order the police to issue an apology and/or award the applicant financial compensation for any non-pecuniary damage caused to her as a result. In particular, the applicant could have relied on the request for reimbursement of the costs of her husband's medical treatment as the basis for her action. 23. The Court had not accepted the effectiveness of this particular remedy in the context of other applications against Slovakia, finding that judicial practice showed that the remedy was used predominantly in defamation actions (see Kontrová v. Slovakia (dec.), no. 7510/04, 13 June 2006).", "However, the Government argued that in cases more akin to the present, the Court had deemed the remedy to be effective and one which applicants should consequently be required to exhaust (Babjak (cited above) and Lexa v. Slovakia (dec.), no. 54334/00, 5 July 2005). 24. Lastly, as regards the applicant's contention that she only received a copy of the police decision on 15 July 2002, the Government asserted that she should have been aware of the decision in question by 28 January 2002, as the insurance company had made a direct reference to it in its request for reimbursement of that date. The applicant had therefore failed to avail herself of this available domestic remedy, the filing of a complaint with the Constitutional Court, as she had not complied with the time-limits laid down in domestic law.", "25. The applicant asserted that a civil action under Articles 11 et seq. of the Civil Code would not allow her to reverse the impugned decision. The case of Babjak on which the Government sought to rely contained a crucial distinction, namely that the original police decision had been replaced by a later official decision unequivocally declaring that it had not been proved that the applicant had committed any crime. 26.", "The applicant replied that the police decision had clearly been delivered to her on 15 July 2002. Consequently, she had been within the two-month statutory time-limit required under section 53 (3) of the Constitutional Court Act of 1993 (see paragraph 20 above) when filing her complaint with the Constitutional Court on 12 September 2002. She contested the Government's assertion that the reference to the police decision by the insurance company on 28 January 2002 was enough for her to bring a complaint to the Constitutional Court. She contended that she had no knowledge of the specific content of the decision and cited in this regard the requirement under section 50 (2) of the Constitutional Court Act that a copy of the contested decision be attached to any complaint. 27.", "The Government, by their own admission, had recognised that the applicant did not have any procedural status as regards her husband's complaint, as criminal proceedings had never been instituted. This, she argued, would have made it all the more difficult for her to have gained knowledge or possession of a copy of the contested police decision any earlier. Moreover, the Constitutional Court, when rejecting her complaint as out of time, had taken the date of the issuance of the police decision, namely 3 July 2000, as the key date. This ran counter to the provision in section 53 (3) of the Constitutional Court Act which stipulated that the time‑limit was to be counted from the date on which the plaintiff learned or could have learned about the contested measure or other interference complained of. 2.", "The Court's assessment 28. The Court points out that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and which, at the same time, are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no.", "25803/94, §§ 74 and 75, ECHR 1999-V, among other authorities). 29. Article 35 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 complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 68). 30.", "The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, Series A no. 200, § 34). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, Series A no. 40, § 35).", "This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69 and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, §§ 69-70, ECHR 2010‑...). 31. Turning to the present case, the Court notes the Government's reliance on the inadmissibility decision in the case of Babjak (cited above), in which it held that a civil action under Articles 11 et seq. of the Slovakian Civil Code was in principle capable of remedying the first applicant's situation.", "In Babjak, a police decision had similarly stated that the applicant had committed a criminal act, even though no criminal proceedings had been instituted against him due to his lacking criminal responsibility on account of his young age. Notwithstanding, the Court considers it to be of crucial importance that although the impugned decision in Babjak was never quashed, it was nevertheless supplanted by a later police decision which unequivocally clarified that it had not been established that the applicant's actions had constituted a criminal offence. In the Court's view, this is sufficient to distinguish the facts of the present case from those of the Babjak decision on which the respondent Government seek to rely. In this respect, it is clear that an action under Articles 11 et seq. of the Civil Code, allows for non-pecuniary compensation in the event that an “injured party's dignity or social standing has been considerably diminished” (see paragraph 18 above).", "It has not been shown however that any action under the Civil Code would have allowed the present applicant an opportunity to seek a subsequent official retraction and clarification from the police that it had never been proved that she had committed a criminal act, as had been afforded to the applicant in Babjak. 32. Moreover, the Court considers it highly unlikely that the civil courts, when exercising their jurisdiction in the context of proceedings for compensation under the Civil Code, would review the substance of police decisions which were issued in the course of criminal complaints or proceedings, regardless of whether they were ultimately dropped or discontinued. In this connection, the Court recalls its judgment in the case of Borovský v. Slovakia, no. 24528/02, 2 June 2009 which concerned the right to be presumed innocent under Article 6 § 2 of the Convention.", "The Court dismissed the Government's objection in Borovský that the applicant had failed to exhaust domestic remedies by omitting to pursue an action under Articles 11 et seq. of the Civil Code for protection of his personal integrity. In declaring the application admissible, the Court noted at paragraph 39 of its judgment that the Constitutional Court had addressed the merits of that applicant's complaint even though he had not first pursued an action under the Civil Code against the police officers whom he alleged had violated his right to be presumed innocent. Given the domestic legal obligation to use all other available remedies prior to lodging a complaint with the Constitutional Court, the Court found that the Government's objection in Borovský as to non‑exhaustion could not be upheld. 33.", "In light of the aforementioned considerations, the Court takes the view that its finding in Babjak does not bind it in its consideration of the effectiveness of a civil action under Articles 11 et seq. of the Civil Code in the particular context and circumstances of the instant case. In this connection, the Court recalls that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999, Okkalı v. Turkey, no.", "52067/99, § 60, ECHR 2006‑XII (extracts) and Lazoroski v. “the former Yugoslav Republic of Macedonia”, no. 4922/04, § 37, 8 October 2009, among other authorities). The Court considers that in the particular circumstances of the present case the applicant cannot be reproached for having lodged a complaint with the Constitutional Court alleging a violation of her constitutional rights to be presumed innocent and to respect for her honour and reputation. It notes, in this respect, that this was the course of action pursued by the applicant in the Borovský case, which ultimately led to the Court rejecting the Government's preliminary objection as to non-exhaustion of domestic remedies. The Court further observes that in the present case, the Constitutional Court made no reference to any failure on the applicant's part to exhaust all other available remedies first, but rather dismissed her complaints on the sole ground that they were out of time.", "34. The Court accordingly finds that the Government have failed to show, with reference to demonstrably established consistent case-law in cases similar to the applicant's, that their interpretation of the scope of the action for protection of personal integrity was, at the material time, sufficiently certain not only in theory but also in practice and offered at least some prospects of success. 35. As regards the Government's contention that the applicant should be taken to have been aware of the police decision as of 28 January 2002, when the health insurance company referred to it in its request for reimbursement, the Court observes that under the applicable domestic law the applicant was required to enclose a copy of the contested decision together with any complaint she wished to make to the Constitutional Court (see paragraph 20 above, as relied on by the applicant). In the Court's view, the applicant could not reasonably have been expected to lodge a complaint with the Constitutional Court before having in her possession the full text of the police decision in question, which was eventually delivered to her on 15 July 2002.", "It also takes into account in this connection the acknowledgment by the Government that the applicant did not have any procedural status as regards her husband's complaint, as criminal proceedings against her had never been instituted. The Court is willing to accept the applicant's contention that this made it even more difficult in the circumstances for her to have lodged a complaint with the Constitutional Court any earlier. 36. The Government's objection as to the exhaustion of domestic remedies therefore cannot be sustained. B.Compliance with other admissibility criteria 1.The complaint under Article 6 § 2 of the Convention 37.", "The applicant complained that the conclusion in the police decision of 3 July 2000 violated her right to be presumed innocent under Article 6 § 2 of the Convention which reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” (a) The parties' submissions 38. The applicant maintained that the police decision in question was an official decision emanating from a State authority which purported to confirm that she had committed a crime, whereas criminal proceedings had never been brought against her. This constituted a breach of her rights under Article 6 & 2 of the Convention, as well as the provisions of the Constitution of the Slovak Republic and the domestic Code of Criminal Procedure (see paragraphs 14 and 15 above). 39. The Government did not explicitly contest the applicability of Article 6 of the Convention.", "They rather argued that the text of the police decision reflected a state of suspicion that the applicant had committed a criminal offence and could not in the circumstances be considered to be a statement of fact or opinion, since it was issued prior to the initiation of any criminal prosecution. Moreover, a criminal prosecution had not been possible under the applicable domestic law as the applicant's husband had not given his consent as required under Article 163 (a) (1) of the Criminal Procedure Code (see paragraph 16 above). (b) The Court's assessment 40. The Court must consider whether Article 6 of the Convention applies in the instant case. It must examine whether the applicant was the subject of a “charge” for the purposes of Article 6 § 2 of the Convention.", "That concept is “autonomous”; it has to be understood within the meaning of the Convention and not solely within its meaning in domestic law. It may thus be defined as “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, for example, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 22, § 42, and p. 24, § 46; and the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 33, § 73, cited in Serves v. France, 20 October 1997, § 42, Reports of Judgments and Decisions 1997‑VI). A “charge” may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see Foti and Others v. Italy, 10 December 1982, § 52, Series A no.", "56). 41. The legislation of the State concerned is certainly relevant, but it provides no more than a starting point in ascertaining whether at any time there was a \"criminal charge\" against the applicant (see, mutatis mutandis, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 35, § 82, and the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 30, § 89).", "The prominent place held in a democratic society by the right to a fair trial favours a \"substantive\", rather than a \"formal\", conception of the \"charge\" referred to by Article 6; it impels the Court to look behind the appearances and examine the realities of the procedure in question in order to determine whether there has been a \"charge\" within the meaning of Article 6 (see the above-mentioned Deweer judgment, p. 23, § 44). In particular, the applicant's situation under the domestic legal rules in force has to be examined in the light of the object and purpose of Article 6, namely the protection of the rights of the defence (see the Court's judgment in the case of Adolf v. Austria, 26 March 1982, § 30, Series A no. 49). 42. In the present case, the applicant was not and could not have been formally charged with a criminal offence under the domestic legal rules in place at the time, as her husband clearly did not consent to the pursuit of criminal proceedings against her.", "Notwithstanding, the Court must still consider whether the applicant could be said to have been officially notified or otherwise “substantially affected” following her husband's filing of a criminal complaint against her on 30 June 2000. The Court observes in this connection that the applicant was not aware of the impugned police decision until 28 January 2002, when a health insurance company made reference to it in its claim for reimbursement of medical expenses. This was approximately one year and a half after the case against the applicant had been dropped by the Košice police department on the basis of her husband's refusal to consent to the pursuit of criminal proceedings against her. In other words, it appears that the applicant's husband in effect withdrew his complaint concerning the applicant's alleged behaviour on 25 June 2000, thereby barring the initiation of a criminal prosecution. Nor does it emerge from any of the documents in the case file that the applicant was questioned, summoned or in any other way notified by the police or any other domestic authority of her husband's complaint of 30 June 2000.", "Rather, the applicant submits that she first became aware of this complaint through the health insurance company's request in 2002, by which time the case against her had been dropped and closed. 43. In light of the foregoing, the Court considers that the applicant was not “substantially affected” so as to render Article 6 of the Convention applicable. In the Court's view, Article 6 § 2 was inapplicable to the matters complained of. Accordingly, this part of the application must be declared inadmissible as being incompatible ratione materiae under Article 35 §§ 3 and 4 with the provisions of the Convention.", "44. However, the conclusion above does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65 and A. v. Norway, no. 28070/06, § 47, 9 April 2009). 2.The complaint under Article 8 of the Convention 45.", "The applicant complained that her right to respect for her private life and to the protection of her reputation under Article 8 of the Convention had been breached as a result of the police decision of 3 July 2000. 46. The Government disputed the applicant's complaint and requested the Court to declare it inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. 47. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. With reference to the same facts as her complaint under Article 6 § 2 of the Convention, the applicant complained of a violation of her right to protection of reputation under Article 8 of the Convention.", "This article reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties' submissions 1.", "The applicant 49. The applicant asserted that the police decision of 3 July 2000 clearly stated and not merely expressed a suspicion that she had committed a criminal offence. She referred in this regard to Article 134 of the Civil Procedure Code (see paragraph 19 above) which provided that letters issued by State authorities were to be taken as proof of the “verity of what is...confirmed therein.” 50. The applicant further stressed that the impugned police decision was a valid official decision which was neither subsequently quashed nor replaced by any other statement. By contrast, in the case of Babjak, on which the Government sought to rely in its preliminary objection, the original police decision stating that the applicant had committed a crime had been followed by an official statement unequivocally clarifying that it had not been proved that the applicant had been guilty of any crime.", "This distinction was essential, as the Court had emphasised in its decision in Babjak, in which it held that: “The Court has also taken account of the above decision ... in which the Police expressly stated that it had not been established that the actions of the first applicant had constituted a criminal offence. Although this second decision did not expressly quash the first one, the Court observes that it was given by the same police authority ... under the same file number. The contested decision ... thus lost its legal effect. It can no longer by invoked by anyone.” 51. The applicant maintained that she had been branded a criminal and had no guarantee that the police decision would not be used against her again in the future.", "2.The Government 52. The Government submitted that the applicant had failed to substantiate her complaint under Article 8 of the Convention by specifying any particular consequences that the police decision had had on her private life. Moreover, the police decision predominantly consisted of allegations made by the applicant's husband. The applicant had not shown that she had attempted to contest these allegations domestically, for example, by filing an action under Articles 11 et. seq.", "of the Civil Code, or by a criminal complaint against her husband on the grounds of false accusation. Nor had the applicant claimed before the Court that her husband's allegations were false. B. The Court's Assessment 1. General principles 53.", "The Court recalls its judgment in the case of Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI, where in the context of a complaint under Article 10, it explicitly recognised for the first time “the right of the persons ... to protect their reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life.” This was confirmed in Pfeifer v. Austria, no. 12556/03, § 38, ECHR 2007‑XII where the Court held that States were under a positive obligation to protect individuals' right to reputation, as an element of their “private life” under Article 8 of the Convention. 54. In Sanchez Cardenas v. Norway, no.", "12148/03, § § 33 and 38, 4 October 2007 the Court found that a passage in a domestic judgment which “conveyed information to the effect that the High Court, having regard to the state of the evidence, held a suspicion that the applicant had sexually abused” his son, was in the context of an authoritative judicial ruling “likely to carry great significance by the way it stigmatised him and was capable of having a major impact on his personal situation as well as his honour and reputation.” Consequently, the Court took the view that the facts underlying the applicant's complaint fell within the scope of Article 8 of the Convention. 55. The Court explained its approach to such cases in its judgment in A. v. Norway, no. 28070/06, § 64, 9 April 2009, holding that in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004‑VIII).", "Similarly, in Karakó v. Hungary, no. 39311/05, § 23, 28 April 2009 the Court considered that reputation had been deemed to be an independent right mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant's private life. This has been more recently confirmed by the Court in its judgment in the case of Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010 (not yet final). 2.Application of these principles 56.", "The Court notes that the present application is distinguishable from the cases to which it has referred above concerning the right to the protection of one's reputation under Article 8 of the Convention. It is clear that the impugned police decision was not published or made readily accessible to the public through the media or in the context of a public decision or judgment (as was the case in A. v. Norway and Sanchez Cardenas v. Norway, cited above, respectively). Notwithstanding, the police decision was ostensibly disclosed to a third party, namely the health insurance company. They in turn used the decision to the applicant's detriment, by relying on it when pursuing her for the reimbursement of medical expenses. 57.", "Given the gravity of the conclusion contained in the police decision, namely that the applicant was guilty of a violent criminal offence, coupled with the uncontested disclosure of the impugned decision to a third party, the Court finds that there has been an “interference” with her rights under Article 8 of the Convention. In this connection, the Court recalls, mutatis mutandis, its judgment in the case of Sidabras and Džiautas (cited above) where it held at paragraph 49 that Article 8 could not be relied on in order to complain of a loss of reputation which was the foreseeable consequence of one's own actions such as, for example, the commission of a criminal offence. Applying this principle to the instant case, the Court lays emphasis on the fact that the applicant was never charged with or proved to have committed any criminal offence. It follows that the text of the police decision cannot be considered to be the foreseeable consequence of the applicant's own doing, precisely because she has never been charged with, let alone proved, to have committed any crime. 58.", "Such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with the law”, pursued a legitimate aim or aims and was “necessary” for the attainment of the latter. 59. For the purposes of the instant case the Court is prepared to accept that the disclosure of the police decision of 3 July 2000 to the insurance company had a legal basis and was therefore in accordance with the law, as asserted by the director of the police department in reply to the applicant's complaint (see paragraph 10 above). On the other hand, the Court considers that it is not required to decide whether the disclosure of the police decision pursued a legitimate aim. In its view, this matter is closely related to compliance with the “necessity” test.", "According to that test, a breach of Article 8 will be found if, in the particular circumstances of a case, an impugned measure fails to strike a fair balance between the competing public and private interests at issue. The requirement of proportionality demands that a respondent Government show relevant and sufficient reasons for the interference. While it is for the national authorities to make the initial assessment in all these respects, and a margin of appreciation must be left to the competent national authorities in this assessment, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001; S and Marper v. the United Kingdom, [GC], applications nos. 30562/04 and 30566/04, 4 December 2008, §§ 101-102).", "60. In this connection, the Court considers that the police decision was couched in terms which pointed to an expression of fact and not mere suspicion and amounted to an obvious indication that the police department considered the applicant to be guilty. This, it finds, is evident in the actual words employed in the impugned decision (see paragraph 9 above), namely that: “The investigation showed that [the applicant's] action met the constituent elements of the offence of causing injury to health pursuant to Article 221 § 1 of the Criminal Code in that she had deliberately inflicted an injury on another person.” 61. Of particular concern to the Court is the fact that the applicant had not been charged with a criminal offence but was nevertheless placed on record as a criminal offender. The Court has already had occasion to point to the risk of stigmatisation of individuals stemming from such practices and the threat which they represent to the principle of the presumption of innocence (see S and Marper, cited above, § 122).", "For the Court, the damage which may be caused to the reputation of the individual concerned through the communication of inaccurate or misleading information cannot be ignored either. The Court would also observe with concern that the authorities have not indicated whether the police decision remains valid indefinitely, such as to constitute, with each communication to a third party, assuming such to be in pursuit of a legitimate aim, a continuing threat to the applicant's right to reputation. 62. In examining whether the domestic authorities have complied with the above-mentioned fair balance requirement, the Court must have regard to the safeguards in place in order to avoid arbitrariness in decision-making and to secure the rights of the individual against abuse. In the instant case, the Court cannot but note the lack of any available recourse through which the applicant could obtain a subsequent retraction or clarification of the terms of the police decision.", "The Court further notes that in the above‑mentioned Babjak case the original police decision which stated that that applicant had committed a crime had been superseded by a subsequent official statement from the competent police department unequivocally clarifying that it had not been proved that he had committed any criminal offence. 63. Having regard to the above considerations, the Court finds that the domestic authorities failed to strike a fair balance between the applicant's Article 8 rights and any interests relied on by the Government to justify the terms of the police decision and its disclosure to a third party. There has accordingly been a breach of Article 8 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed SVK 300,000 (approximately EUR 9,958) in respect of non-pecuniary damage. 66.", "The Government argued that the applicant's claim was exaggerated and unsubstantiated. They maintained that the applicant had not shown any causal link between the claimed non-pecuniary damage and the alleged breach of her Convention rights. In the event that the Court found a violation, the Government considered that the finding of a violation would constitute in itself sufficient just satisfaction. 67. The Court accepts that the applicant must have suffered some non‑pecuniary damage.", "Ruling on an equitable basis, it awards the applicant 1,500 euros (EUR) under that head. B. Costs and expenses 68. The applicant also claimed SVK 14,875 (approximately EUR 494) for the costs and expenses incurred before the domestic courts and SVK 35, 700 (approximately EUR 1,185) for those incurred before the Court. This broke down into 5 hours of legal fees at a rate of SVK 2,975 (approximately EUR 99) for domestic proceedings and 12 hours for proceedings before this Court, which included VAT (value added tax).", "69. The Government considered that the applicant had overstated her claim for costs and expenses and that the claim was unsubstantiated by any documentary evidence, such as the contract with her lawyer. Moreover, the Government found the applicant's lawyer's hourly rate to be inflated, citing the Court's judgment in Young, James and Webster v. the United Kingdom (Article 50), 18 October 1982, § 15, Series A no. 55, where the Court held that the effective protection of human rights required human rights lawyers to be moderate in the fees that they charged to applicants. 70.", "According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has failed to provide sufficient supporting documents substantiating her claims under this head, such as a copy of the contract with her legal representative for example (Rule 60 §§ 1 and 2 of the Rules of Court). The Court accordingly rejects the applicant's claims 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.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 8 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 18 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF VASILICIUC v. THE REPUBLIC OF MOLDOVA (Application no. 15944/11) JUDGMENT STRASBOURG 2 May 2017 FINAL 02/08/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vasiliciuc v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 21 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15944/11) 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, Ms Axenia Vasiliciuc (“the applicant”), on 28 February 2011. 2. The applicant was represented by Mr S. Coptu, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular. that the detention order issued against her had not been based on relevant and sufficient reasons as required by Article 5 § 3 of the Convention. 4. On 10 May 2011 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 Athens, Greece. 6. Because of the difficult economic situation in Moldova, in 1997 the applicant left that State for Greece where she found employment; she was engaged by a family to take care of a disabled child. She used to visit Moldova on holiday every two to three years and she kept an apartment in Causeni.", "7. On 15 September 2008, after a visit to Moldova, the applicant was returning to Greece from Chisinau Airport when she was stopped by customs officers because she had on her twenty-nine pieces of non-identical jewellery such as rings, bracelets, necklaces and pendants. The applicant was wearing seven pieces of the jewellery and the rest were in a jewellery box in her handbag. Since the applicant had failed to declare the jewellery, she was taken to the airport police station. There she stated that she had not been attempting to smuggle the jewellery through customs and that she had honestly believed that no declaration was necessary for goods whose value was less than 5,000 euros (EUR).", "She also submitted that the jewellery in question had been brought to Moldova from Greece. She was informed that she only had the right to take five pieces of non-identical jewellery out of country, no matter their value. She also submitted that she had not been asked to declare anything by the customs officers. The police drew up a report according to which the applicant had in her possession twenty-nine pieces of jewellery made of precious metals and stones with a total value of 55,582 Moldovan lei (MDL – approximately EUR 3,284). All the jewellery, including the pieces allowed by law to be transported over the border, was seized by the police.", "8. The applicant missed her flight and spent two weeks in Moldova during which time she went to the police station on several occasions. There she made an official declaration and signed a formal undertaking to appear before the prosecuting authorities and courts when necessary. She informed the authorities about her intention to leave the country and obtained their permission. She also gave her Greek address and telephone number.", "9. On 1 October 2008 the applicant returned to Greece because she could no longer be absent from work. She had no difficulties in leaving the country through the same airport. 10. On 7 October 2008 the Chişinău airport police formally initiated criminal proceedings against the applicant for attempted smuggling of jewellery.", "The offence was considered to be a minor one (infracțiune ușoară) with a maximum penalty of 6,000 Moldovan lei (approximately EUR 430) or 240 hours community service or imprisonment of two years. The applicant was not aware of the initiation of the criminal proceedings against her. 11. Subsequently, the applicant was summoned to appear before the investigating authorities via her Moldovan address. Since she did not appear, the prosecutors contacted her adult son and a relative of hers and asked them about the applicant’s whereabouts.", "Both of them stated that the applicant was in Greece and that they did not know when she intended to return to Moldova. It does not appear from the material in the case-file that the prosecutors asked the applicant’s relatives for her contact information in Greece or to inform her that she had to appear before them. 12. On 16 June 2009 the prosecutor’s office applied to the Botanica District Court for a detention order in respect of the applicant. The reason relied upon by the prosecutors was that the applicant had absconded from prosecution when she left the country on 1 October 2008, in spite of her having given a written undertaking to appear when summoned.", "A public defender was appointed to represent the applicant. On 19 June 2009 the Botanica District Court ordered the applicant’s detention for a period of fifteen days. The reason relied upon by the court was that the applicant had failed to appear before the investigating authorities when summoned. The publicly appointed lawyer did not challenge that decision. 13.", "The applicant learned of the detention order against her in the summer of 2010 and employed a Moldovan lawyer to challenge it. On an unspecified date the applicant’s representative lodged a habeas corpus application with the Botanica District Court in which it was argued, inter alia, that the applicant had not been aware of the criminal proceedings against her, that she had never been summoned to appear before the prosecutor’s office and that she had not been informed that she could not leave the country. She asked the court to revoke the detention order and, in exchange, promised to appear before the court when necessary and to surrender her passport. 14. On 18 September 2010 the Botanica District Court rejected the applicant’s habeas corpus application relying, inter alia, on the fact that the applicant had formally undertaken to appear before the prosecuting authorities and courts and later failed to abide by the undertaking.", "The applicant’s representative appealed, arguing, inter alia, that according to the law the undertaking had not been valid because no criminal proceedings had been formally instituted at that time. The appeal was dismissed by the Chişinău Court of Appeal on 30 September 2010. 15. In July 2011, after the communication of the present case to the Government, the Moldovan authorities applied to Interpol for an international arrest warrant for the applicant. As a result, the applicant was arrested in Greece and held in detention pending extradition proceedings for a period of twenty-three days.", "In the documents ordering the applicant’s arrest and detention, the Greek authorities made specific reference to the detention order issued by the Botanica District Court on 19 June 2009 (see paragraph 12 above). The extradition proceedings ended on 21 September 2011 when the Athens Court of Appeal rejected the Moldovan authorities’ extradition request and ordered the applicant’s release from detention. The Athens Court of Appeal found that according to Article 5 of the European Convention on Extradition, persons suspected of offences in connection with taxes, duties and customs could be extradited only if the Contracting Parties have so decided in respect of any such offence or category of offences. In the absence of any such agreement between Moldova and Greece, the extradition request could not be upheld. It appears that the applicant has not returned to Moldova ever since.", "II. RELEVANT DOMESTIC LAW 16. Under Article 198 of the Code of Criminal Procedure an obligation to appear before the courts can be imposed on a participant in criminal proceedings by a court only after the formal institution of the criminal proceedings. 17. According to Article 176 of the Code of Criminal Procedure, the preventive measure of detention pending trial can be imposed only when there are reasonable grounds to believe that the suspect could abscond from the investigating authorities, hinder the discovery of the truth or re-offend.", "18. According to Article 238 of the Code of Criminal Procedure, a person shall be summoned at his or her home address. If the address is unknown, then the summons shall be sent to his or her place of work. If the person to be summoned declared another address during the proceedings, then the summons shall be sent to that address. The summoning of persons who live abroad shall be carried out in accordance with the provisions of the treaties concerning judicial assistance.", "III. RELEVANT INTERNATIONAL LAW 19. The European Convention on extradition of 13 December 1957, in so far as relevant, reads as follows: Article 5 – Fiscal offences Extradition shall be granted, in accordance with the provisions of this Convention, for offences in connection with taxes, duties, customs and exchange only if the Contracting Parties have so decided in respect of any such offence or category of offences. THE LAW 20. The applicant complained that, contrary to Article 5 §§ 1 and 3 of the Convention, there had been no reasonable suspicion that she had committed an offence and that the detention order issued against her by the Moldovan authorities had not been based on relevant and sufficient reasons.", "The Court shall examine the above complaints under Article 5 § 1 of the Convention which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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;” I. ADMISSIBILITY A. The Court’s jurisdiction to examine the case against Moldova 21. When the applicant lodged her application with the Court on 28 February 2011, challenging the detention order of 19 June 2009 as upheld by the domestic courts in the habeas corpus proceedings, she had not been deprived of her liberty on the basis of or as a consequence of this detention order.", "The Court does not consider it necessary to determine the applicability of Article 5 of the Convention at that particular moment in time. That determination is not necessary in view of the fact that the applicant was in any event subsequently detained in Greece on the basis of an international arrest warrant issued by Interpol at the request of the Moldovan authorities for the purpose of enforcing the detention order of 19 June 2009. In such circumstances, the Court cannot but agree with the parties that Article 5 is applicable in the present case. 22. The Court notes that although detained in Greece, the applicant directed her complaints against Moldova by means of the current application.", "Although the Moldovan Government have not raised an objection to being held accountable under the Convention for the facts alleged against them, the Court will of its own motion deal with the matter. The question to be decided is whether the facts complained of by the applicant can be attributed to Moldova. 23. The Court notes that the applicant was under the control and authority of the Greek authorities in the period between her arrest in Greece and her release from detention. Nevertheless, in so far as the alleged unlawfulness of her arrest and detention is concerned, it cannot be overlooked that the applicant’s deprivation of liberty had its origin in the measures taken by the Moldovan authorities, that is the international arrest warrant issued by Interpol at the request of the Moldovan authorities for the purpose of enforcing the detention order of 19 June 2009.", "Here it should be noted that by ordering the applicant’s detention on remand and setting in motion a request for the applicant’s extradition, the responsibility lay with Moldova to ensure that the detention order complied with the requirements of Article 5 of the Convention. 24. In the above context, the Court recalls that in the context of an extradition procedure, a requested State should be able to presume the validity of the legal documents issued by the requesting State and on the basis of which a deprivation of liberty is requested. Furthermore, the country requesting extradition must ensure that the request for detention and extradition is lawful, not only under national law, but also under the Convention. Accordingly, the act complained of by the applicant, having been instigated by Moldova on the basis of its own domestic law and followed-up by Greece in response to its international obligations, must be attributed to Moldova notwithstanding that the act was executed in Greece (see Stephens v. Malta (no.", "1), no. 11956/07, §§ 50-54, 21 April 2009). 25. In the light of the above, the Court considers that the applicant’s complaints under Article 5 engage the responsibility of Moldova under the Convention. B.", "The complaint under Article 6 of the Convention 26. The applicant also complained under Article 6 § 1 of the Convention that the proceedings in respect of her were not fair because she was not invited to participate at the hearings at which the courts decided her detention order. Since the proceedings in question did not concern the determination of a criminal charge against the applicant, the Court considers that the complaint is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention, and declares it inadmissible. C. The Government’s objection and the complaint about lack of reasonable suspicion 27. The Government expressed doubts in respect of the validity of the application submitted to the Court and regarding the power of attorney of the applicant’s representative.", "They claimed that the handwriting and the signature on some documents presented by the applicant did not belong to the same person. Moreover, they argued that the power of attorney submitted by the applicant’s representative had been sent to him from a Moldovan fax number and not from Greece. They considered the application to be an abuse of the right of individual application and asked the Court to declare it inadmissible pursuant to Article 35 § 3 of the Convention. 28. In reply to this allegation, the applicant addressed a letter to the Court in which she confirmed the validity of her signature and of the power of attorney given to her representative.", "She also submitted that the power of attorney had been sent to her son in Causeni, Moldova, and her son had then faxed it to her representative. 29. On the basis of the material in its possession, the Court is unable to conclude that the applicant’s handwriting and signature were forged and, thus that the applicant has committed an abuse. Accordingly, this objection fails. 30.", "In so far as the complaint about the lack of reasonable suspicion that the applicant had committed an offence is concerned, the Court notes that it is not disputed between the parties that the applicant was carrying more jewellery than allowed by law when checked by the customs officers on 15 September 2008. It is similarly undisputed that the applicant failed to fill in a customs declaration in respect of that jewellery. In such circumstances, the Court considers it established that there was a reasonable suspicion that the applicant had committed an offence provided for by the Criminal Code. Hence, the Court considers that this part of the complaint under Article 5 is manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention, and declares it inadmissible. 31.", "At the same time, the Court notes that the remainder of the application, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II. MERITS 32.", "The applicant submitted that her detention ordered by the Moldovan authorities was not necessary because the reasons relied upon by the Moldovan courts to order her detention pending trial and to dismiss her habeas corpus application had not been relevant and sufficient. 33. The Government disagreed and argued that the detention order had been necessary because she had absconded from the investigation by leaving the country and not showing up when summoned by the prosecutors. 34. The Court recalls that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual.", "Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Lukanov v. Bulgaria, 20 March 1997, § 41, Reports of Judgments and Decisions 1997‑II; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004‑VII). 35. No deprivation of liberty is compatible with the Convention unless it is lawful.", "The expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996‑III and Assanidze v. Georgia, cited above, § 171). A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article 5 § 1 (see, Benham, cited above, §§ 42-47; and Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX).", "36. Compliance with national law is not, however, sufficient: Article 5 § 1 of the Convention requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996‑III; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, Saadi v. the United Kingdom [GC], no.", "13229/03, § 67, ECHR 2008‑I). 37. The Court notes that, in so far as Greece is concerned, the applicant’s detention for twenty-three days fell within the ambit of Article 5 § 1 (f) of the Convention, namely it was detention with a view to extradition. However, the Court is not assessing the responsibility of Greece for the lawfulness of the deprivation of liberty under Article 5 § 1 (f), but the responsibility of Moldova for that detention, that is the international arrest warrant issued by Interpol at the request of the Moldovan authorities for the purpose of enforcing the detention order of 19 June 2009. As indicated above, the applicant takes issue only with the lawfulness of the detention order which was at the origin of her deprivation of liberty in Greece, that is with the lawfulness of the detention order issued by the Botanica District Court on 19 June 2009.", "It is without doubt that the applicant’s deprivation of liberty in Greece was a direct consequence of that detention order and that no deprivation of liberty in Greece would have been possible in the absence of that order issued by the Moldovan courts. This fact was expressly noted by the Greek courts in their decisions concerning the applicant’s extradition, where they made specific reference to the Botanica District Court’s decision on 19 June 2009 (see paragraph 15 above). 38. The Court therefore considers that the applicant’s detention in Greece, although formally for the purpose of her extradition, was part of the mechanism used by the Moldovan authorities to implement the Botanica District Court’s decision of 19 June 2009 outside Moldova’s borders and to bring the applicant before a competent Moldovan legal authority on reasonable suspicion of having committed an offence. Therefore, as regards Moldova, the applicant’s detention is to be examined under Article 5 § 1 (c) of the Convention.", "In reaching this conclusion the Court bears in mind the principle according to which “[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). Had it been otherwise, the applicant would remain without the protection of Article 5 of the Convention. 39. The Court notes that the reason for ordering the applicant’s detention relied upon by the Moldovan courts was the fact that she had failed to appear before the investigating authorities when summoned (see paragraph 12).", "In this connection, the Court notes that the applicant left the country lawfully at a time when no criminal proceedings were pending against her. It was after her leaving the country that the authorities initiated criminal proceedings against the applicant. The Court further notes the applicant’s submission, which the Government did not contest, that she had given the police her contact information in Greece at a meeting with them after the events of 15 September 2008. In spite of that, the prosecutors issued the summons to her Moldovan address in Causeni. Moreover, according to the material in the case-file, the prosecutors contacted the applicant’s adult son and a relative of hers but failed to ask them to inform the applicant that she had to appear before them and made no attempt to follow up the information that she was in Greece.", "In fact, the case-file material does not contain any evidence to the effect that the authorities made any reasonable attempts to inform the applicant of the criminal proceedings and the necessity to appear before them within the framework of those proceedings. 40. The Court considers that where such an important issue as the right to liberty is at stake, it is incumbent on the domestic authorities to convincingly demonstrate that detention was necessary. Where the authorities order the detention of an individual pending trial on the grounds of his or her failure to appear before them when summoned, they should make sure that the individual in question had been given adequate notice and sufficient time to comply and take reasonable steps to verify that he or she has in fact absconded. That was certainly not the case in the present case where the authorities chose to take a very formalistic approach to the problem of summoning the applicant and when the applicant did not show up they hastily concluded that she was absconding.", "The Court notes that this appears to be contrary to Article 176 of the Code of Criminal Procedure which states in clear terms that detention pending trial can be imposed only when there are reasonable grounds to believe that the suspect could abscond from the investigating authorities (see paragraphs 17 above). It also appears to be contrary to Article 238 of the Code of Criminal Procedure which states that if the person to be summoned declared another address during the proceedings, then the summons shall be sent to that address (see paragraph 18 above). 41. In her habeas corpus application the applicant argued that she had not been summoned to present herself before the prosecutors and that she undertook to appear before them and give up her passport. The refusal of the domestic courts to check the applicant’s submissions about improper summoning and to give her a chance to appear before the authorities has persuaded the Court that the applicant’s detention cannot be considered necessary and devoid of arbitrariness under Article 5 § 1 (c) of the Convention (compare to Ladent v. Poland, no.", "11036/03, § 56, 18 March 2008). There has therefore been a breach of Article 5 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 43. The applicant claimed 8,000 euros (EUR) in respect of non‑pecuniary damage. She submitted that she had suffered considerable stress and frustration as a result of her arrest and detention. 44. The Government submitted that the claims were excessive and unsubstantiated.", "45. The Court considers that the applicant must have been caused a certain amount of stress and anxiety as a result of the violation of her rights under Article 5 § 1 of the Convention. Deciding on an equitable basis, it awards the applicant EUR 3,000. B. Costs and expenses 46.", "The applicant also claimed EUR 890 for the costs and expenses incurred before the Court. The amount included the legal fees and postal and translation expenses. 47. The Government submitted that the expenses claimed by the applicant were neither necessary nor reasonable. 48.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire amount claimed for costs and expenses for the proceedings before it. C. Default interest 49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint under Article 5 § 1 of the Convention about lack of reasonable suspicion and the complaint under Article 6 inadmissible and the remainder of the application admissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 890 (eight hundred and ninety 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 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithIşıl KarakaşRegistrarPresident" ]
[ "FIRST SECTION CASE OF VELKHIYEV AND OTHERS v. RUSSIA (Application no. 34085/06) JUDGMENT STRASBOURG 5 July 2011 FINAL 08/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Velkhiyev and Others 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,George Nicolaou,Mirjana Lazarova Trajkovska, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 14 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "34085/06) 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 seven Russian nationals, listed below (“the applicants”), on 15 August 2006. 2. The applicants were 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 Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 11 March 2009 the Court decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application, and to give notice of the application to the Government. Under the provisions of former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, Mr Bekhan Ulanovich Velkhiyev, Ms Rima Usamovna Velkhiyeva, Mr Ali Bashirovich Velkhiyev, Ms Kheda Bashirovna Velkhiyeva, Mr Dzhokhar Bashirovich Velkhiyev, Ms Marem Bashirovna Velkhiyeva and Ms Aminat Bashirovna Velkhiyeva, are Russian nationals who were born in 1965, 1961, 1992, 1994, 1998, 2000 and 2002 respectively. The first applicant lives in Malgobek, Ingushetia; the second to seventh applicants live in the village of Barsuki, Ingushetia. A.", "Detention and torture of the first applicant and Mr Bashir Velkhiyev. Death of Mr Bashir Velkhiyev. 6. The first applicant is the brother of Mr Bashir Velkhiyev, born in 1963. The second applicant is the wife of Mr Bashir Velkhiyev and the third to seventh applicants are their children.", "7. The following account of the events submitted by the applicants was not contested by the Government, except for the alleged theft (see paragraph 15 below). 8. On the evening of 19 July 2004 the first applicant came to the village of Barsuki to visit Mr Bashir Velkhiyev and his family, who lived at 6 Zapadnaya Street. The first applicant stayed at their house for the night.", "9. On 20 July 2004 the first applicant and Mr Bashir Velkhiyev got up at 8 a.m. while the second applicant was making breakfast and the third to seventh applicants were playing in the yard. 10. At approximately 8.30 a.m. the first and second applicants and Mr Bashir Velkhiyev heard the children screaming and ran out into the yard. There they saw servicemen in camouflage uniform armed with automatic weapons who were jumping into the yard over the fence and coming through the gates.", "11. About thirty servicemen gathered in the yard. Most of them spoke Ingush, although three or four servicemen spoke Russian without an accent. Later it transpired that they were officers of the Ministry of the Interior. They had AK automatic rifles, sniper rifles and machine guns.", "The servicemen forced the children into a corner between two houses in the yard and held them there at gunpoint. 12. Mr Bashir Velkhiyev asked the servicemen not to scare the children. He also told them that there were no criminals in his house. He said that they could enter and that there was no reason to be alarmed.", "The servicemen ordered the first applicant and Mr Bashir Velkhiyev at gunpoint to face the wall and to raise their hands. Then one of the servicemen asked: “Who is the master of the house?” Mr Bashir Velkhiyev replied that he was. At the same time he asked the servicemen to present their identity documents as well as documents authorising their entry to his house. The servicemen did not reply and took Mr Bashir Velkhiyev at gunpoint out of the yard. 13.", "The first applicant remained facing the wall. The servicemen who were still in the yard asked him for his passport. The first applicant gave his passport to a serviceman who must have been about thirty-five years old with short dark hair. He was dressed in camouflage uniform and spoke Russian with an accent. Having checked the first applicant’s passport the serviceman asked him where he lived and what his occupation was.", "Having heard the reply, the serviceman said: “You stay at home. We have no issues with you.” However, he did not return the passport to the first applicant. 14. At the same time several servicemen searched the house. They had neither produced a search warrant nor called for witnesses.", "The second applicant tried to enter the house to take some money that was kept in a wardrobe. The servicemen did not let her enter the house. Then she told the first applicant that she was not being let into the house to take the money. The first applicant rushed into the house having pushed away one of the servicemen. There were five or six servicemen in the house.", "They asked the first applicant what was in several bags placed in the bedroom. He replied: “See for yourselves, there is nothing illegal there.” He also asked them whether they had a search warrant and why they did not draw up a report on the search and Mr Bashir Velkhiyev’s arrest. One of the servicemen, thirty‑five or forty years old and of heavy build with light-grey hair, replied to him in Ingush: “Get ready, everything will be explained to you there”. As the first applicant realised that they were going to detain him too, he approached the dark-haired serviceman and asked: “Why are you taking me, you said you had no issues with me?” The serviceman replied: “That Ingush took your passport from me. Sort it out with him.” The serviceman pointed at the officer who had ordered the first applicant to get ready.", "15. According to the applicants, after the servicemen left together with the first applicant and Mr Bashir Velkhiyev, the second applicant discovered that they had taken money in the amount of 12,000 United States dollars (USD) and 40,000 roubles (RUB) that was kept in the wardrobe. The servicemen also took Mr Bashir Velkhiyev’s mobile phone, twenty videotapes, fifteen audiotapes, Mr Bashir Velkhiyev’s wallet with USD 600 and RUB 20,000 and the first applicant’s wallet with USD 400 and RUB 1,000. The Government contested the applicants’ account in this part. 16.", "When he was taken out of the yard into the street, the first applicant saw a large number of servicemen, two khaki UAZ-452 vehicles (“Tabletka”) with no registration numbers, and a VAZ-2109 car. The first applicant was ordered to get into one of the UAZ vehicles, where he saw Mr Bashir Velkhiyev sitting handcuffed with his shirt pulled over his head. One of the servicemen said to the others: “Let them sit together for the last time”. Then they handcuffed the first applicant and put a sports hat over his head which covered his eyes. Since the hat was transparent the first applicant could see the people in the vehicle.", "There were about eight or ten men and they spoke Ingush. 17. When the UAZ vehicle moved, one of the servicemen said to the serviceman who was sitting opposite the first applicant and Mr Bashir Velkhiyev: “Check if he has a strong head.” The serviceman then took a metal helmet, hit Mr Bashir Velkhiyev twice over the head with it and said that he did have a strong head. The other serviceman replied: “We shall see when we arrive.” 18. In approximately ten minutes they arrived at the Organised Crime Unit (УБОП) at the Ministry of the Interior of Ingushetia in Nazran.", "The first applicant could see the building through the hat pulled over his eyes. He and Mr Bashir Velkhiyev were taken to an office on the second floor of the building to the left of the entrance. They remained handcuffed. 19. There, officers of the Ministry of the Interior asked the first applicant and Mr Bashir Velkhiyev their names, dates and places of birth.", "Then Mr Bashir Velkhiyev was asked where such a large amount of money, USD 12,000, had come from. He slowly replied that he and the second applicant had saved it to buy a house. The officer hit him over the head and told him to reply faster. Mr Bashir Velkhiyev said that he would reply only in accordance with the legal procedure. Then officers hit him several times and said: “Let us start again”.", "They put the same questions again. Mr Bashir Velkhiyev did not reply. One of the officers then grabbed him and hit his head against the wall saying: “Are you deaf?” Mr Bashir Velkhiyev repeated that he would reply only in accordance with the legal procedure. The reply made the officers angry. One of them said that Mr Bashir Velkhiyev had not been beaten yet and that he should be worked over “in full”, whereas the first applicant should be worked over “upwards”.", "20. Then Mr Bashir Velkhiyev was taken out of the office. The first applicant heard the order: “To the left.” Then officers put a band over the hat pulled over the first applicant’s eyes so that he could no longer see anything. They took off his handcuffs and instead placed on his hands a device which, according to the officers, did not leave bruises. They said, laughing, that it had been made especially for him.", "21. First the officers asked the first applicant where he had been on the night of 21 to 22 June 2004 when rebel fighters had attacked Ingushetia. He replied that he had been ill at home that night, as could be confirmed by his relatives. Then they asked him about a certain paper which they alleged he had written. The first applicant said that he had never written such a paper and that this could easily be checked by comparing handwriting if they untied his hands and provided him with a pen and paper.", "Then the officers hit the first applicant’s head against the wall, kicked him in the groin and hit him over the ears. They said: “This is to bring you back to your senses. Don’t try to be smart with us, we are just kidding to make you cooperate with us. For information on those who participated in the attack you’ll get a car, money and [the right to] move freely in the whole of Russia.” They also asked him which “Wahhabis” he knew in Ingushetia. He replied that he was not a “Wahhabi” but an entrepreneur.", "22. The officers again suggested that he cooperate with them and threatened him with “beating his genitals so that he could not have children” and “impaling him while video recording it”. They asked him to tell them about his relatives. The first applicant replied that he had nothing to tell. Then one of them said: “So you don’t want it in a good way?” and, addressing the other servicemen, ordered: “Bring him ‘upwards’.” The officers then started to beat him again.", "According to the first applicant, he was mainly beaten by officers commissioned from Russia. 23. In a while the first applicant was taken to a different office where the beating continued. The officers beat him with rubber truncheons and said that it was just the beginning. They also threatened him with five years’ imprisonment.", "24. After the beating the first applicant was picked up from the floor and led to yet another office. There the officers said that he was aggravating his situation and that he now risked ten to fifteen years’ imprisonment. They also said that if he offended them he would leave with a first-degree disability, but if they were nice to him, only with a second-degree disability. The officers then placed the first applicant on his stomach, raised his legs and, while holding him in this position, kicked him on the spine and applied an electric current.", "They spilled water on his groin and then placed electric wires there. Because of the electric shock the first applicant fainted. 25. According to the first applicant, the officers were laughing while torturing him. At the same time, he could hear awful screams from other offices where, apparently, people were also being tortured.", "26. When the first applicant recovered consciousness, an officer who spoke Russian without an accent asked him whether he was going to work in the law-enforcement agencies. The first applicant replied that he had wanted to work in the law-enforcement agencies, but after what they had done to him and having heard what they did to others he no longer wanted to. 27. Then the officer took the first applicant into the corridor and removed the device placed on his hands.", "However, he left the hat over his eyes. Then a different officer led the first applicant to the first floor and brought him to a cell. He said: “Do not remove the hat until I leave.” As soon as he left, the first applicant took off the hat and saw another officer of small stature, who told him to enter the cell. In the cell there was another detainee of approximately fifty years of age. In a while a third detainee was placed in the cell.", "He said that he was from the village of Troitskaya. 28. Later in the day the officer of small stature put a sports hat and black plastic bag on the first applicant’s head and took him out of the cell. He was then taken out of the building and put in a car. In the car he fainted because of the injuries sustained earlier.", "When he recovered consciousness, he heard one of the officers, who was talking on the phone, saying: “We have arrived”. Then another officer said to the first applicant: “If you take off the bag in less than ten minutes, your brain will be blown up.” Then he added: “I have almost forgotten, your brother Bashir is in Vladikavkaz. He must have quite a reputation to be there.” The officer then closed the door of the car. The first applicant also heard the doors of another car closing and the car moving away. He realised that the officers had left him and that he was alone in the car.", "29. The first applicant removed the hat and the plastic bag from his head and fainted again. When he recovered consciousness he heard some people talking in Ingush. A few men approached the car, opened the door and told him to get out of the car with his hands raised. The men appeared to be officers of the Nazran Department of the Interior (ГОВД).", "Although the first applicant told them that he could not walk and needed medical assistance, they refused to either call an ambulance or inform his relatives about his whereabouts. They took him to the Department of the Interior and placed him in a cell, having said that they would “sort it out” the next morning. 30. At approximately 8.10 a.m. the next day investigator A. of the Nazran Prosecutor’s Office took the first applicant out of the cell. Investigator A. introduced himself and told the first applicant that Mr Bashir Velkhiyev had died.", "He had not survived the torture by officers of the Ministry of the Interior commissioned from Russia. According to investigator A., as soon as the relatives of the first applicant and Mr Bashir Velkhiyev had informed him of the men’s detention, he had tried to find them as he was concerned for their lives, since officers commissioned from Russia treated detainees very cruelly. However, officers of the Ministry of the Interior of Ingushetia, giving various excuses, had refused to let him meet the first applicant and Mr Bashir Velkhiyev. When he had learned from his colleagues that Mr Bashir Velkhiyev was indeed being held on the premises of the Organised Crime Unit, he had immediately gone there. However, Mr Bashir Velkhiyev was already dead.", "Having questioned officers of the Organised Crime Unit, he had obtained information about the first applicant’s detention. However, he had not found him that night. In the morning, having learned of the first applicant’s whereabouts from police reports, investigator A. had come to see him at the Nazran Department of the Interior. 31. Investigator A. told the first applicant that he had been to the morgue and had seen Mr Bashir Velkhiyev’s body.", "He then took the first applicant to the Nazran Prosecutor’s Office, where he told him that Mr Bashir Velkhiyev had died in office no. 17 of the Organised Crime Unit at the Ministry of the Interior of Ingushetia because of the torture inflicted by officers of the Ministry. Having obtained the necessary documents from the prosecutor’s office, the first applicant went to the morgue. He took Mr Bashir Velkhiyev’s body to the village of Barsuki. 32.", "On 21 July 2004 the first applicant and two other relatives of Mr Bashir Velkhiyev took his body to Vladikavkaz for a second forensic examination. His body was first examined by forensic experts shortly after his death (see paragraph 42 below). 33. According to forensic report no. 464 of 21 July 2004, the following injuries were found on Mr Bashir Velkhiyev’s body: (i) multiple bruises to the outer corner of the right eye, the nose, the forehead, the back of the head extending to the right ear, the right side of the thorax, the left shoulder, the left forearm, the left wrist joint, the back of the left hand, the index finger of the left hand, the right shoulder, the right elbow joint, the right forearm, the right wrist joint, the shoulder blades, the hips, the lower legs and the tops of the feet; (ii) a single abrasion to each wrist joint; (iii) a single haemorrhage on the upper and the lower lip; (iv) a contused wound to the upper lip and (v) a puncture wound to the thorax.", "The bruises, the haemorrhages and the contused wound had been caused by multiple blows with hard, cylindrical blunt objects such as rubber truncheons. The abrasions to the wrist joints were most likely caused by handcuffs. The puncture wound must have been caused by a syringe. The injuries had been caused within the twenty-four hours preceding death. According to the report, the most probable cause of death was cardiovascular collapse.", "34. On the evening of 21 July 2004, having returned from Vladikavkaz, Mr Bashir Velkhiyev’s relatives buried him in the family cemetery in the village of Sredniye Achaluki. B. Search for the first applicant and Mr Bashir Velkhiyev and applications to the State authorities. 35.", "According to the applicants, at 11.30 a.m. on 20 July 2004, approximately two hours after the detention of the first applicant and Mr Bashir Velkhiyev, the second applicant went to the Ministry of the Interior of Ingushetia in Nazran. Officers on duty at the reception desk refused to accept her application. They sent her to the security desk at the entrance and ordered her to get a pass there to enter the building. 36. At the security desk the second applicant explained that she needed a pass in order to submit an application concerning the unlawful detention of her relatives.", "The officer on duty at the security desk told her that “the bosses had forbidden staff to issue passes” and advised her to apply to the Nazran Department of the Interior. 37. At 12.30 p.m. the second applicant applied in person to the Nazran Department of the Interior. However, the officers in charge refused to accept her application. They said that neither the first applicant nor Mr Bashir Velkhiyev had been brought to the Department of the Interior.", "Having insulted the second applicant, they ordered her to leave the premises immediately. 38. The second applicant returned to the Ministry of the Interior of Ingushetia. The same officers again refused to accept her application. However, one of them sent her to the Organised Crime Unit.", "He showed her the entrance to the Unit, which was within fifteen to twenty metres of the main entrance to the Ministry of the Interior, and said that the first applicant and Mr Bashir Velkhiyev were there. He also told the second applicant that they were being held by Russians who had been specially commissioned to Ingushetia and added: “God help them”. 39. The second applicant was not let into the Organised Crime Unit. Officers ordered her to return home and said that neither the first applicant nor Mr Bashir Velkhiyev was being held there.", "She then went to the village of Sredniye Achaluki to see Mr Bashir Velkhiyev’s relatives and tell them about the events. 40. On 21 July 2004, after the first applicant had been released and it had become known that Mr Bashir Velkhiyev had died, their relatives applied to the Nazran Prosecutor’s Office seeking the institution of criminal proceedings against officers of the Organised Crime Unit for torture and for Mr Bashir Velkhiyev’s murder. The applicants did not retain copies of their first applications. They re-submitted the applications a number of times later.", "C. Official investigation 41. On 20 July 2004 the Nazran Prosecutor’s Office issued a notice for entry in the Crime Register (Книга учета сообщений о преступлениях) stating that, according to a telephone call received at approximately 4.35 p.m. on that date, the body of Mr Bashir Velkhiyev had been found in office no. 17 of the Organised Crime Unit at the Ministry of the Interior of Ingushetia, after Mr Velkhiyev had been brought there in order to give certain explanations. The notice also stated that an inquiry was being conducted into the events. 42.", "On the same date the Nazran Prosecutor’s Office ordered a forensic examination of Mr Bashir Velkhiyev’s body. According to forensic report no. 91 of 20 July 2004, there were numerous bruises on the body; death had occurred two to four hours before the examination and was caused by traumatic shock as a result of the injuries. 43. On 21 July 2004 the Nazran Prosecutor’s Office ordered an investigation into the death of Mr Bashir Velkhiyev.", "44. On 23 July 2004 the Nazran Prosecutor’s Office ordered a medical examination of the first applicant. According to forensic report no. 397 of the same date, the first applicant had the following injuries: large bruises measuring 19 x 22 cm and 18 x 17 cm on the back at the level of the thorax and on the shoulder blades; a bruise measuring 13 x 2 cm below the right shoulder blade; numerous subcutaneous wounds, abrasions ranging from 0.5 cm to 1.5 cm in length and bruises near the seventh cervical vertebra, and seven similar areas in the interscapular and lumbar regions (traces of surface notches with subsequent application of cupping glasses for bloodletting); multiple small haemorrhages on the back of the left hand; a partially healed abrasion on the back of the right hand; haematomas on the buttocks extending to the hips measuring 21 x 18 cm and 17 x 10 cm; four similar haematomas on both hips and the back of the knees ranging in size from 10 x 8 cm to 12 x 7 cm; similar multiple haematomas on the lower right leg measuring around 20 x 11 cm; a haematoma measuring 12 x 8 cm and swelling to the sole of the right foot. It was also stated that the mobility of the ankle was limited and that the first applicant complained of pain in his back and scrotum.", "The expert recommended consulting a urologist, a neuropathologist and a traumatologist. 45. On the same date the first applicant was examined by two other doctors. It appears that they were a traumatologist and a neuropathologist. According to the relevant entries in his medical file, the first applicant had large haematomas on the buttocks, hips and shoulder blades; eight traces of application of an electric current on the shoulder blades and some on the hands; traces of blows on his hands and the soles of his feet and bruising to the forehead.", "The doctors stated that the injuries had been caused by beating and by the application of an electric current. They also stated that the first applicant had brain concussion and limited mobility of all his joints. 46. On 30 July 2004 the Nazran Prosecutor’s Office decided to institute an investigation (no. 04560079) into the death of Mr Bashir Velkhiyev.", "It is not clear how this decision related to the previous decision of 21 July 2004 on the institution of an investigation. 47. On 4 and 6 August 2004 the first applicant was again examined by a medical expert. Having regard to the previous examination on 23 July 2004 and to the entries in the applicant’s medical file the expert concluded that the abrasions and subcutaneous wounds had been caused by notches made for bloodletting five to seven days before the first applicant’s detention. All the other injuries had been caused by multiple blows by a hard object or objects two to three days before the examination on 23 July 2004.", "48. On 18 August 2004 the first applicant was questioned and granted victim status in case no. 04560079. He confirmed his account of the events of 20-21 July 2004 as set out in the preceding paragraphs. 49.", "On the same date investigator A. of the Nazran Prosecutor’s Office examined the Organised Crime Unit’s register. It contained no entries concerning the first applicant or Mr Bashir Velkhiyev. 50. On 24 August 2004 investigator A. of the Nazran Prosecutor’s Office questioned the second applicant. She made a statement in line with the account of the events set out in the preceding paragraphs.", "She also stated that she knew her husband had been beaten to death by police officers although she did not know the names of those responsible. 51. On 25 August 2004 investigator A. of the Nazran Prosecutor’s Office questioned Ms A.Ts., Mr Bashir Velkhiyev’s neighbour. Ms A.Ts. stated that at approximately 8.30 a.m. on 20 July 2004 she had seen the first applicant and Mr Bashir Velkhiyev being taken away from the latter’s house by officers in camouflage uniform, put in a car and driven away.", "On the following day she had learnt that Mr Bashir Velkhiyev had been murdered. 52. On the same date investigator A. of the Nazran Prosecutor’s Office questioned Ms L.Ts., Mr Bashir Velkhiyev’s neighbour, who stated that at approximately 8.30 a.m. on 20 July 2004 her daughter-in-law had told her that police officers had stormed Bashir’s house. She had then tried to go into the yard, but officers in camouflage uniforms and masks had been standing near the gates and had not let her pass. She had then taken the children out through the garden and had come back.", "Through a hole in the gates Ms L.Ts. could see Mr Bashir Velkhiyev being put into a car. Then the officers had left and the second applicant had told her that they had taken Mr Bashir Velkhiyev and the first applicant, who had come for a visit, after promising to bring them back in two hours. Ms L.Ts. did not know who the officers were and she could not see their faces since they were wearing masks.", "On the following day she had learned that Mr Bashir Velkhiyev had been murdered. 53. Also on 25 August 2004 officer M. of the Organised Crime Unit was questioned. He submitted that he had been working at the Unit since 2000. Since 2001 he had been responsible for the provision of arms, receipt of information and organisation of field missions.", "Usually he remained on duty for twenty-four hours, after which he stayed at home for forty-eight hours. On 20 July 2004 officer M. had taken up duty at 8.30 a.m. On that date officer G., officer T. and officer Tut. had also been on duty. At 9 a.m. officers of the federal units of the Ministry of the Interior deployed in Ingushetia brought two detainees with black bags on their heads to the Organised Crime Unit. The officers were wearing masks and gave no information about the detainees, promising to provide it later.", "Officer M. made no entries in the register at that time. After waiting until 10 a.m., he asked the officers to provide him with the information concerning the detainees. They replied that they would obtain explanations from the latter and forward them to officer M. later. He did not know who the officers were, they were wearing camouflaged uniform. Officer M. also submitted that after the events of 21-22 June 2004 officers of the federal units were regularly stationed at the Organised Crime Unit.", "They would bring people there and question them. At approximately 1.40 p.m. on 20 July 2004 officer M. heard a loud noise on the staircase. After leaving his post, he saw two officers of the federal units lifting a man in dark clothes with a bag on his head. He asked them what was going on. They replied that the man had slipped on the stairs and fallen down.", "Having lifted him, they took the man upstairs. At approximately 2.50 p.m. the officers of the federal units left for a field mission, having informed officer M. that they had to fetch one more person who was an accomplice of those already brought to the Organised Crime Unit. At around 3 p.m. the officers returned. At 3.20 p.m. B., the Deputy Head of the Organised Crime Unit, called officer M. and told him to call an ambulance, which he did immediately. At 3.40 p.m. the ambulance arrived and, together with the doctors, officer M. went to the second floor and entered office no.", "17. In the office medical assistant Kh. and Deputy Head B. were providing first aid to a man lying on the floor. The man, Mr Bashir Velkhiyev as officer M. learned later, died before the arrival of the doctors, who pronounced him dead of heart failure. Then the doctors left and an investigative unit from the Nazran Prosecutor’s Office arrived.", "In the evening the officers of the federal units arrived back at the Organised Crime Unit and took away the other detainee. As officer M. learned later, the detainee was the first applicant. Officer M. stated that he did not know who the officers were or to which particular unit they belonged. According to him, the officers of the federal units deployed in the Organised Crime Unit changed constantly and he was not personally acquainted with any of them. He did not know which officers had taken part in the detention of the first applicant and Mr Bashir Velkhiyev either.", "He had not witnessed any beating or other forms of ill-treatment. He did not know where exactly the first applicant had been held, but assumed that it was somewhere on the first floor. 54. Officer G. of the Organised Crime Unit, questioned on the same date, made a statement similar to that of officer M. as regards the events of 20 July 2004, except that he had seen neither the detainees nor those who had brought them to the Organised Crime Unit. He had learned from officer M. that there had been a dead body on the Unit premises.", "55. Officer T. of the Organised Crime Unit, questioned on the same date, made a statement similar to that of officer G. as regards the events of 20 July 2004. 56. On the same date investigator A. questioned medical assistant Kh. She submitted that she had been working as a medical assistant at the Organised Crime Unit since 2003 and was responsible for providing police officers with first aid.", "On 20 July 2004 at around 4 p.m. Deputy Head B. called her and asked her to examine a man in office no. 17. As she learned later, the man was Mr Bashir Velkhiyev. Having entered the office, she spoke to Mr Bashir Velkhiyev, who was sitting on a chair. He was dressed and had no visible injuries.", "He said that he was feeling weakness and pain in his chest. Medical assistant Kh. left to fetch a blood pressure monitor. Then she took Mr Bashir Velkhiyev’s blood pressure, which was 100/80. She gave him an injection of No-spa, but the weakness remained.", "After ten minutes she again took his blood pressure, which was 70/50. She gave the patient an injection of caffeine and recommended Deputy Head B. to call an ambulance, which he did immediately. Then they put Mr Bashir Velkhiyev on the floor and medical assistant Kh. and another officer started to perform indirect massage and artificial respiration. However, despite their efforts Mr Bashir Velkhiyev died.", "The ambulance arrived approximately ten minutes later. Medical assistant Kh. submitted that she did not know why Mr Bashir Velkhiyev had been brought to the Organised Crime Unit. He had not told her that he had been ill-treated. She did not know whether his brother had been detained as well.", "She also stated that, since the events of 21-22 June 2004, officers of the federal units were regularly stationed at the Organised Crime Unit. However, she had no contacts with them. 57. Officer Tut. of the Organised Crime Unit, questioned on 26 August 2004, made a statement similar to that of officer G. as regards the events of 20 July 2004.", "58. On 30 August 2004 investigator A. questioned officer B., the Deputy Head of the Organised Crime Unit. The latter submitted that he occupied office no. 20 on the second floor. Across from him was office no.", "17, which belonged to the Second Department of the Organised Crime Unit, headed by officer A. On 20 July 2004 at approximately 5 a.m. he left with other officers to conduct operations aimed at the detention of those responsible for the events of 21-22 June 2004. First they went to Troitskaya village, then to Karabulak and then to Barsuki. There, he and some other officers entered the yard of the Velkhiyevs’ house. They cordoned off the yard while officers of the federal units entered the house.", "The latter apprehended Mr Bashir Velkhiyev and the first applicant, put them into a UAZ vehicle and took them away. He and other officers went on to other villages to continue the operations. At around 3 p.m. Deputy Head B. returned to the Organised Crime Unit in order to draft a report on the operations conducted. At approximately 3.10 p.m. officers told him that in office no. 17 there was a man with a black bag on his head and that officers of the federal units who had “worked with him” had left to search for his accomplice.", "Then Deputy Head B. entered office no. 17 and saw a man with a black bag on his head lying on the floor. As he learned later, the man was Mr Bashir Velkhiyev. He removed the bag from his head and asked him who he was. The man replied that he had slipped and fallen on the stairs, and asked for water.", "He had no visible injuries. Deputy Head B. made him some tea and called for medical assistant Kh. Having taken his blood pressure and given an injection, she gave instructions to call an ambulance, which was done. When the ambulance arrived at approximately 3.40 p.m., Mr Bashir Velkhiyev was already dead. Immediately afterwards, Deputy Head B. called the investigative group of the Nazran Prosecutor’s Office.", "He did not know which officers of the federal units had detained Mr Bashir Velkhiyev. He did not know them personally since they had been stationed at the Organised Crime Unit after the events of 21-22 June 2004. Deputy Head B. did not know either where the first applicant had been held or whether Mr Bashir Velkhiyev or the first applicant had been subjected to ill‑treatment by officers of the federal units. Neither he nor any officers of the Organised Crime Unit had subjected them to ill-treatment. 59.", "On 3 September 2004 investigator A. questioned officer A., the head of the Second Department of the Organised Crime Unit. Officer A. stated that on 20 July 2004 he had arrived at the Organised Crime Unit at 8.45 a.m. He had neither left for any operation that morning nor sent his officers out. Around lunchtime he received information about a landmine at a market in Nazran and left for there with his officers. After returning to the Organised Crime Unit at around 4 p.m., he learned that a man had died in office no.", "17 after being brought there by officers of the federal units in order to provide explanations. However, officer A. did not know by whom and when exactly the man had been brought there or whether his brother had been apprehended with him. Office no. 17 had been damaged as a result of the events of 21-22 June 2004. Since then it had been mainly used by officers of the federal units; however, officer A. did not know by whom exactly.", "60. Between 10 September and 18 October 2004 investigator A. questioned seven officers of the Organised Crime Unit: officer Ar., officer Ch., officer Das., officer Dol., officer Dz., officer Mach. and officer O. They stated that on 20 July 2004 they had heard that a man brought in for questioning by officers of the federal units had died in office no. 17.", "However, they did not know who the man was or the names of the officers who had brought him to the Organised Crime Unit. 61. On 27 December 2004 the investigation was suspended for failure to identify those responsible. 62. On 14 January 2005 the Ministry of the Interior of Ingushetia drafted a report on the internal inquiry concerning the death of Mr Bashir Velkhiyev.", "The report incorporated the above statements of the officers of the Organised Crime Unit and concluded that Mr Bashir Velkhiyev had died of natural causes. 63. On 14 March 2005 the Nazran Prosecutor’s Office resumed the investigation. 64. On 18 March 2005 officer Dar.", "and on 29 March 2005 officer Bek., both of the Organised Crime Unit, were questioned. They stated that they had learned from internal reports that a man had died on 20 July 2004. However, they had not known that Mr Bashir Velkhiyev and the first applicant had been brought to the Organised Crime Unit or exactly which officers of the federal units had been stationed at the Unit at the relevant time. 65. On 24 March 2005 the second applicant was granted victim status in criminal case no.", "04560079. She was questioned on the same date and confirmed her earlier statement. 66. On 1 April 2005 the Nazran Prosecutor’s Office ordered a forensic medical examination aimed at establishing the character and gravity of the injuries sustained by Mr Bashir Velkhiyev and whether his death had been a result of the said injuries. The order stated that on 20 July 2004 unidentified officials of the Ministry of the Interior had unlawfully apprehended Mr Bashir Velkhiyev and the first applicant and taken them to the Organised Crime Unit where, acting in abuse of their official authority, they had subjected the detainees to violence.", "As a result, Mr Bashir Velkhiyev had died in office no. 17 of the Organised Crime Unit. It was further noted in the order that, according to forensic expert report no. 91 of 20 July 2004, Mr Bashir Velkhiyev’s death had been caused by traumatic shock as a result of the injuries he had sustained. 67.", "According to forensic report no. 37 of 21 April 2005, Mr Bashir Velkhiyev had the following injuries: (1) multiple extensive bruises to the chest and the back at chest height; (2) multiple bruises to the head and upper extremities; (3) multiple extensive bruises to the knee joints extending to the shin, followed by oedema of the soft tissues and considerable swelling of the right knee joint and the lower right leg; extensive bruising to the right hip extending to the buttock; bruises to the tops of the feet; (4) circular bruises with abrasions of the wrists; (5) puncture wounds to the right buttock (from injections); (6) oedema of the brain; (7) loss of blood from the surface of the lung tissue and decrease in lung volume; (8) uneven blood flow to the cardiac muscle. The injuries described at (1), (2) and (3) had been caused by multiple blows with a hard blunt object or objects which had a long cylindrical shape, possibly a truncheon. The injuries described in (4) had most likely been caused by handcuffs. The pathological changes to the internal organs described in (6), (7) and (8) were the result of the traumatic shock caused by the injuries described.", "Taking into account the location of the bruises and the depth of the lesions which had led to the traumatic shock, confirmed by the oedema of the brain, the decrease in lung volume and the uneven blood flow to the internal organs, all the injuries described in (1), (2), (3), (6), (7) and (8) were to be characterised as serious and life-threatening. All the injuries could have been caused at the time and in the circumstances described in the order. The cause of Mr Bashir Velkhiyev’s death was traumatic shock as a result of the injuries sustained. There was a direct causal link between the injuries and his death. 68.", "On 2 April 2005 officer E. of the Criminal Investigation Department of the Nazran Department of the Interior was questioned. He stated that on 20 July 2004 he had been on duty with officer T-v. At approximately 8 p.m. they received a call about a suspicious white car. They left and found a white VAZ 2107 at the described location. They called out but nobody answered. Then they approached the car and saw a man lying on the floor by the back seat.", "The man had either a mask or a bag on his head. They then opened the door, put him on the seat and removed the bag or the mask. They asked his identity and what he was doing there. He answered that he had been brought there several hours earlier by policemen who had told him not to move. He said that his name was Belkhan Velkhiyev and that he and his brother, Bashir Velkhiyev, had been apprehended and detained at the Organised Crime Unit by officers wearing camouflage uniforms and masks who spoke unaccented Russian.", "Then officers E. and T-v. put the man in the UAZ vehicle and took him to the Nazran Department of the Interior. 69. Officers Mer. and Gor. of the Nazran Department of the Interior, questioned on 5 and 7 April 2005 respectively, stated that on 20 July 2004 they had received information about a suspicious white car and had reported the information.", "70. On 11 April 2005 officer A-v., Head of Department of the Ingushetia Ministry of the Interior, was questioned. He stated that on 20 July 2004, following a call concerning a suspicious white car, he and other officers had gone to inspect the car. The first applicant had been found in the car. 71.", "Officer Kh., Head of the Investigations Department of the Ingushetia Ministry of the Interior, questioned on 13 April 2005, provided no relevant information. 72. On 18 April 2005 the first applicant was again questioned. He confirmed his earlier statement and provided some additional information. 73.", "On 24 April 2005 the Nazran Prosecutor’s Office adjourned the criminal proceedings in case no. 04560079 for failure to identify the culprits. 74. On 30 May 2005 the investigation was resumed. 75.", "On 9 June 2005 the first applicant wrote to the Public Prosecutor of Ingushetia asking him to provide information on the course of the investigation and to assist in speeding it up. 76. On 1 July 2005 the Nazran Prosecutor’s Office instituted investigation no. 05560068 (in some documents referred to as no. 05560079) into the alleged unlawful detention and ill-treatment of the first applicant.", "77. On the same date criminal case no. 05560068 was joined with criminal case no. 04560079 under the latter number. The first applicant was informed of the joinder on 7 July 2005.", "78. On 6 July 2005 the Nazran Prosecutor’s Office severed from the proceedings criminal case no. 05560072 against officer M. of the Organised Crime Unit, who had been on duty on 20 July 2004 and had allegedly held the first applicant in detention unlawfully. 79. On 10 July 2005 the Nazran Prosecutor’s Office suspended the proceedings in criminal case no.", "04560079 on the ground that it appeared impossible to identify the persons who had caused the injuries leading to Mr Bashir Velkhiyev’s death in the office of the Organised Crime Unit. 80. On 6 October 2005 the Nazran Prosecutor’s Office suspended the proceedings in criminal case no. 05560072 on the ground that officer M. was outside the Republic of Ingushetia and was therefore precluded from participating in the criminal proceedings. 81.", "On 6 February 2006 the first applicant complained to the Nazran District Court about the Nazran Prosecutor’s Office’s decisions of 10 July and 6 October 2005. 82. On 25 April 2006 the Nazran District Court quashed the Nazran Prosecutor’s Office’s decision of 6 October 2005. However, it dismissed the complaint in the part relating to the decision of 10 July 2005. 83.", "According to the applicants, they were not duly notified of the hearing and were therefore precluded from participating in it. Furthermore, they only received the decision of 25 April 2006 on 31 May 2006. 84. On 6 June 2006 the first applicant appealed against the Nazran District Court’s decision of 25 April 2006 to the Supreme Court of the Republic of Ingushetia. It is not clear whether the complaint was examined.", "85. On an unspecified date the investigation in case no. 05560072 was completed and the case was transmitted to the court. 86. On 28 March 2007 the Nazran District Court acquitted officer M. The court found, in particular: “[According to the indictment,] on 20 July 2004 [officer M.], acting in abuse of his official authority, ... in breach of [the law] and in collaboration with unidentified officers of the law-enforcement agencies of the Ministry of the Interior of the Russian Federation and the Ministry of the Interior of Ingushetia, including the former head of the Organised Crime Unit..., [officer B-v.], brought [the first applicant and Mr Bashir Velkhiyev] into the premises of the Unit without due registration.", "There they were subjected to physical violence by unidentified persons. In particular, [Mr Bashir Velkhiyev] sustained injuries which led to his death in office no. 17 of the Unit, while [the first applicant] sustained [slight] injuries. On 20 July 2004 from 9 a.m. to 7 p.m. [officer M.] unlawfully, and thus in abuse of his official authority, held [the first applicant] in a cell for detainees located in the basement of the Unit to which he had the key and held [Mr Bashir Velkhiyev] in office no. 17 of the Unit.", "After the death of [Mr Bashir Velkhiyev], [the first applicant] was released from the cell and taken by unidentified persons outside the Unit to the “Kavkaz” road..., where he was found by officers of the Nazran Department of the Interior. [Officer M.], questioned at the hearing, submitted that ... following the attacks [by rebel fighters] in Ingushetia on the night of 21 to 22 June 2004 many commissioned officers of the mobile detachment of the Russian Federation were stationed on the premises of [the Organised Crime Unit]. Those officers often brought persons to the Unit in order to check whether they had been involved in the crimes. However, they refused to provide him with information about those persons. When he reported that to the head of the Unit, [officer B-v.], the latter always replied that he was aware of it and [ordered officer M.] not to impede [the officers].", "On 20 July 2004 at 8.30 a.m. [officer M.] took up duty. On that day at approximately 9 a.m. officers of the mobile detachment who were wearing masks brought two men with black plastic bags on their heads to the Unit. In reply to his question they said that the Head of the Unit ... was informed. [Officer M.] telephoned the Head of the Unit, [officer B-v.], and reported that officers of the Ministry of the Interior of the Russian Federation had brought those men in and refused to provide him with the relevant information. In reply, [officer B-v.] ordered him not to interfere since operative work was under way.", "While on duty, [officer M.] always remained in the duty unit and did not know what was going on on the second floor. In the basement ... there was a cell and a cage opposite it... The keys to the cell and the cage were kept in the duty unit. Some time after the two persons had been brought in [to the Unit], officers of the federal detachments took the key to the cage from [officer M.] and took one of the persons to the basement and placed him in the cage. At approximately 2.50 p.m. officers of the federal detachments left for [certain operative measures].", "Ten to twenty minutes later the officers of the Unit who had left [to participate in those measures] returned. At approximately 3 p.m. the Deputy Head of the Unit, [officer B.] called the duty unit and asked for an ambulance to be called since the person brought to the Unit did not feel well. The ambulance arrived after approximately twenty minutes and [officer M.] accompanied the doctors to the second floor. In office no.", "17 he saw a man who showed no signs of life lying on the floor. Doctors ... put him into their car and ... said that he was already dead. After that [officer M.] learned that the name of the deceased person was [Mr Bashir Velkhiyev], who had been brought to the Unit by officers of the federal detachments, and that the other person, who was being held in the cage at that point, was his brother. [Officer M.] could not and had no right to hinder the work of the officers of the federal agencies, who acted together and with the knowledge of the head of the [Unit]. The same evening ... at approximately 7 p.m. officers of the federal detachments arrived at the Unit and then took [the first applicant] away with them.", "[The first applicant] stated that ... [officer M.] did not take part in his beating... [Officer B.] stated that at the relevant time he held the office of Deputy Head of the Organised Crime Unit at the Ministry of the Interior of Ingushetia. On 20 July 2004 at approximately 5 a.m. he left for operative measures aimed at the detention of persons involved in crimes committed in [Ingushetia] on the night of 21 to 22 June 2004. He left together with officers of the Unit, the special police unit [ОМОН] of the Ministry of the Interior of Ingushetia and the federal detachments of the Ministry of the Interior of the Russian Federation. ... [T]hey went to ... Zapadnaya Street, where officers of the federal detachments arrested [the first applicant and Mr Bashir Velkhiyev] on suspicion of the murder of some policemen on 22 June 2004, and put them in their UAZ car.", "Then [officer B.] and some other officers went [to other villages] to continue operative measures. At approximately 3 p.m. he returned to the Organised Crime Unit together with other officers of the Unit. In a while officers of the Ministry of the Interior of the Russian Federation came to his office and said that a person apprehended by their fellow officers was being held in office no. 17 and that the officers who had apprehended him had left to find his accomplice.", "When [officer B.] entered office no. 17, he saw a man with a black plastic bag on his head lying on the floor. He recognised [Mr Bashir Velkhiyev] ... Then he ordered [officer M.], who was on duty that day, to call the ambulance. However, when doctors arrived [Mr Bashir Velkhiyev] was already dead.", "[Officer B.] did not know that at that time [the first applicant] was being held in the basement of the Unit. The events took place shortly after Ingushetia had been attacked by illegal armed groups, resulting in the killing of over a hundred persons, the majority of whom were law-enforcement officers. Many officers of the federal agencies had then been commissioned to the region. They were not subordinate [to the Ministry of the Interior of Ingushetia].", "Those officers were provided with offices in the Unit, to which they themselves brought detainees and worked with them. [Officer M.] could not have done anything even if he had wished to. As the officer on duty he had nothing to do with operative measures, nor had anybody provided him with information about the detained persons. He did not know whether it was [the first applicant and Mr Bashir Velkhiyev] who had been brought in or other persons. The Head of the Organised Crime Unit was aware of the work carried out.", "[Officer M.] did not work with detainees ... His task was to ensure the security of the weapons and the Unit building. [Officer T.] stated that on 20 July 2004 from 8.30 a.m. he was on duty at the security desk situated at the entrance gates of the Unit yard... At the time many officers of the federal detachments commissioned to Ingushetia were in the Unit. He did not know whether the officers had brought any detainees into the Unit that day since the officers entered the yard in cars with tinted windows and from the security desk he could not see who was brought in to the unit. According to the forensic report ... [the first applicant] had numerous haematomas, bruises and abrasions which constituted slight injuries. From [another] forensic report it is clear that the death of [Mr Bashir Velkhiyev] was caused by traumatic shock as a result of the injuries sustained.", "[It is also clear that] there is a direct link between the injuries caused to [Mr Bashir Velkhiyev] and his death. [The court has established that the first applicant and Mr Bashir Velkhiyev] were held in the Unit with the knowledge of its head, who explained to [officer M.] that their presence on the premises of the Unit was necessary [for operative measures]... In such circumstances [officer M.] had no way of preventing [their unlawful detention and ill-treatment] since he had no authority to do so. Furthermore, during the relevant period federal agencies were conducting operative measures in the region... Representatives of the federal agencies were not subordinate to the local authorities and conducted operative measures independently...” 87.", "On an unspecified date the first applicant sought leave to study the file of criminal case no. 14560079. 88. On 17 April 2007 the Prosecutor’s Office of the Republic of Ingushetia notified the first applicant that his request had been refused on the ground that the investigation was not completed but stayed. The Prosecutor’s Office also informed him that the prosecution of officer B-v., former head of the Organised Crime Unit, had been discontinued owing to his death and that the investigation was consequently stayed.", "However, the criminal case against officer M. had been transmitted to a court. 89. On 21 June 2007 the first applicant lodged a complaint under Article 125 of the Code of Criminal Procedure concerning the refusal to grant him access to the investigation file before the Nazran District Court. It is not clear whether this complaint was examined. 90.", "On 12 May 2009 the Investigative Committee of the Russian Federation Prosecutor’s Office in Ingushetia set aside the decision of 10 July 2005 of the Nazran Prosecutor’s Office to suspend the investigation, and resumed the proceedings. II. RELEVANT DOMESTIC LAW 91. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation may be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37).", "He or she may order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds for initiating a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect, which has to be served on the interested party. The decision is amenable to appeal to a higher‑ranking prosecutor or to a court of general jurisdiction under the procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions taken by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 92. The applicants complained under Article 2 of the Convention that Mr Bashir Velkhiyev had been killed after being tortured by State agents and that there had been no adequate investigation into his death. Article 2 of the Convention provides, in so far as relevant: “1. Everyone’s right to life shall be protected by law. ...” 93.", "The Government conceded that there had been a violation of Mr Bashir Velkhiyev’s right to life, as confirmed by the evidence in criminal case no. 04560079. At the same time they argued that the investigation conducted into his death had been effective and satisfied the requirements of Article 2 of the Convention, as demonstrated by the number of steps taken to establish who had been responsible for the crime. 94. The applicants contested the Government’s argument concerning the investigation conducted into Mr Bashir Velkhiyev’s death.", "According to them, the investigation had been flawed on account of its inability to resolve the contradictions in some witness statements and forensic reports, the failure to question officers of the federal units located in Ingushetia, the repeated suspensions and resumptions and the total lack of activity between 10 July 2005 and 12 May 2009. The applicant also argued that the inadequacy of the investigation was further confirmed by the prosecution and subsequent acquittal of officer M. of the Organised Crime Unit. In their view, officer M. had clearly had no authority over the detention of the first applicant and Mr Bashir Velkhiyev and could not have prevented it. At the same time, the acquittal judgment had referred a number of times to “unidentified officers of the law-enforcement agencies”, which demonstrated the deficiencies of the investigation. A. Admissibility 95.", "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 alleged violation of the right to life of Mr Bashir Velkhiyev (a) General principles 96. 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 within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention.", "Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV). (b) The State’s compliance with Article 2 97. The Court notes that the Government conceded that there had been a violation of Mr Bashir Velkhiyev’s right to life in the present case.", "Having regard to the materials in its possession and to the parties’ submissions, the Court cannot conclude otherwise. 98. Accordingly, there has been a violation of Article 2 of the Convention in respect of Mr Bashir Velkhiyev. 2. The alleged inadequacy of the investigation into Mr Bashir Velkhiyev’s death (a) General principles 99.", "The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998-I). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention.", "They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII). 100. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998-IV). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see, for example, Kaya, cited above, § 87) and to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no.", "21594/93, § 88, ECHR 1999III). 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 (see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard.", "101. In this context, there must also be an implicit requirement of promptness and reasonable expedition. 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 (see Tanrıkulu, cited above, § 109). 102.", "Furthermore, 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 victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 148, ECHR 200-III). (b) Application to the present case 103.", "Turning to the present case, the Court observes that on 20 July 2004 the Nazran Prosecutor’s Office registered information to the effect that, according to a telephone call, the body of Mr Bashir Velkhiyev had been found in office no. 17 of the Organised Crime Unit, and instituted an inquiry into the events. On the same date a forensic examination of his body was ordered. According to the forensic report of 20 July 2004 there were numerous bruises on the body, and death had been caused by traumatic shock as a result of the injuries. On 21 July 2004 the Nazran Prosecutor’s Office instituted an investigation into Mr Bashir Velkhiyev’s death.", "The Court is thus satisfied that the authorities’ reaction was sufficiently prompt. 104. The Court further notes that during the first two months after the institution of the investigation the prosecuting authorities ordered a medical examination of the first applicant and granted him victim status, examined the Organised Crime Unit’s register and questioned numerous witnesses. The latter included the first and second applicants, two neighbours of Mr Bashir Velkhiyev, a medical assistant and officers of the Organised Crime Unit. The latter included officer B., the Deputy Head of the Organised Crime Unit, and officer A., the head of the Second Department of the Organised Crime Unit, to which office no.", "17 belonged. 105. After the investigation was suspended on 27 December 2004 for failure to identify those responsible and subsequently resumed on 14 March 2005, the investigating authorities, in March and April 2005, granted victim status to the second applicant, again questioned the first applicant and questioned other officers of the Organised Crime Unit as well as the officers of the Criminal Investigation Department of the Nazran Department of the Interior who had dealt with the discovery of the car in which the first applicant had been abandoned. The investigation was again suspended on 10 July 2005 and resumed on 12 May 2009. 106.", "The Court observes that in the first year after the institution of the investigation the Nazran Prosecutor’s Office took a large number of investigative steps such as forensic examinations and questioning of numerous witnesses. It further notes that the statements of the officers of the Organised Crime Unit make unequivocally clear that the first applicant and Mr Bashir Velkhiyev were detained and ill-treated by officers of the federal units of the Ministry of the Interior stationed in Nazran following the attack by rebel fighters on 21-22 June 2004, although none of the witnesses was able to identify those officers or even to provide information on the exact unit they belonged to. 107. Having regard to the statements made by members of the Organised Crime Unit, the Court finds it inconceivable that the Unit could host officers of other federal units, and even conduct joint operations with them, without having information on who they were and which units they belonged to (see paragraphs 58 and 86 above). However, it is not the Court’s task to establish the veracity of such statements but to assess the efforts that the investigating authorities undertook to identify the officers responsible.", "108. In this regard the Court notes that, according to the documents available to it, no inspection of the crime scene ever took place. In fact, it appears that in the course of the investigation the competent authorities never visited the premises of the Organised Crime Unit even though, as the investigation was instituted on the day following the events, it was highly probable that the officers involved in the ill-treatment of the first applicant and Mr Bashir Velkhiyev were still there. It is obvious that the failure to take such crucial investigative steps could not but have adversely affected the effectiveness of the entire investigation and also constituted a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).", "109. As for other possible steps aimed at identifying the culprits, although it was at least known to the investigation that they were officers of the federal units of the Ministry of the Interior, the Court has no information to indicate that any requests were addressed to the Ministry concerning the deployment of its federal units or of particular officers in Nazran at the material time. The Court was offered no explanation for such a serious failing. 110. The Court also notes that the investigation was suspended and resumed a number of times and, in particular, that there was a very lengthy period of inactivity between 10 July 2005 and 12 May 2009, for which no explanation has been provided.", "111. It further takes note of the fact that the Government conceded that there had been a violation of Bashir Velkhiyev’s right to life as confirmed by the domestic investigation, which, in their view, had been effective and satisfied the requirements of Article 2. The Court reiterates in this regard that, whereas the domestic investigation indeed established that Bashir Velkhiyev’s death was a result of the ill-treatment to which he and the first applicant had been subjected by State agents, it fell short of the requirement of being capable of leading to the identification and punishment of those responsible (see paragraph 100 above). 112. As regards the prosecution and subsequent acquittal of officer M. of the Organised Crime Unit on charges of abuse of official authority, the Court finds it irrelevant for the purposes of identifying those responsible for the ill-treatment of the first applicant and Mr Bashir Velkhiyev and the latter’s death.", "Although the failure to log their detention is a serious omission which the Court will address below under Article 5 of the Convention, in the circumstances of the present case the charges pressed against M. have no bearing on the effectiveness of the investigation into the ill-treatment and death. 113. At the same time the Court notes that in the decision on officer M.’s acquittal of 28 March 2007 the Nazran District Court found that the first applicant and Mr Bashir Velkhiyev had been held in the Unit with the knowledge of its head, who had explained to officer M. that this was necessary for the purposes of operative measures. It also found that during the relevant period federal agencies had been conducting independent operative measures in the region without being subordinate to the local authorities. 114.", "The Court considers that where both the domestic investigating authorities and the courts have established the responsibility of federal agencies, a failure to identify the individuals responsible may only be attributed to the reluctance of the prosecuting authorities to pursue the investigation. 115. As regards the accessibility of the investigation, the Court notes that, whereas the first applicant was granted victim status on 18 August 2004, the second applicant was granted victim status with several months’ delay, on 24 March 2005. Furthermore, the applicants were not duly informed of the progress of the investigation as no documents from the case file were ever made available to them despite the first applicant’s requests. Accordingly, the investigating authorities failed to ensure that the investigation received the required level of scrutiny and to safeguard the interests of the next of kin in the proceedings.", "116. 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 ill-treatment and death of Mr Bashir Velkhiyev, in breach of Article 2 in its procedural aspect. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT AND MR BASHIR VELKHIYEV 117. The applicants complained under Article 3 of the Convention that the first applicant and Mr Bashir Velkhiyev had been tortured by State agents and that there had been no adequate investigation into these allegations either.", "Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 118. The Government conceded that the first applicant and Mr Bashir Velkhiyev had been subjected to inhuman treatment in breach of Article 3 of the Convention, as confirmed by the evidence in criminal case no. 04560079. At the same time they argued that the investigation conducted had satisfied the requirements of the aforementioned provision. 119.", "The applicants argued that the treatment to which the first applicant and Mr Bashir Velkhiyev had been subjected should be characterised as torture. To support their argument they referred to the severity of the injuries both of them had sustained and which in Mr Bashir Velkhiyev’s case had resulted in death. The applicants also contested the Government’s assertion that the investigation had been effective, on the same grounds as set out in paragraph 94 above in relation to Article 2 of the Convention. A. Admissibility 120. 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 ill-treatment of the first applicant and Mr Bashir Velkhiyev (a) General principles 121.", "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). Article 3, taken together with Article 1 of the Convention, implies a positive obligation on the States to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). 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 an issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no.", "241-A, and Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). (b) The State’s compliance with Article 3 122. The Court notes that the Government conceded that the first applicant and Mr Bashir Velkhiyev had been subjected to treatment in violation of Article 3 of the Convention. 123.", "As to the seriousness of the acts of ill-treatment, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was 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. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see, among other cases, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI, and Mikheyev v. Russia, no. 77617/01, § 135, 26 January 2006). The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance.", "In any event, the Court reiterates that, in respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Selmouni v. France [GC], no. 25803/94, § 99, ECHR 1999-V). 124. The Court finds that in the instant case the first applicant and Mr Bashir Velkhiyev were indisputably kept in a permanent state of physical pain and anxiety owing to their uncertainty about their fate. Furthermore, throughout the period of their detention they were subjected to particularly cruel forms of violence which led to very serious injuries, as attested by the medical reports and the first applicant’s statements and, tragically, by Mr Bashir Velkhiyev’s death as a result of the ill-treatment to which he was subjected.", "The sequence of events and the first applicant’s submissions also demonstrate that the pain and suffering were inflicted on them intentionally, in particular with a view to extracting from them a confession that they had been connected with the attack by rebel fighters on the night of 21 to 22 June 2004. 125. In these circumstances the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention. 126. Accordingly, there has been a violation of the above provision in respect of the first applicant and Mr Bashir Velkhiyev.", "2. The alleged inadequacy of the investigation into the ill-treatment of the first applicant and Mr Bashir Velkhiyev (a) General principles 127. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards, cited above, § 71, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).", "128. Thus, 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, 28 October 1998, §§ 103 et seq., Reports 1998-VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, etc. (see, mutatis mutandis, Salman, cited above, § 106; Tanrıkulu, cited above, §§ 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. Furthermore, the investigation must be conducted expeditiously (see Labita, cited above, §§ 133 et seq., and Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI).", "(b) Application to the present case 129. The Court finds that the domestic investigation fell short of the requirement of effectiveness for the reasons stated in relation to the complaint under Article 2 in paragraphs 103-16 above. 130. Accordingly, there has been a breach of Article 3 in its procedural aspect also. III.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND TO SEVENTH APPLICANTS 131. The second to seventh applicants also relied on Article 3 of the Convention, alleging that the circumstances of Mr Bashir Velkhiyev’s death had caused them profound mental suffering which had been aggravated by the fact that the media had presented him as a rebel fighter killed in an exchange of fire. 132. The Government conceded that the applicants’ suffering as a result of the death of their close relative had led to a violation of Article 3 of the Convention. They maintained, however, that the domestic investigation had been in compliance with that provision.", "133. The applicants reiterated the complaint and contested the Government’s contention that the investigation had been adequate. They argued that it had been ineffective and that the authorities’ failure to duly react had aggravated the applicants’ moral suffering. In particular, when the second applicant had repeatedly tried in person to find out the whereabouts of the first applicant and Mr Bashir Velkhiyev, she had been brusquely rebuffed at every attempt. A. Admissibility 134.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 135.", "The Court notes that in a number of cases it has found that relatives of a disappeared person were themselves victims of a violation of Article 3 of the Convention. Such findings were based on the state of uncertainty the relatives had had to endure owing to their inability to find out the fate of their next of kin and on the authorities’ reluctance to take due measures so as to respond to their enquiries (see, among other cases, Orhan, cited above, §§ 359-60, 18 June 2002, and Khamila Isayeva v. Russia, no. 6846/02, §§ 143-46, 15 November 2007). 136. 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 applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation.", "Relevant elements will include the proximity of the family tie, 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, cited above, § 358). 137. In the present case the Court notes that the second to seventh applicants are the wife and children of Mr Bashir Velkhiyev, who was taken from his home by men in camouflage uniform on the morning of 20 July 2004 and of whose death later that day they learned on 21 July 2004.", "It observes that this case is distinct from the majority of other cases concerning disappearances that have come before the Court, in that Mr Bashir Velkhiyev’s relatives did not have news of him for no more than twenty-four hours. Thus, within the meaning of the Court’s jurisprudence he could not be considered a “disappeared person” for the purposes of the present analysis. In view of the above, the Court considers that in the present case no separate issues arise under this Convention provision beyond those already examined under Article 2 of the Convention above (see Tangiyeva v. Russia, no. 57935/00, § 104, 29 November 2007, and Sambiyev and Pokayeva v. Russia, no. 38693/04, §§ 74-75, 22 January 2009).", "138. In these circumstances, while the Court does not doubt that the death of their husband and father caused the applicants profound suffering, it nevertheless finds no basis for finding a separate violation of Article 3 of the Convention in this context. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 139. The applicants complained under Article 5 of the Convention of the unlawful deprivation of liberty of the first applicant and Mr Bashir Velkhiyev.", "Article 5 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 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.” 140. The Government conceded that the first applicant and Mr Bashir Velkhiyev had been unlawfully deprived of their liberty in violation of Article 5 of the Convention. 141. The applicants emphasised that the deprivation of liberty of the first applicant and Mr Bashir Velkhiyev constituted a complete negation of the guarantees provided by Article 5 of the Convention.", "A. Admissibility 142. 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 143. The Court has previously noted 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. 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 and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).", "144. The first applicant and Mr Bashir Velkhiyev were detained by State agents on 20 July 2004 and brought to the Organised Crime Unit at the Ministry of the Interior of Ingushetia in Nazran. Later that day Mr Bashir Velkhiyev died on the premises of the Organised Crime Unit, while the first applicant was released. Their detention was not logged in any custody records. 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). 145. Having regard to the foregoing and to the parties’ submissions, the Court finds that the first applicant and Mr Bashir Velkhiyev were held in unacknowledged detention without any of the safeguards contained in Article 5. 146. Accordingly, there has been a violation of the right to liberty and security enshrined in Article 5 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 147. The applicants complained that the unlawful deprivation of liberty and subsequent death of Mr Bashir Velkhiyev constituted a violation of their right to respect for their private and family life guaranteed by Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.", "” 148. The Government argued that the unlawful deprivation of liberty and killing of Mr Bashir Velkhiyev constituted violations of Articles 5 and 2 of the Convention respectively and did not raise a separate issue under Article 8. 149. The applicants made no further submissions. 150.", "The Court observes that this complaint concerns the same facts as those examined under Articles 2 and 5 above. Therefore, the complaint should be declared admissible. However, having regard to its conclusions under Articles 2 and 5, the Court considers that no separate issue arises under Article 8 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.", "1 151. The applicants also relied on Article 8 of the Convention and Article 1 of Protocol No. 1, complaining about the search conducted at their home on 20 July 2004. They claimed that it had been unlawful, that some of their belongings had been damaged and that the State agents who conducted the search had stolen their money and some of their belongings. Article 1 of Protocol No.", "1 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.” 152. The Government contested this argument. They submitted that the applicants’ allegations were fully unsubstantiated and uncorroborated either by the findings of the domestic investigation or by any other evidence.", "153. The applicants maintained that the search conducted at their home had not been “in accordance with the law” and could not be regarded as being necessary in a democratic society and had therefore been in breach of Article 8 of the Convention. They also contended that the first applicant could claim to be a victim of the alleged violation because he had been staying overnight at the other applicants’ house. The applicants further maintained that in the course of the search USD 12,000 and RUB 40,000 had been stolen from their house, and claimed that the failure to investigate these allegations amounted to a breach of Article 1 of Protocol No. 1.", "154. The Court retains doubts as to whether the first applicant can claim to be a victim of the alleged violation of Article 8 in this regard, bearing in mind that he did not reside at the house in question but had gone there to visit his brother’s family. However, it does not find it necessary to decide on this issue since this part of the application is in any event inadmissible for the following reasons. 155. The Court reiterates that while in accordance with Article 35 § 1 of the Convention those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective.", "If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002). 156. In the instant case, it does not appear that the applicants properly raised the present complaint before the domestic authorities. The Court notes that on being questioned by the investigator the first and second applicants mentioned the intrusion into the house, the search and the alleged theft when describing the circumstances of the first applicant’s and Mr Bashir Velkhiyev’s detention.", "However, the Court considers that the applicants did not, as such, challenge the intrusion or search, nor did they lodge a complaint with regard to the theft, but rather referred to them as a background to their complaints about Mr Bashir Velkhiyev’s death and his and the first applicant’s detention and ill-treatment. The Court is thus not convinced that this could be regarded as an attempt by the applicants to bring the present complaint, as raised before the Court, to the attention of the national authorities. But even assuming that in the circumstances of the present case no remedies were available to the applicants, the events complained of took place on 20 July 2004, whereas the present application was lodged on 15 August 2006, more than six months later (see Ruslan Umarov v. Russia (dec.), no. 12712/02, 8 February 2007). 157.", "It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 158. The applicants complained under Article 13 of the Convention that they had had no effective domestic remedies in respect of the above alleged violations. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 159.", "The Government made no submissions in this regard. 160. The applicants pointed to the Government’s failure to make any submissions and inferred that the Government did not dispute that there had been a violation of Article 13 of the Convention. 161. The Court observes that this complaint concerns the same issues as those examined in paragraphs 103-116 and 129-130 above under the procedural limb of Articles 2 and 3 of the Convention.", "Therefore, the complaint should be declared admissible. However, having regard to its conclusions above under Articles 2 and 3 of the Convention, the Court considers it unnecessary to examine these issues separately under Article 13 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 162. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 163.", "The second to seventh applicants claimed a total of 205,245 euros (EUR) in respect of pecuniary damage caused by the loss of earning of their deceased husband and father. 164. They submitted that Mr Bashir Velkhiyev had worked on private construction sites and earned RUB 50,000-60,000 per month. They enclosed a statement by the first applicant to this effect. The second to seventh applicants submitted that they would have benefited from Mr Bashir Velkhiyev’s financial support in the amount indicated above.", "Their calculations were based on the retirement age and life expectancy in Russia and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”). 165. The applicants also claimed pecuniary damage on account of the arbitrary deprivation of their possessions which allegedly took place during the search conducted on 20 July 2004. 166. The Government argued that the applicants had not proved that Mr Bashir Velkhiyev had been in employment, let alone substantiated the amount of his earnings.", "They had failed to submit any official documents in this regard, and the first applicant’s statement could not be accepted as reliable evidence for those purposes. The Government also noted that the applicants had omitted to provide any explanation for their failure to produce any documents on Mr Bashir Velkhiyev’s professional occupation and earnings. Furthermore, the Ogden tables did not apply in the Russian Federation, and the applicants had failed to seek compensation before the domestic courts in respect of damage caused by the death of the breadwinner under the Russian Civil Code. Likewise, they had failed to substantiate their assertion that they had relied on the financial support of Mr Bashir Velkhiyev. 167.", "As regards the applicants’ claim for compensation in respect of the pecuniary damage allegedly caused by the arbitrary deprivation of their possessions, the Government pointed out that they had failed to substantiate their assertion that such an incident had ever taken place. Accordingly, the claim should be dismissed. 168. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. Furthermore, 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”.", "169. The Court finds that there is a direct causal link between the violation of Article 2 in respect of Mr Bashir Velkhiyev and the loss by the second to seventh applicants of the financial support which he could have provided. The Court notes, however, that the applicants failed to substantiate their claim that Mr Bashir Velkhiyev had been in employment at the time of his death and to provide proof of the amount of his earnings. The statement by the first applicant cannot be considered as due evidence in this regard. However, the Court finds it reasonable to assume that Mr Bashir Velkhiyev would eventually have had some earnings from which the second to seventh applicants would have benefited (see, among other authorities, Imakayeva v. Russia, no.", "7615/02, § 213, ECHR 2006-XIII (extracts)). 170. The Court further notes that the applicants’ complaint concerning the alleged arbitrary deprivation of their possessions was declared inadmissible at paragraph 157 above. Accordingly, the Court dismisses the claim in this part. 171.", "Having regard to the applicants’ submissions and their failure to substantiate the assertion that Mr Bashir Velkhiyev had been in employment and had earnings at the relevant time, the Court awards EUR 15,000 to the second to seventh applicants in respect of pecuniary damage, plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 172. The first applicant claimed EUR 60,000 in respect of non-pecuniary damage for his unlawful detention, the torture inflicted on him by State agents and the suffering and distress caused by the torture and death of his brother, Mr Bashir Velkhiyev. The second to seventh applicants claimed EUR 100,000 in respect of non-pecuniary damage caused by the illegal detention, torture and eventual killing of Mr Bashir Velkhiyev, their husband and father, and the authorities’ failure to conduct an effective investigation in that regard. They also stated that they had witnessed Mr Bashir Velkhiyevs being apprehended on 20 July 2004 and had seen his body with multiple traces of torture the next day, and had been profoundly affected as a result.", "The third to seventh applicants, who were minors at the time, had developed nightmares, and the seventh applicant suffered from developmental delays, as confirmed by a medical certificate. 173. The Government considered the amounts claimed to be excessive. 174. The Court has found a violation of Articles 3 and 5 of the Convention on account of the unacknowledged detention and torture of the first applicant.", "It has also found a violation of Articles 2, 3 and 5 of the Convention on account of the unacknowledged detention, torture and death of the applicants’ close relative. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. Having regard to these considerations and acting on an equitable basis, it awards the first applicant EUR 55,000 and the second to seventh applicants jointly EUR 60,000, plus any tax that may be chargeable thereon. C. The applicants’ request for an investigation 175. The applicants also requested, referring to Article 46 of the Convention, that an independent investigation which complied with the requirements of the Convention be conducted into their relative’s death.", "They relied in this connection on the cases of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004-II) and Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, § 84, ECHR 2003-VI). 176. The Court notes that in numerous cases in comparable circumstances (see, among others, Kukayev v. Russia, no.", "29361/02, §§ 131‑34, 15 November 2007; Medova v. Russia, no. 25385/04, §§ 142-43, ECHR 2009‑... (extracts); and Lyanova and Aliyeva v. Russia, nos. 12713/02 and 28440/03, §§ 159-60, 2 October 2008), it decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. The Court does not discern any exceptional circumstances which would lead it to reach a different conclusion in the present case. D. Costs and expenses 177.", "The applicants also claimed 5,248.55 pounds sterling (GBP) for the costs and expenses incurred before the Court. They were represented by lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre. They submitted an itemised schedule of costs and expenses that included the drafting of legal documents submitted to the Court, at a rate of GBP 100 per hour, in the amount of GBP 750; administrative costs in the amount of GBP 175; and translation costs in the amount of GBP 4,323.55, supported by invoices. 178. The Government did not dispute the details of the calculations submitted by the applicants, but pointed out that they should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no.", "33914/02, § 61, 1 December 2005). 179. The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary and reasonable (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 180.", "Having regard to the details available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives. 181. 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. 182.", "Having regard to the details of the claims submitted by the applicants and acting on an equitable basis, the Court awards them the amount claimed, together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the United Kingdom as identified by the applicants. E. Default interest 183. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaints under Articles 2, 3, 5, 8, insofar as it is related to unlawful deprivation of liberty, and 13 admissible and the remainder of the application inadmissible; 2.", "Holds unanimously that there has been a violation of Article 2 of the Convention on account of the death of Mr Bashir Velkhiyev; 3. Holds unanimously that there has been a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into Mr Bashir Velkhiyev’s death; 4. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the torture of the first applicant and Mr Bashir Velkhiyev; 5. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the failure to conduct an effective investigation into the torture of the first applicant and Mr Bashir Velkhiyev; 6. Holds by six votes to one that there has been no violation of Article 3 of the Convention in respect of the second to seventh applicants; 7.", "Holds unanimously that there has been a violation of Article 5 of the Convention in respect of the first applicant and Mr Bashir Velkhiyev; 8. Holds unanimously that there is no separate issue under Article 8 of the Convention as regards the detention and death of Mr Bashir Velkhiyev; 9. Holds unanimously that there is no separate issue under Article 13 of the Convention; 10. Holds unanimously (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: (i) EUR 15,000 (fifteen thousand euros) in respect of pecuniary damage to the second to seventh applicants, plus any tax that may be chargeable to the applicants, to be converted into Russian roubles at the rate applicable at the date of settlement; (ii) EUR 55,000 (fifty-five thousand euros) in respect of non‑pecuniary damage to the first applicant, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement; (iii) EUR 60,000 (sixty thousand euros) in respect of non‑pecuniary damage to the second to seventh applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement; (iv) GBP 5,248.55 (five thousand two hundred and forty-eight pounds fifty-five pence), 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 United Kingdom; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 11. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 5 July 2011, 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 separate opinion of Judge Kovler is annexed to this judgment. N.A.V. S.N. PARTLY DISSSENTING OPINION OF JUDGE KOVLER I share the conclusions of the Chamber except on one point, concerning the finding that there has been no violation of Article 3 of the Convention in respect of the second to seventh applicants (the wife and children of Bekhan Velkhiyev).", "According to the account of the circumstances of the case given in the judgment, “[t]he servicemen forced the children into a corner between two houses in the yard and held them there at gunpoint” (§ 11). The wife was also an eyewitness to the search of the house and the abduction of her husband, and a day later buried him in the family cemetery. I do not agree that the situation of “disappeared persons” can be automatically applied in this case. The scope of the present case differs substantially from cases where the “disappeared person” test was applied (see Kurt v. Turkey, 25 May 1998, §§ 130-134, Reports of Judgments and Decisions 1998-III; Gongadze v. Ukraine, no. 34056/02, § 184-196, ECHR 2005-XI; and Luluyev and Others v. Russia, no.", "69480/01, §§ 116-118, ECHR 2006‑XIII). The finding of a substantive violation of Article 2 of the Convention does not cover, to my mind, the mental suffering of the above‑mentioned applicants, close relatives of Bekhan Velkhiyev. It is difficult to imagine that the loss of a close relative in the tragic circumstances of this case cannot form the basis for finding a separate violation of Article 3 of the Convention." ]
[ "SECOND SECTION CASE OF KARAKÓ v. HUNGARY (Application no. 39311/05) JUDGMENT STRASBOURG 28 April 2009 FINAL 28/07/2009 This judgment may be subject to editorial revision. In the case of Karakó v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,András Sajó,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 17 March and 7 April 2009, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no. 39311/05) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Karakó (“the applicant”), on 26 October 2005.", "2. The applicant was represented by Mr L. Kovátsits, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3. The applicant alleged in particular that the Hungarian authorities’ failure to pursue his charges of libel against his political opponent amounted to a breach of his rights under Article 8 of the Convention.", "4. On 5 May 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1955 and lives in Gávavencsellő. 7. The applicant is a Member of Parliament and delegate of the political party Fidesz – the Hungarian Civic Union (the “Fidesz”). During the parliamentary elections of 2002, he was a candidate in one of the electoral districts of Szabolcs-Szatmár-Bereg County.", "On 19 April 2002, prior to the second ballot round, a flyer was distributed in the applicant’s electoral district, signed by L.H., chairman of the Szabolcs-Szatmár-Bereg County Regional General Assembly. The flyer read as follows: “Dr. László Karakó, in his capacity as a member of the Fidesz... in the Regional General Assembly, regularly voted against the interests of the county. Moreover, in the debate concerning the route of the M3 highway, he did not support the version favourable to the county, with which − aside from the county − he probably harmed his own electoral district the most.” 8. On 15 May 2002 the applicant filed a criminal complaint against L.H.", "with the Nyíregyháza District Court, accusing him of libel. Finding that the impugned act fell within the competence of public prosecution, the District Court transferred the case to the Nyíregyháza District Public Prosecutor’s Office in March 2004. 9. The Public Prosecutor’s Office ordered the continuation of the criminal proceedings in April 2004. On 3 May 2004 the Public Prosecutor’s Office terminated the investigation, finding that there had been no crime committed within the realm of public prosecution.", "The applicant stated that this decision was only served on him on 1 December 2004. He lodged a complaint against this decision which was dismissed by the Szabolcs-Szatmár-Bereg County Regional Public Prosecutor’s Office on 22 December 2004. The Prosecutor’s Office was of the view that the impugned act had occurred during the electoral campaign and, as a candidate, the applicant could not have been considered a public official. Therefore, the act did not concern a matter of public prosecution. The applicant submitted an application seeking a review of this decision to the Attorney General’s Office.", "It dismissed his application on 28 February 2005. 10. On 29 January 2005 the applicant, acting as a private prosecutor, submitted an indictment against L.H. to the Nyíregyháza District Court, accusing the latter of having committed libel against him as a public official during official proceedings. 11.", "On 2 May 2005 the District Court dismissed the applicant’s indictment. It found that the impugned statement was a value judgment, with regard to which the limits of acceptable criticism were wider for a politician – who must display a greater degree of tolerance. No appeal lay against this decision. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 12.", "The applicant complained that the authorities failed to protect his rights under Article 8 of the Convention as they did not pursue criminal libel proceedings against a political opponent who had allegedly defamed him. Article 8, insofar as relevant, provides as follows: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ,... or for the protection of the rights and freedoms of others.” A. Admissibility 13. The Government submitted that the applicant should have brought a civil action against L.H.", "seeking damages, which was in their opinion an effective remedy to exhaust in the circumstances. The applicant contested this view. 14. The Court observes that the applicant pressed criminal charges against L.H., accusing him of libel. When the prosecution authorities decided not to pursue the case, he embarked on a private prosecution.", "In this respect, the Court recalls that, where several remedies are available, the applicant is not required to pursue more than one (Granger v. the United Kingdom (no. decision of 9 May 1988) and it is normally that individual’s choice as to which (see mutatis mutandis, Hilal v. the United Kingdom, no. 45276/99, decision of 8 February 2000; Airey v. Ireland, 9 October 1979, § 23, Series A no. 32). Consequently, the Court considers that the present applicant cannot be required to avail himself of an additional legal avenue in the form of a civil action (see mutatis mutandis Barta v. Hungary, no.", "26137/04, § 47, 10 April 2007). It is satisfied that the applicant has thus exhausted domestic remedies. Consequently, the Government’s objection must be dismissed and the complaint declared admissible. B. Merits 1.", "The parties’ arguments 15. The Government submitted that it was primarily for the national authorities to assess whether or not the impugned conduct amounted to a criminal act. They recalled the principle clearly set out in the Court’s case-law according to which the classification of a statement as a fact or as a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities, in particular the domestic courts. 16. The applicant argued that neither the prosecution authorities nor the District Court had carried out a thorough examination of his criminal complaint.", "As a result, his right to reputation, which the Hungarian authorities were under an obligation to protect pursuant to Article 8 of the Convention, had been violated. He stressed that the impugned statement had targeted him as an official rather than a politician – a consideration ignored by the domestic authorities. In his view, the ruling of the domestic court was also incompatible with the second paragraph of Article 10 of the Convention, which provides insofar as relevant as follows: \"1. Everyone has the right to freedom of expression. ... 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 ... the protection of the reputation or rights of others ...\" 2. The Court’s assessment 17. The Court is satisfied that the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation, is one of appearance only. To hold otherwise would result in a situation where – if both reputation and freedom of expression are at stake – the outcome of the Court’s scrutiny would be determined by whichever of the supposedly competing provisions was invoked by an applicant. 18.", "In the instant case, the applicant submitted that, by refusing to prosecute his opponent for allegedly ruining his reputation in the voters’ eyes, the Hungarian authorities had failed to protect his right to private life as defined by Article 8. For the Court, this claim implies that the right to reputation is an independent right protected by Article 8 of the Convention which the State has a positive obligation to protect. 19. At the outset, the Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect. In this field, the nature of the State’s obligation depends on the aspect of private life concerned, and the choice of measures designed to secure compliance with that obligation falls within the Contracting States’ margin of appreciation.", "The Court considers, as a minimum requirement, that an effective legal system must be in place and operating for the protection of the rights falling within the notion of “private life”, and it is satisfied that such a system was indeed available to the applicant in the present case. 20. In regard to cases in which a violation of the rights guaranteed in Article 8 is asserted and the alleged interference with those rights originates in an expression, the Court points out that the protection granted by the State should be understood as one taking into consideration its obligations under Article 10 of the Convention. It is the latter provision which has been specifically designed by the drafters of the Convention to provide guidance concerning freedom of speech – also a core issue in the present application. 21.", "In addressing this problem, the Court reiterates that “private life” includes personal identity (Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004–VI). The Court further observes that the Convention, as interpreted in the Von Hannover judgment regarding the individual’s image, extends the protection of private life to the protection of personal integrity. This approach itself results from a broad interpretation of Article 8 to encompass notions of personal integrity and the free development of the personality. 22.", "Concerning the question whether or not the notion of “private life” should be extended to include reputation as well, the Court notes that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways. In the legislation of several Member States, reputation has traditionally been protected by the law of defamation as a matter related primarily to financial interests or social status. 23. For the Court, personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society – perhaps rightly so – but not one’s integrity, which remains inalienable. In the Court’s case-law, reputation has only been deemed to be an independent right sporadically (see Petrina v. Romania, no.", "78060/01, 14 October 2008, and Armonienė v. Lithuania, no. 36919/02, 25 November 2008) and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life. However, in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant’s reputation alone which was at stake in the context of an expression made to his alleged detriment. 24.", "The Court reiterates that paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation (see paragraph 16 above). In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech. 25. The Court is therefore satisfied that the inherent logic of Article 10, that is to say, the special rule contained in its second paragraph, precludes the possibility of conflict with Article 8. In the Court’s view, the expression “the rights of others” in the latter provision encompasses the right to personal integrity and serves as a ground for limitation of freedom of expression in so far as the interference designed to protect private life is proportionate.", "26. It follows that, notwithstanding the fact that the applicant claims a violation of Article 8 of the Convention, the Court has to determine whether the principles inherent to Article 10 were properly applied by the Hungarian authorities. 27. The Court observes that the impugned statement was found to be a value judgment and, as such, a protected expression under Hungarian law. In reaching this conclusion, the authorities took into account that the applicant was a politician, active in public life, and that the statement was made during an election campaign in which he was a candidate, and constituted a negative opinion regarding the applicant’s public activities.", "On these grounds, they found that it was constitutionally protected. The Court is satisfied that this decision was in conformity with Convention standards (for a summary of the relevant case-law, see Feldek v. Slovakia, no. 29032/95, §§ 72-74, ECHR 2001–VIII; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003–XI). 28.", "The above considerations enable the Court to find that the applicant’s allegation that his reputation as a politician has been harmed is not a sustainable claim regarding the protection of his right to respect for personal integrity under Article 8 of the Convention. A limitation on freedom of expression for the sake of the applicant’s reputation in the circumstances of the present case would have been disproportionate under Article 10 of the Convention. 29. Consequently, the Court concludes that there has been no violation of Article 8 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 30. Relying on Article 6 of the Convention, the applicant complained of unfairness and the excessive length of the proceedings in which he had sought the prosecution of his opponent. The Court reiterates that Article 6 does not grant a right or apply to proceedings with a view to having third persons convicted of a criminal offence. This complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. 31.", "The applicant also complained under Article 10 of the Convention about the outcome of the proceedings. The Court observes in this connection that the impugned statement was not made by the applicant but by his political opponent. It follows that – the applicant’s own freedom of speech not having been at stake – the facts of the case do not give rise to any issue under Article 10 from the applicant’s perspective. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. 32.", "Lastly, the applicant complained under Article 13 of the Convention that the procedures before the Hungarian authorities did not provide him with an effective remedy concerning the alleged infringement of his rights under Article 8. However, the Court notes that the applicant’s complaint was fully examined by the prosecuting authorities and a court. Consequently, the applicant had adequate domestic remedies at his disposal and his complaint under Article 13 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 28 April 2009, 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 partly concurring opinion of Judge Jočienė is annexed to this judgment. F.T. S.D.", "PARTLY CONCURRING OPINION OF JUDGE JOCIENE 1. I agree with the majority’s finding in this case that there has been no violation of Article 8 of the Convention and I voted to that effect. I also agree with the majority that paragraph 2 of Article 10 of the Convention refers to the reputation aspect and that freedom of expression and the right to protection of privacy, including reputation, should be carefully balanced. Nevertheless, I think that protection of reputation, as an aspect, indistinguishable from a person’s privacy (personal integrity) should be concentrated under and protected by Article 8 of the Convention. Paragraph 2 of Article 10 should be applicable only in cases where the balancing test must be carried out in order to establish the necessity and proportionality of an interference with freedom of expression.", "2. With regard to the arguments used in the analysis, I note that in paragraph 21 of the judgment, the majority, referring to the case of Von Hannover v. Germany (no. 59320/00, § 50, ECHR 2004-VI), observed that the Convention, as interpreted in the Von Hannover judgment regarding an individual’s image, extends the protection of a person’s private life to the protection of personal integrity. However, the Court said at § 50 of that judgment that the concept of private life “extends to aspects relating to personal identity, such as a person’s name (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person’s picture (see Schüssel v. Austria (dec.), no.", "42409/98, 21 February 2002)”. This means, in my opinion, that the Court interpreted a person’s picture as part of a person’s private life relating to his personal identity (and not personal integrity). Furthermore, the Court held in the same § 50 of that judgment that “private life ... includes a person’s physical and psychological integrity [...].” 3. In the case of Pfeifer v. Austria (no. 12556/03, §§ 33-34), with regard to the applicability of Article 8, the Court also reiterated that “private life” extends to the individual’s personal identity, such as a person’s name or picture, and, furthermore, includes a person’s physical and psychological integrity.", "In § 34 of the Pfeifer judgment, the Court found that the publication of a person’s photograph fell within the scope of his or her private life even where the person concerned was a public figure (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover, cited above, § 53). Therefore, in my opinion, and I conclude on this point, this protection of an individual’s image or photograph extended the guarantee of respect for private life to the protection of personal identity, but not personal integrity. 4. With regard to paragraphs 22 and 23 of the present judgment and especially the question (see paragraph 22), as to whether the notion of “private life” should be extended to include reputation as well, I think that such a question is unnecessary, because the jurisprudence of the Court has been clearly developed on this point.", "In the said Pfeifer v. Austria case the Court stated: “It has already been accepted in the Convention organs’ case-law that a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”. In another case, Chauvy and Others v. France (no. 64915/01, § 70, ECHR 2004-VI), concerning a complaint under Article 10, the Court found that a person’s reputation, which was affected by the publication of a book, was protected by Article 8 as part of the right to respect for private life and had to be balanced against the right to freedom of expression. This approach was followed in Abeberry v. France ((dec.), no. 58729/00, 21 September 2004) and Leempoel & S.A. ED.", "Ciné Revue v. Belgium (no. 64772/01, § 67, 9 November 2006). I agree that the right to the protection of a person’s reputation and honour, as such, was left open in Gunnarsson v. Iceland ((dec.), no. 4591/04, 20 October 2005). However, in the Pfeifer case (§ 35), the Court came to the conclusion that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”, and Article 8 therefore applies.", "5. The same approach was followed in the more recent judgment of Petrina v. Romania (no. 78060/01, judgment of 14 October 2008, §§ 28-29), to which the majority make no reference, but where the Court confirmed that a person’s reputation is protected by Article 8 of the Convention as an integral part of his or her private life. Therefore, I think that the question in paragraph 22 of the present judgment is not needed for the reasons explained above. Furthermore, I cannot agree with the majority’s position in paragraph 23 that a person’s reputation has been deemed to be an independent right only sporadically, or mostly when the factual allegations were of a serious nature.", "In my opinion, it is clear from the jurisprudence of the Court which I have cited above that a person’s reputation falls within the scope of “private life” and attracts the protection of Article 8, not only sporadically but whenever it is justified according to the circumstances of the concrete case. 6. I am not sure that the reference at paragraph 23 of the present judgment to the case of Armonienė v. Lithuania (no. 36919/02, 25 November 2008) is needed, for the very simple reason that, like the case of Biriuk v. Lithuania (no. 23373/03, 25 November 2008), that applicant was not complaining about a loss of reputation, or any related aspect, due to the impugned publications.", "Ms Armonienė complained about a breach of privacy under Article 8 (in general), relying on the fact that the State had failed to secure her family’s right to respect for their private life as a result of the derisory award for non-pecuniary damages to her late husband, even though the domestic courts had found that a serious violation of his privacy had been committed by the newspaper Lietuvos Rytas. This was not therefore a question of reputation, but a question of statutory ceilings which restricted the compensation obtainable to a very limited amount. 7. Lastly, taking into account the fact that, in my opinion, the Court’s jurisprudence is not clear enough to answer the question whether reputation, as a part of the notion of “private life” and protected under Article 8 of the Convention (which is a clear from our jurisprudence), is protected as a separate aspect or is included in the protection of personal identity, distinguishable from personal integrity (as the majority propose in paragraphs 22 and 23 above), that matter should be left open for the time being and, in my view, needs careful future consideration." ]
[ "FIFTH SECTION CASE OF T.A. v. SWEDEN (Application no. 48866/10) JUDGMENT STRASBOURG 19 December 2013 FINAL 19/03/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of T.A.", "v. Sweden, 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 19 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48866/10) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national (“the applicant”) on 23 August 2010. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2.", "The applicant was represented by Mr A. Soussi, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson, of the Ministry for Foreign Affairs. 3. The applicant alleged, in particular, that his deportation to Iraq would involve violations of Articles 2 and 3 of the Convention. 4.", "On 25 August 2010 the President of the then Third Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be deported to Iraq until 22 September 2010. On 21 September, 2 and 23 November and 7 December 2010 this indication was prolonged, eventually until further notice. 5. On 22 September 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant, who was born in 1979, is a Sunni Muslim from Baghdad. He is married and has a son. 7. The applicant arrived in Sweden on 11 November 2007 and applied for a residence permit the following day and for asylum on 20 May 2008.", "The Migration Board (Migrationsverket) held an interview with him in the presence of his legal counsel and an interpreter. 8. The applicant stated in essence the following in support of his application. He and his family lived in Karrada, a Shi’a-dominated district of Baghdad. In June 2003 he began working for a security company.", "After a year and a half he switched to another company in the same business and in January 2007 he began working for the biggest security company in the country which had connections to the US military. In May 2007 his clan disowned him due to this affiliation. In his work he had access to the “Green Zone”, the international area of Baghdad. He also had the right to bear arms and to search suspected criminals. In October 2007 members of the Badr militia visited his house and told his wife that he should appear at their office for questioning.", "Some days later the al-Mahdi militia, which cooperated with the Badr militia in his neighbourhood, made the same demand. On 20 October 2007 he received a threatening letter pasted to his car, urging him to stop working for the US troops or else he would be killed. He asked his employer for help, but did not get any. On 1 November 2007 his house was hit by shell fire and was completely destroyed. No other house in the street was hit.", "He suspected that the two militias were behind the attack. The police arrived, but did not take any action. He and his family went to live with his parents-in-law in another part of Karrada. Three days later he left for Sweden, leaving his wife and son behind in Baghdad. In October 2008 they were assaulted at the home of his parents-in-law by men who were asking about his whereabouts.", "In late 2008 a friend visited his destroyed house in Baghdad and found another threatening letter addressed to the applicant which was forwarded via the applicant’s wife to Sweden. The applicant claimed that he would risk persecution and inhuman treatment from the militias and his clan if he were to return to Iraq. He was also worried that he could be badly treated by the US military which may believe that he had disclosed information about them and because he brought with him his service identification cards when he left Iraq. 9. On 3 March 2009 the Migration Board rejected the application and ordered the applicant’s deportation to Iraq.", "The Board held that he had not proved his identity, but that he had made it plausible that he was from Iraq. It further considered that the situation in Iraq as such did not constitute grounds for asylum. Noting that the applicant had not had any difficulties for religious or political reasons and that he had been able to live in a Shi’a-dominated area without anything having happened to him until October 2007, the Board concluded that the threats against him were local and related to the militias in question. It could not be considered as persecution, however, and there was no indication that he risked persecution upon return. Nor did the Board find that he risked other forms of ill-treatment.", "In so finding, it noted that he had not been subjected to such treatment previously. Since the applicant had been working for security companies and thereby cooperated with the American troops since 2003, the Board found his claim that he had received threats only in October 2007, four years later, to be peculiar. As to the alleged threats by the militias, the applicant had not been able to state who the people visiting his house were or what had been the purpose of their visits. His accounts in these respects were, according to the Board, mere speculation. Moreover, if the threats concerned his work for the American troops, the applicant had since ended that job and the threats could therefore no longer be considered valid.", "Also the applicant’s accounts of the destruction of his house and the attack on his wife and son lacked details as to who the perpetrators were and why the actions had been undertaken. Consequently, no connection had been shown between the militia visits and the alleged subsequent events and the latter events did not indicate that the militia groups were still looking for him. In this context, the Board also noted that a remarkably long period of time had passed between the applicant’s leaving Iraq and the alleged attack on his family members. It was further deemed peculiar that someone should have left a threatening letter at his demolished house long after his escape from the country. Furthermore, the applicant had not been able to explain why his clan would pose a threat to him.", "Finally, the Board noted that the incidents to which the applicant claimed to have been exposed were locally restricted to the Shi’a-dominated Karrara district; as a Sunni Muslim he should be able to move to a Sunni part of Baghdad. 10. The applicant appealed, adding that, if he were to be removed to Iraq, he would be split up from his family, who had moved to Syria. Furthermore, he claimed that he had not ended his employment at the security company and that, thus, the connection to the American troops remained. 11.", "On 2 March 2010 the Migration Court (Migrationsdomstolen) held an oral hearing in the case. The applicant was represented by his counsel and assisted by an interpreter. He later requested a further hearing, at which he wished that his former boss at one of the security companies in Iraq be heard by telephone. On 24 March 2010 the court rejected this request, finding it unnecessary, and instead gave the applicant the opportunity to finalise his submissions in writing. 12.", "On 16 April 2010, after having rejected the applicant’s renewed request for a further hearing, the Migration Court upheld the decision of the Board, generally agreeing with its conclusions. The court considered that, even though the applicant and his family had been assaulted in Iraq, there was no evidence of a remaining threat against him upon return. In so finding, the court noted that it had not been shown that there was a connection between the various incidents and that the applicant did not know who were the perpetrators or why they had carried out the acts. Furthermore, almost a year had passed between the destruction of the house and the assault on his family. His wife and child had stayed in Baghdad during this period and, if any group had had an interest in him to the alleged extent, they would in all likelihood have searched for him more actively.", "The court further took into account that more than two years had passed since the applicant had stopped working for the security companies and, consequently, that it was not likely that he would be exposed to further threats due to his former work if he were to return to Iraq. Also, many of the incidents dated back a number of years and had to be seen as consequences of the difficult general security situation in Iraq in 2007. 13. On 4 June 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused the applicant leave to appeal. 14.", "In September and October 2010, at the Court’s request, the applicant presented additional information, including copies of identification cards, certificates and letters of recommendation to show that he had been working for the security companies in question. He also submitted photos to prove that he had been training with the US military and photos of his wife and child to show that they had been injured in the alleged assault in October 2008. Additionally, he submitted several documents in Arabic and translations into Swedish. The documents, a report to the police by the applicant’s brother, instructions of an investigating judge, witness statements by the brother and neighbours and a police account of measures taken – all dated in October 2008 –, provide the following account of events. On 10 October 2008 at 10 p.m., a black car stopped outside the applicant’s house and four men got out of the car and went into the house.", "They rummaged through the house looking for the applicant and destroying property in the process. However, the brother told the police that the applicant was at work in the “Green Zone” at the time and therefore was not at home. The four men left a threatening note for the applicant. The alleged note was submitted to the Court with a translation. II.", "RELEVANT DOMESTIC LAW 15. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). 16. An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1).", "This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). 17. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status.", "According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 18. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1).", "In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 19. Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal. III. RELEVANT INFORMATION ABOUT IRAQ A.", "General human rights situation 20. On 31 May 2012 the United Nations High Commissioner for Refugees (UNHCR) issued the latest Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq (hereafter “the UNHCR Guidelines”). They contain the following account (at p. 8): “[A]rmed groups opposed to the Iraqi Government remain active and capable of disrupting the security environment with regular mass casualty attacks, often directed at Shi’ite civilians, reportedly aiming to reinvigorate sectarian violence. Armed groups are also thought to be responsible for targeted attacks on government and security officials, politicians, tribal and religious leaders, and members of religious and ethnic minorities, among others. Occasionally, local cells manage to coordinate attacks across the country.", "The number of civilian casualties, though less than at the peak of violence in 2006 and 2007, remains nonetheless significant with around 4,000 civilians killed in both 2010 and 2011, respectively. At least 464 civilians were killed in January 2012, in what appeared to be a surge in mass casualty attacks. Shi’ite civilians have been the most affected. After a short lull in violence, several major attacks across central Iraq were again reported in late February, March and April 2012. These casualty figures are indicative of the significant risks still faced by Iraqi civilians.", "The number of civilian deaths from suicide attacks and car bombs decreased in 2011 compared to previous years, to an average of 6.6 per day. While these attacks still account for the highest number of civilian deaths each month, the number of civilians killed from gunfire/executions rose to an average of 4.6 per day in 2011. This suggests that an increasing number of Iraqis, especially government and security officials, are being individually targeted. Violence is mostly concentrated in the predominantly Sunni or mixed central governorates of Al-Anbar, Baghdad, Diyala, Ninewa, Kirkuk, and Salah Al-Din, but occasionally moves into the mainly Shi’ite governorates further south. Armed Sunni groups such as Al-Qa’eda in Iraq and Ansar Al-Islam are thought to be responsible for most of the violence.", "Shi’ite armed groups have to a large extent been integrated into the ISF [Iraqi security forces] and the political process, though they reportedly maintain their independent military capabilities and at times threaten to use it to further their political agendas. Armed groups target civilians on the basis of their (imputed) political views, religion, ethnicity, social status or a combination of reasons. As a result of the weak law enforcement and justice system, persons at risk of persecution are reportedly unable to find protection or judicial redress. Observers mention undue political influence, the lack of trained legal professionals and corruption as further obstacles to the administration of justice, including in the Kurdistan Region. Legal professionals continue to work in a very difficult security environment, and remain a target of armed groups.", "Crime is widespread and some armed groups reportedly engage in extortion, kidnappings and armed robberies to fund their other, politically – or religiously, or ideologically – motivated activities, conflating acts of persecution and criminality. Consequently, the line between persecution and criminality appears to be increasingly blurred.” The UNHCR Guidelines also describe the armed Shi’ite groups (at pp. 11-12): “After 2003, a range of armed Shi’ite groups reportedly started to compete for power and religious influence in Iraq, at times resulting in violent intra-Shi’ite clashes. This was the case, in particular, between the Badr Corps, the armed wing of the Supreme Council for the Islamic Revolution in Iraq / Islamic Supreme Council of Iraq, and the Jaysh Al-Mahdi, the armed wing of the Sadrist Movement led by cleric Muqtada Al-Sadr. Jaysh Al-Mahdi became the main Shi’ite opposition to the foreign coalition forces in Iraq after the fall of the former regime in 2003.", "It staged two uprisings against US forces in April and August 2004 and launched numerous attacks against mainly US military targets. Attacks on US forces peaked in mid-2007, when Jaysh Al-Mahdi was responsible for the majority of all US casualties. Both the Badr Corps and the Sadrists have integrated into the political process and the Sadrists have become a major political force and main backer of Prime Minister Al-Maliki. However, none of these groups have given up military capacity and, in the case of Jaysh Al-Mahdi / Promised Day Brigades, sporadic attacks on US targets continued into 2011. Some members of the Badr Corps, and to a lesser extent the Jaysh Al-Mahdi, have been integrated into the ISF.", "Armed Shi’ite groups are accused of having a major role in the sectarian cleansing that followed the February 2006 Al-Askari shrine bombing. Armed Shi’ite groups were significantly affected by the ISF-led offensives in southern Iraq and Sadr City/Baghdad in 2007–2008. Muqtada Al-Sadr faced apparent difficulties in retaining control over Jaysh Al-Mahdi, and the group splintered into various factions with differing agendas (so-called “Special Groups”), some of them engaging in mainly criminal activities. In recent years, three main armed Shi’ite groups have been active: Jaysh Al-Mahdi / Promised Day Brigades; Asa’ib Ahl Al-Haq, which was created by former Sadrist Qays Al-Khazali; and Kata’ib Hezbollah. In 2011, these groups claimed responsibility for lethal attacks against the USF-I [United States Forces in Iraq] aimed at expediting the withdrawal of foreign forces from Iraq.", "Their presence is mainly reported in Baghdad, Basrah, Missan, Thi-Qar, Kerbala, Babel, Najef, Wassit and Diwaniyah. Armed Shi’ite groups have also been reported to engage in criminal activities such as kidnappings, extortion and oil smuggling. Armed Shi’ite groups boasted that the US troop withdrawal from Iraq in mid-December 2011 was a “historic victory”. It remains to be seen how their agendas will evolve in the aftermath of this withdrawal. Reportedly, there continue to be regular rocket attacks against the US consulate in Basrah, which houses almost 1,000 US diplomatic and security personnel.", "At the same time, Asa’ib Ahl Al-Haq announced its decision to lay down its arms and engage in the political system as an opposition party. This decision heightened existing tensions with the Sadrists. Muqtada Al-Sadr has repeatedly warned that the Promised Day Brigades stand ready to attack any “oversize” US diplomatic presence in Iraq. There are no indications that Kata’ib Hezbollah seeks to integrate into the political system. While armed Shi’ite groups have in the past publicly focussed on attacking the MNF-I [Multi-National Forces in Iraq] / USF-I, there are reports that they also single out Iraqis of various profiles for kidnapping and assassination, including former Ba’athists, security and government officials, political/religious rivals, and persons considered as “collaborators” with the foreign forces, especially the US.", "Further, Shi’ite groups have also enforced strict Islamic rules of behaviour and dress, and are considered to be responsible, inter alia, for attacks on women not wearing the veil, persons engaged in selling liquor, and LGBTI persons.” 21. In its Report on Human Rights in Iraq: July – December 2012, published in June 2013, the Human Rights Office of the United Nations Mission for Iraq (UNAMI) gave, inter alia, the following summary (at p. vii): “Violence and armed violence continued to take their toll on civilians in Iraq. According to the Government of Iraq, 1,704 civilians were killed and 6,651 were injured in the second half of 2012, resulting in a total of 3,102 killed and 12,146 injured for 2012. According to UNAMI, 1,892 civilians were killed and 6,719 were injured in the last six months of 2012, resulting in a total of at least 3,238 civilians who were killed and 10,379 who were injured for the year. These figures indicate that the trend of recent years of a reduction in the numbers of civilian casualties has reversed and that the impact of violence on civilians looks set to increase in the near to medium future.", "Terrorists and armed groups continued to favour asymmetric tactics that deliberately target civilians or were carried out heedless of the impact on civilians. Political instability and regional developments continued to impact negatively on the security situation in Iraq, with its concomitant toll on civilians. Although the Government takes the impact of violence on civilians extremely seriously and has taken measures to enhance security, more needs to be done to ensure the proper coordination of financial, medical and other forms of support for the victims of violence.” 22. The UK Border Agency Iraq Operational Guidance Note of December 2012 describes the general security situation thus (at pp. 21-22): “3.6.2 The security situation in Iraq continues to affect the civilian population, who face ongoing acts of violence perpetrated by armed opposition groups and criminal gangs.", "In particular, armed groups continue to employ tactics that deliberately target crowded public areas and kill and maim civilians indiscriminately. While some attacks appear to be sectarian in nature, frequently targeting religious gatherings or residential areas, others seem random, aimed at creating fear and terror in the population at large and casting doubt over the ability of the Government and Iraqi security forces to stem the violence. Assassinations also persist across the country, targeting, inter alia, Government employees, tribal and community leaders, members of the judiciary and associated persons. 3.6.3 Apparently making use of the political wrangling which has followed the elections for Iraq’s Council of Representatives (CoR) held on 7 March 2010, armed Sunni groups (such as Al-Qaeda in Iraq) have stepped up attacks since December 2011. These attacks have been carried out primarily against Shi’ite civilians in what appears to be an effort to stir sectarian tensions and undermine confidence in the ISF and, ultimately, the Iraqi Government.", "The political stalemate also comes at an uncertain period in the wider region: the repercussions of ongoing unrest and tensions in Syria and Iran, with which Iraq shares porous borders and political and economic ties, are not yet known. Iraq’s political difficulties have also reportedly increased tensions with neighbouring Turkey.” 23. In a country guidance determination, HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), delivered on 13 November 2012, the UK Upper Tribunal (Immigration and Asylum Chamber) reached, inter alia, the following conclusions (at p. 2): “ii. As regards the current situation, the evidence does not establish that the degree of indiscriminate violence characterising the current armed conflict taking place in the five central governorates in Iraq, namely Baghdad, Diyala, Tameen (Kirkuk), Ninewah, Salah Al-Din, is at such a high level that substantial grounds have been shown for believing that any civilian returned there would solely on account of his presence there face a real risk of being subject to that threat. iii.", "Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) [of the Refugee Qualification Directive 2004/83/EC] for civilians who are Sunni or Shi’a or Kurds or have former Ba’ath Party connections: these characteristics do not in themselves amount to “enhanced risk categories” under Article 15(c)’s “sliding scale” ...\" B. The specific situation of certain groups, in particular persons (perceived to be) affiliated with the former multi-national forces 24. The UNHCR Guidelines contain the following account in regard to individuals affiliated with the USF-I, foreign governments, non-governmental organisations (NGOs) or international companies (at pp. 16-17): “Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion. Since 2003, both Sunni and Shi’ite armed groups are known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, subcontractors and others affiliated with the MNF-I/USF-I, foreign governments, international companies or organizations, reportedly to deter others from working for them.", "Ahead of the full USF-I withdrawal from Iraq, achieved by mid December 2011, advocates and Iraqis (formerly) employed with the US military raised concerns about being left without protection. There are fears that employee records maintained by the USF-I may have leaked to armed groups. Perpetrators of violence against Iraqis affiliated with the MNF-I/USF-I are both Sunni and Shi’ite armed groups. It is reported that there were no contingency plans to provide emergency protection to former Iraqi employees after the USF-I withdrawal. Individuals who have worked for the MNF-I/USF-I may be unable to find new employment if their former employer becomes known.", "Many former USF-I employees allegedly hesitate to reveal their prior work experience to a potential new employer for fear of retribution.” 25. The UK Border Agency Iraq Operational Guidance Note states as follows (at pp. 23-25): “3.6.11 Almost all attacks are currently attributable to Sunni extremists and target current Iraqi Security Forces, Government of Iraq (GoI) employees, or very occasionally Shia gathering areas. Most incidents are targeted attacks against specific individuals, with only a small number of indiscriminate attacks. ... ... 3.6.14 Shia militias have predominantly been seen to operate in most areas of eastern Baghdad, generally emanating from the Sadr City area.", "They do also have a presence in the more ethnically mixed areas of central and western Baghdad. Shia militia tend to have a far higher capability to carry out lethal acts, though their intent is presently very low. Their agenda is far more linked to the political situation and as their leadership attempt to move into power-brokering they have far less of an inclination to use violence openly. Previously most of their attacks specifically targeted US Forces, though these started to tail off mid 2011 with the understanding that US Forces would withdraw entirely by the end of the year. In 2012 thus far it would be difficult to attribute more than a handful of incidents to Shia militia, and most of these would be down to in-fighting between different factions, or criminal disputes.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 26. The applicant complained that his return to Iraq would involve a violation of Articles 2 and 3 of the Convention. These provisions read as follows: Article 2 “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 27. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been invoked or established. It must therefore be declared admissible. B.", "Merits 1. The submissions of the parties (a) The applicant 28. The applicant submitted essentially the same claims and circumstances as those presented before the Swedish authorities. He stated that the risks facing him in Iraq had increased since the US troops had left the country. He maintained that, due to his work for security companies that had cooperated with those troops, he risked being apprehended and tortured and possibly killed by the Badr militia.", "Allegedly, the Iraqi authorities did not have the ability or will to protect him. The applicant further asserted that there were no inconsistencies in his statements and that this had been noted in the Migration Court’s judgment. Moreover, there was no relevant internal flight alternative for him. (b) The Government 29. The Government acknowledged that, although recent country-of-origin information suggested that the overall security situation in Iraq and in Baghdad had improved, serious concerns remained regarding the sustainability of the improvement.", "Nevertheless, in their view, belonging to a certain professional sector or cooperating with international or Iraqi forces or Iraqi authorities was not, of itself, a determining risk factor. Furthermore, a person in one of these categories who had a localised threat would be able to relocate to an area where that threat did not exist. In any event, the need of protection should be assessed on an individual basis. 30. As to the present case, the Government first asserted that the Migration Board and the courts had made thorough assessments.", "In the proceedings, the applicant had been given many opportunities to present his case, assisted by legal counsel and an interpreter. The Migration Board conducted an interview with the applicant and the Migration Court held an oral hearing. Moreover, having regard to the expertise held by the migration bodies, the Government maintained that significant weight should be given to their findings. 31. In regard to the applicant’s personal risks, the Government pointed out that the Migration Board and the Migration Court, while not questioning the applicant’s general credibility, had found reason to question some of his statements.", "The Government further asserted that the Arabic documents concerning events in October 2008 revealed circumstances which were inconsistent with information supplied by the applicant himself. For instance, the four men mentioned in the documents were supposed to have entered a house that had allegedly been completely destroyed the previous year. Furthermore, the applicant’s brother had explained that the applicant had been at work, although he had already been in Sweden for almost a year. In the Government’s opinion, these inconsistencies gave strong reasons to question the authenticity of the documents. They also gave cause to question certain details of the applicant’s story to a greater extent than the Swedish migration bodies had done.", "32. The Government submitted that the identities of those who had sent threatening letters to the applicant, attacked his house and assaulted his wife and child were unknown and that the applicant’s claim that they had been members of the Badr and al-Mahdi militias was merely based on speculation on his part. Further, the applicant’s wife and child had remained in Baghdad for a year after the first incident and, during this time, the applicant had been sought after on one single occasion; if he had been of great interest to any particular group, he would have been sought after more actively. The Government also pointed out that no information about incidents occurring later than 2008 had been submitted by the applicant. Also, in the threatening letters he had been urged to stop working for the US troops and considerable time had now passed since he carried out any actual work for the security company with connections to the Americans.", "2. The Court’s assessment (a) General principles 33. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67; Boujlifa v. France, judgment of 21 October 1997, Reports 1997‑VI, p. 2264, § 42; and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII).", "However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...). 34. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assesses the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos.", "46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials.", "However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40). 35. The assessment of the existence of a real risk must necessarily be a rigorous one (Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3.", "In this respect, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008). 36.", "In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other contracting or non-contracting states, agencies of the United Nations and reputable non-governmental organisations (NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008). 37.", "The above principles apply also in regard to Article 2 of the Convention (see, for example, Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009). (b) The general situation in Iraq 38. The Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (H.L.R. v. France, cited above, § 41).", "However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (NA. v. the United Kingdom, cited above, § 115). 39. While the international reports on Iraq attest to a continued difficult situation, including indiscriminate and deadly attacks by violent groups, discrimination as well as heavy-handed treatment by authorities, it appears that the overall situation has been slowly improving since the peak in violence in 2007.", "In the case of F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009), the Court, having at its disposal information material up to and including the year 2008, concluded that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country. Taking into account the international and national reports available today, the Court sees no reason to alter the position taken in this respect four years ago. 40.", "However, the applicant is not in essence claiming that the general circumstances pertaining in Iraq would on their own preclude his return to that country. Instead, he asserts that this situation together with the fact that he has worked at security companies with connections to the former US forces in Iraq – and allegedly has been subjected to attacks and threats from two militias on account of that employment – would put him at real risk of being subjected to treatment prohibited by Articles 2 and 3. (c) The particular circumstances of the applicant 41. The Court first notes that the applicant was heard by both the Migration Board and the Migration Court, that they carefully examined the applicant’s claims and that they delivered decisions containing extensive reasons for their conclusions. 42.", "The Court further notes from recent country information that private militias remain active in Iraq. The two Shi’ite militias allegedly posing a threat to the applicant appear, however, to have integrated to a large extent into the Iraqi security forces, and the great majority of militia attacks are carried out by Sunni groups against Shi’ites. Nevertheless, targeted attacks against the former international forces in Iraq and their subcontractors as well as individuals seen to be collaborating with these forces, especially the US troops, have been widespread and conducted also by Shi’ite groups (see, for instance, the UNHCR Guidelines, § 20 above). Consequently, individuals who worked directly with the international forces or for a company connected to those forces must, as a rule, be considered to be at greater risk in Iraq than the average population. 43.", "The applicant has stated – before the Swedish authorities as well as the Court – that, between June 2003 and late 2007, he consecutively worked for three different security companies in Baghdad. At least the last of the three – allegedly the biggest company of its kind in Iraq – had connections to the US military. Because of his work he received visits and threats from the Badr and al-Mahdi militias, who told him to stop his employment or else he would be killed. In November 2007, shortly before his departure for Sweden, his house was completely destroyed. In October 2008, his wife and child, who had remained in Baghdad but moved to the house of her parents, were assaulted at their new home.", "The applicant claims that the two militias carried out these attacks. In late 2008, a friend visiting his destroyed house in Baghdad found a threatening letter addressed to the applicant. 44. In support of his claims, the applicant has also submitted various documents, purporting to be of an official nature. They state that the applicant’s brother and neighbours had told the police that four men had gone into the applicant’s house in October 2008, thus almost a year after it had allegedly been completely destroyed.", "The applicant’s original claim and the information contained in the documents submitted by him are mutually exclusive. Despite the fact that the respondent Government pointed out this contradiction in their observations, the applicant has not given any explanation. In the Court’s view, this seriously weakens the applicant’s credibility, not only in regard to this particular incident but also with respect to the other parts of his story. In this connection, it must be emphasised that no evidence has been presented which shows that the applicant and his family have been threatened and attacked by the two militias or that the alleged incidents to which they were allegedly subjected were targeted at them because of the applicant’s work. 45.", "The Court has further regard to the fact that the applicant left Iraq in November 2007, almost six years ago, and that, consequently, he has not worked for any security company or other employer with a US affiliation during this period. Thus, the interest that certain groups or individuals may have had in the applicant personally must have waned considerably. 46. Finally, the Court notes that the applicant’s claim that he would risk ill-treatment also from his clan in Iraq and from the US military lacks substantiation. (d) Conclusion 47.", "Having regard to the above, the Court finds reasons to generally question the applicant’s credibility and considers that he has not been able to make it plausible that there is a connection between the incidents to which he and his family were allegedly exposed and his previous work for security companies connected to the former US troops in Iraq. In any event, many years have passed since said incidents and the applicant’s work for the companies, and there is, consequently, no sufficient evidence to conclude that he would face a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention upon return to Iraq. Consequently, his deportation to Iraq would not involve a violation of Article 2 or 3. II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.", "7 TO THE CONVENTION 48. The applicant further complained that the decisions of the Swedish authorities violated his rights under Article 8 of the Convention and Article 1 § 1 of Protocol No. 7 to the Convention. These provisions read as follows: Article 8 “1. Everyone has the right to respect for his ... family life ... .", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 § 1 of Protocol No. 7 “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.” Admissibility 49. Under Article 8 of the Convention, the applicant complained that his wife and son, who had moved to Syria, could not return to Iraq on account of the assault to which they had been subjected there. Since the applicant did not have a residence permit in Syria and could not be expected to be admitted there, his deportation from Sweden would split up the family.", "In this respect, the Court notes that the family was split up already in November 2007, when the applicant left Iraq, and that no decision taken by the Swedish authorities or the possible deportation of the applicant from Sweden has changed or would change that situation. Furthermore, having regard to the above conclusion that the applicant would not face a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention if he returns to Iraq, the Court cannot find that his wife and son would be unable to join him there. 50. Under Article 1 § 1 of Protocol No. 7, the applicant claimed that, as he had not been granted a second oral hearing before the Migration Court, he had not had the opportunity to submit all reasons speaking against his deportation.", "In regard to this complaint, the Court notes that, throughout the Swedish proceedings, the applicant was assisted by legal counsel and an interpreter, that the Migration Board held an interview with him and that the Migration Court held an oral hearing and, when it refused a further hearing, gave him the opportunity to finalise his submissions in writing. It is thus clear that the applicant had ample opportunity to present all the arguments that he found relevant to his case and that the proceedings fully complied with applicable requirements. 51. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. III.", "RULE 39 OF THE RULES OF COURT 52. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 53. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above paragraph 4) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. FOR THESE REASONS, THE COURT 1.", "Declares, unanimously, the complaint concerning Articles 2 and 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds, by five votes to two, that the implementation of the deportation order against the applicant would not give rise to a violation of Article 2 or 3 of the Convention; 3. Decides, unanimously, to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to deport the applicant until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 19 December 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 A. Power-Forde, joined by B. Zupančič, is annexed to this judgment.", "M.V.C.W. DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ My reason for being unable to accept the majority’s conclusion in this case is based upon the cumulative weight of a number of factors that come into focus when assessing the risk of treatment prohibited by Articles 2 and 3 of the Convention. Since January 2007 the applicant worked for the biggest security company in Iraq with connections to the US military. Civilians (formerly) employed or otherwise affiliated with the former multinational forces and/or US forces in Iraq, as well as their families, are at risk of being targeted by non-State actors. The UNHCR concludes that such individuals associated with or perceived to have been associated with supporting the US forces in Iraq are, depending on the circumstances, likely to be in need of international refugee protection on account of their (imputed) political opinion.", "[1] The applicant (whose general credibility was not questioned by the domestic authorities) has already been the subject of threats, including, threats upon his life, whilst living and working in Iraq. These threats, he claims, were related directly to his association with the US forces. His home was targeted, specifically, and destroyed and his wife and son were assaulted after his departure from Iraq. The applicant’s profile thus places him within a specific risk category of Iraqi asylum seekers. In addition to this risk factor, regard must be had to the serious decline in the general situation in Iraq today.", "The majority, whilst noting the existence of the indiscriminate and deadly violence, nevertheless, considers that ‘the overall situation has been slowly improving since the peak in violence in 2007’ (§ 39) and it sees no reason to depart from the position it took over four years ago in F.H. v Sweden (no. 32621/06). I cannot share this perspective. It has been reported that 2013 has, thus far, been the deadliest year in Iraq since 2008.", "[2] The Interior Ministry has put the death toll for the month of November alone at 1,121 and the number of people injured at 1,349. Thus, even if one were to accept that the general situation in Iraq is not to be regarded as being sufficiently serious as to cause by itself a violation of Article 3 of the Convention in the event of an individual’s forcible return thereto, the significant escalation in violence this year is, nevertheless, of sufficient seriousness as to weigh heavily in the balance when assessing, cumulatively, any risk of exposure to treatment that would violate Article 3 of the Convention. Having raised no serious issue as the applicant’s credibility,[3] it is, to my mind, somewhat questionable as to whether the reasons given by the migration authorities in rejecting the applicant’s claim for asylum are sufficiently robust as to meet the level of ‘rigorous’ assessment required under Articles 2 or 3 of the Convention (Chahal v United Kingdom judgment of 15 November 1996, Reports 1996-V, § 96). For example, the Migration Board found it ‘peculiar’ that the applicant only received threats in 2007 four years after he had started working with security companies and thereby cooperating with the American troops (§ 9). However, it is clear from the judgment (§ 8) that the applicant’s work with the company that actually had ‘connections to the US military’ had only commenced in 2007 (the year in which threats were received) and not in 2003.", "Another reason for the rejection of the applicant’s claim was his inability to identify his attackers or to state who the ‘visitors’ to his house were or why they had carried out the attacks (§§ 9, 12). How, precisely, are victims of targeted violence supposed to ‘identify’ those who terrorize them in arbitrary and unpredictable attacks? To be required to meet such an onerous test is to impose upon a person fleeing persecution an unreasonable and disproportionate burden. Further, while the Migration Court accepted that the applicant and his family had been assaulted in Iraq, it rejected his appeal, nevertheless, because it considered, inter alia, that the applicant failed to show that there was any connection between the various incidents and thus no remaining threat against him in the event of his return (§12). The applicant’s entire claim, however, is based upon the fact that there is, indeed, a connection between the various incidents in that they were all forms of retaliation against him for his imputed collaboration with the US military.", "That submission is plausible. That such attacks occur precisely because of perceived cooperation with foreign forces is confirmed by international observers. [4] The Respondent State points to a discrepancy between the applicant’s initial claim and the contents of certain documents adduced later in the proceedings (§ 44). The applicant cannot be blamed for what his brother said to the men who arrived at the applicant’s former home after he had fled to Sweden. The majority, to my mind, accords too much weight to this alleged discrepancy and too little weight to the overall credibility of the applicant - a credibility which those who interviewed him found no reason to question.", "[5] The general reliability of the applicant’s account when taken together with his specific risk profile and viewed in the light of the deteriorating security situation in Iraq, lead me to conclude that the applicant would face a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention should the Respondent State return him to Iraq at this time. [1] UNHCR (21 May 2012) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq, at page 14 and following. These Guidelines replaced the earlier 2009 Guidelines. They were prepared based on an analysis of up-to-date and relevant information from a wide variety of sources as of the 18th of March 2012. Various news reports confirm that the general security situation in Iraq has deteriorated since then.", "[2]See, for example, http://rt.com/news/Iraq and various other news agencies. [3] See § 28 of the Government’s Observations dated 19 March, 2012. [4]See UNHCR (21 May 2012) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq, at page 14 and following. [5] See §§ 28 and 32 of the Government’s Observations dated 19 March, 2012." ]
[ "THIRD SECTION CASE OF BELONOZHKO AND OTHERS v. RUSSIA (Applications nos. 48691/13 and 5 others - see appended list) JUDGMENT STRASBOURG 12 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Belonozhko 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 21 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 6.", "The applicants complained of the non-enforcement of domestic decisions given in their favour and of the lack of any effective remedy in domestic law. They relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 7. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II). 8.", "In the leading case of Gerasimov and Others v. Russia, no. 29920/05 and 10 others, 1 July 2014, the Court already found a violation in respect of issues similar to those in the present case. 9. The Court further notes that the decisions in the present applications ordered specific action to be taken (see the appended table for details of court orders). The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No.", "1. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicants’ favour. 11.", "These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 12. The applicants also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the non‑enforcement. The Court has already noted the existence of a new domestic remedy against the non-enforcement of domestic judgments imposing obligations of a pecuniary and non-pecuniary nature on the Russian authorities, introduced in the wake of the pilot judgment, which enables those concerned to seek compensation for damage sustained as a result of excessive delays in the enforcement of court judgments (see Kamneva and Others v. Russia (dec.), no.", "35555/05 and 6 others, 2 May 2017). Even though the remedy was – or still is – available to the applicants, the Court reiterates that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Gerasimov and Others, cited above, § 230). 13. However, in the light of the adoption of the new domestic remedy, the Court, as in its previous decisions, considers that it is not necessary to examine separately the admissibility and merits of the applicants’ complaint under Article 13 in the present cases (see, for a similar approach, Korotyayeva and Others v. Russia, nos. 13122/11 and 2 others, §§ 36-40, 27 June 2017; Kamneva and Others, cited above, and, mutatis mutandis, Tkhyegepso and Others v. Russia, no.", "44387/04 and 11 others, §§ 21-24, 25 October 2011). This ruling is without prejudice to the Court’s future assessment of the new remedy. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15.", "The applicants in the present cases did not submit claims for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. 16. At the same time, the Court notes from the Government’s submissions that the domestic judgments in the applicants’ favour have remained unenforced to date (see the appended table). The State’s obligation to enforce those judgments is not in dispute.", "The Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the judgment in the applicants’ favour (see Pridatchenko and Others v. Russia, nos. 2191/03 and 3 others, § 68, 21 June 2007, and Salikova v. Russia, no. 25270/06, § 83, 15 July 2010). FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the complaints concerning the non-enforcement of domestic decisions in the applicants’ favour admissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 4. Decides that it is not necessary to examine the admissibility and merits of the applicants’ complaint under Article 13 of the Convention; 5. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions.", "Done in English, and notified in writing on 12 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions and lack of any effective remedy in domestic law) No. Application no.Date of introduction Applicant name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings Domestic order 48691/13 25/06/2013 Aleksandr Vyacheslavovich Belonozhko 20/11/1961 Military Court of Kaliningrad Garrison, 13/01/2010 26/01/2010 Pending. More than 7 year(s) and 6 month(s) and 22 day(s). \"", "... [The head of the Federal State Enterprise \"Kaliningradskaya district KECh\"] to [perform certain repair works...] ...\" 52355/13 08/07/2013 Burulkan Nazirbekovna Turdaliyeva 30/01/1958 Lodeynoe Pole Town Court of Leningrad Region, 28/03/2012 03/05/2012 Pending. More than 5 year(s) and 3 month(s) and 14 day(s). \"... [the Village Administration] to provide [the applicant] with housing of not less than 84.8 square meters ...\" 39924/14 12/05/2014 Lyubov Vasilyevna Ivanova 29/06/1960 Kondopoga Town Court of the Republic of Karelia, 03/10/2012 25/01/2013 Pending. More than 4 year(s) and 6 month(s) and 23 day(s) \"... Administration of Kondopoga to carry out reparation works in the [applicant’s] block of flats, in particular of the roof, isolation, water supply, and sewerage system, by 01/07/2013...\" 40131/14 13/05/2014 Tatyana Sergeyevna Meleyeva 19/04/1976 Kondopoga Town court of the Republic of Karelia, 03/10/2012 25/01/2013 Pending. More than 4 year(s) and 6 month(s) and 23 day(s).", "\"... Administration of Kondopoga to carry out reparation works in the [applicant’s] block of flats, in particular of the roof, isolation, water supply, sewerage system, by 01/07/2013...\" 45207/14 03/06/2014 Faniya Akhmetovna Allakhverdiyeva 18/05/1961 Kizel Town Court of the Perm Region, 31/10/2012 04/12/2012 Pending. More than 4 year(s) and 8 month(s) and 13 day(s). “...The administration of the town of Kizel ... to provide [the applicant] with social housing in a priority order... \" 45292/14 03/06/2014 Household Zaytuna Akhmetovna Kovaleva 08/10/1958 Nikolay Nikolayevich Kovalev 28/01/1986 Kizel Town Court of the Perm Region, 01/11/2012 04/12/2012 Pending. More than 4 year(s) and 8 month(s) and 13 day(s). \"...The administration of the town of Kizel to provide [the applicants] with housing for one person in the town of Kizel ... under a social tenancy agreement and in a priority order ... \"" ]
[ "FIRST SECTION CASE OF TIMOSHIN v. RUSSIA (Application no. 41643/04) JUDGMENT STRASBOURG 7 February 2012 This judgment is final but it may be subject to editorial revision. In the case of Timoshin v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Mirjana Lazarova Trajkovska, President,Anatoly Kovler,Linos-Alexandre Sicilianos, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41643/04) 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 Alekseyevich Timoshin (“the applicant”), on 3 October 2004.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 30 April 2010 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. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1952 and lives in Ussuriysk, Primorye Region. 5.", "The applicant served in the military. 6. On 20 March 2001 the authorities opened criminal proceedings on account of a single incident of theft of the rare-earth metal palladium from certain military equipment. 7. A week later by a decision of the investigator in accordance with the procedural law at the time, the applicant was remanded on suspicion of participation in the above crime.", "8. The applicant was served with a bill of indictment for the first time on 5 April 2001, and on the following day he was released from detention with an undertaking not to leave the town. He was subsequently issued with several amended bills of indictment. 9. The Government submitted that the applicant and his counsel had studied the material of the case between 7 March and 25 September 2002.", "According to the applicant, such a long period was granted to him because the prosecutor in the case was out of town and the proceedings could not advance in his absence. 10. The criminal case against the applicant and his co-accused arrived at the Military Court of the Spassk-Dalniy Garrison on 8 October 2002. 11. Between 1 May and 13 June 2003 the applicant had been out of town.", "12. By a decision of the trial court of 9 September 2003 the applicant was again remanded. However, on an unspecified date he appears to have been released on bail. 13. On 4 June 2004 the trial court considered the case against the applicant and his co-defendant.", "By a judgment of the same date it convicted the applicant of aggravated theft and sentenced him to three years’ imprisonment, with a subsequent one-year bar on holding managerial office and forfeiture of his military rank and the State awards. 14. On 18 August 2004 the Military Court of the Far-East Circuit changed the legal qualification of the criminal act and sentenced the applicant to one year and six months’ imprisonment, a fine of 3,000 Russian roubles, and forfeiture of his military rank and the State awards. II. RELEVANT DOMESTIC LAW 15.", "Federal Law № 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that the length of the criminal proceedings against him had breached the “reasonable time” requirement as provided in Article 6 of the Convention, which reads, as far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 17.", "Referring to the introduction of the national remedy against excessive length of proceedings (see paragraph above), the Government argued that the applicant had failed to exhaust the available domestic remedies, in breach of Article 35 § 1 of the Convention. 18. The Court is aware of the existence of a new remedy introduced by federal laws nos. 68-ФЗ and 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no.", "33509/04, ECHR 2009 (extracts)) and accepts that the new remedy has been available to the applicant since 4 May 2010. At the same time, it notes that in the pilot judgment cited above it stated that it would be unfair to request applicants whose cases had already been pending for many years in the domestic system and who had come to seek relief at the Court, to bring their claims again before domestic tribunals (Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the present case (see, mutatis mutandis, Utyuzhnikova v. Russia, no. 25957/03, § 52, 7 October 2010).", "19. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 20. The Government disagreed that examination of the criminal case against the applicant had been excessively long. They firstly stated that the length of the pre-trial investigation, amounting to ten months, had been conditioned by a large number of investigative actions held in different locations, disruption of the investigation by the co-accused, in particular, through their attempts to influence the witnesses, length of the expert examinations and studying of the case by the defence. As to the length of the trial, the Government asserted that it had been warranted due to the location of the accused, their counsel, the witnesses and the material evidence in different towns within the same region. The court had questioned sixteen individuals whose examination had sometimes continued during two or three hearings and had waited for the results of a repeated expert examination, which had taken one month.", "Examination of the case had also been delayed due to the involvement of the counsel in different proceedings and their illness. Overall, thirteen court hearings had had to be rescheduled due to the applicant’s or his counsel’s failure to attend for various reasons. The Government added that the trial court had disciplined the defaulting parties by fining the counsel and replacing them with other lawyers and had attempted to expedite the proceedings by moving the hearings temporarily to another town for examination of the witnesses residing there and by re-detaining the applicant on remand. 21. The applicant countered by stating that the Government had not submitted any evidence of the applicant’s default in appearance or other disruption of the investigation and trial.", "The thirteen hearings that had not taken place had not contributed to any significant extent to the overall length. He added that at the stage of the pre-trial investigation the prosecutor had been out of town for six months, and the proceedings could not have advanced without him. 22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).", "23. The Court observes that the criminal proceedings against the applicant commenced on 27 March 2001, when he was arrested, and ended on 18 August 2004 with his final conviction. Their total length amounts approximately to three years and five months, during which period the authorities considered the case at two levels of jurisdiction. 24. The Court further observes that the parties chose not to submit a detailed description of the course of the events, nor did they submit evidence in support of their arguments, for example, copies of trial records.", "In these circumstances it will base its analysis on the parties’ statements and the available documents. 25. As regards the length of the pre-trial investigation, the Court notes that the parties disagree with each other as to the reason of the six-month delay and have not submitted anything that would allow it reaching an independent conclusion. While the total length of the investigation, amounting approximately to eighteen months, may appear somewhat excessive in a relatively simple case as the present one, it does not suffice alone to conclude that the authorities failed to conduct the proceedings in an expeditious manner. 26.", "As to the trial, the Court considers that the criminal case against the applicant was not complex, having concerned a single incident. On the other hand, it is cognisant of the fact that the participants in the proceedings, the material evidence and the trial court were located in different towns, and extra time was needed to summon or deliver them to the hearings. Furthermore, the applicant did not dispute the Government’s allegation that thirteen hearings had not taken place due to his or his counsel’s failure to attend. 27. Deciding on the strength of the evidence before it, the Court cannot establish any unjustifiable delay in the actions of the authorities.", "It also notes that the applicant was not in detention for the most part of the proceedings. In view of the foregoing, the Court cannot conclude that the overall length of the criminal proceedings in the present case amounts to a breach of the “reasonable time” requirement of Article 6 § 1 of the Convention. 28. There has accordingly been no violation of Article 6 § 1 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 29. The applicant also complained under Articles 5 § 1 and 6 of the Convention of unlawful arrest and detention, about the outcome of the proceedings and assessment of evidence by the courts. 30. 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 these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning length of the criminal proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachMirjana Lazarova Trajkovska Deputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF CONSTANTIN AND STOIAN v. ROMANIA (Applications nos. 23782/06 and 46629/06) JUDGMENT STRASBOURG 29 September 2009 FINAL 29/12/2009 This judgment may be subject to editorial revision. In the case of Constantin and Stoian v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Boštjan M. Zupančič,Egbert Myjer,Ineta Ziemele,Luis López Guerra,Ann Power, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 8 September 2009 Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 23782/06 and 46629/06) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Marius-Georgian Constantin and Mr Florin Stoian (“the applicants”), on 1 June 2006 and 9 November 2006 respectively.", "2. They were represented by Mr Niculae Constantin (the first applicant) and Mr Nicolae Trăistaru (the second applicant), lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 3. On 12 February 2008 the President of the Third Section decided to communicate the complaints concerning the allegations of lack of a fair trial (Article 6 §§ 1, 2 and 3 of the Convention) and the use of agents provocateurs to the Government.", "It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1979 and 1971 respectively. The first applicant lives in Bucharest, and the second in Afumaţi, Ilfov county.", "5. On 11 November 2003 the prosecutor started criminal proceedings against “George” and “Florin”, later identified as the applicants, based on information that they were trafficking in drugs. No other details were given in this decision of the prosecutor. A. The events of 18 November 2003 6.", "On 18 November 2003 the police division responsible for the fight against organised crime and drug trafficking (“the police”) sought authorisation from the prosecutor’s office to use an undercover agent and to obtain two grammes of heroin in order to gather evidence of the applicants’ alleged involvement in drug trafficking. It relied on Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”). The same day, the organised crime and drug trafficking section of the prosecutor’s office at the Bucharest Court of Appeal (“the prosecutor’s office”) authorised the operation for ten days and handed over the two grammes of heroin to the undercover agent (referred to in the domestic proceedings as “Alex 1”).", "7. The police set up the surveillance operation in the car park of McDonald’s Dristor (Bucharest), where the trafficking was thought to happen. Meanwhile G.M., a police collaborator (referred to in the domestic proceedings as “Alex 2”), set up a meeting with the first applicant, whom he had known previously. 8. At 13.45 Alex 1 arrived by car in the parking area together with Alex 2.", "The first applicant and another man were sitting in another car. Alex 2 got out and approached the applicant; he was to tell him that Alex 1, whom the applicant did not know, wanted to contact a person who could sell him two grammes of heroin. After a short talk, Alex 2 returned accompanied by the first applicant; the latter then left by car with Alex 1. The police followed the car until it stopped in front of a building on Zizin Street. The applicant made a phone call from Alex 1’s mobile phone.", "He left the car and entered the building, where he remained for 10-15 minutes. He then returned with the second applicant to Alex 1’s car. The first applicant took the right front seat, while the second applicant remained standing near the right front door of the car. Alex 1 handed money to the first applicant; the latter passed it to the second applicant who took it and walked away. 9.", "At that moment the police got out of their cars and shouted: “Police, stop!”. The second applicant started running, abandoning his jacket and the money. He managed to escape into one of the neighbouring buildings. 10. The first applicant was identified and searched.", "Sixteen tablets of methadone were found on him. He admitted that the tablets belonged to him and declared that he was a rehabilitated drug user and was authorised to take methadone. A small package containing 1.5 g of heroin was visible in the car near the gear lever. The police seized it. 11.", "The same day a search was conducted in the flat from where the second applicant had come, and where he lived with S.F., his partner. No drugs were found. 12. The first applicant was taken into custody for 24 hours, but released on 19 November 2003. While in custody, he was taken to hospital under suspicion that he had swallowed a package of heroin.", "The treatment did not confirm the suspicions. 13. The second applicant was apprehended on 18 May 2004 after being noticed on the street by Alex 1. He was taken into police custody. On 20 May 2004 the Bucharest County Court ordered his pre-trial detention for thirty days.", "His detention was subsequently extended by the court every thirty days until the end of the proceedings before the first-instance court. B. Applicants’ statements during the criminal investigations 14. On 18 November 2003 the first applicant made a statement to the police, in the presence of a lawyer. He admitted to having facilitated the drugs sale between Alex 1 and the second applicant. He stated that he had taken the money from Alex 1 and handed it to the second applicant, who had then put a small bag of heroin near the gear lever.", "He also stated that he had obtained the methadone tablets from a nurse in Badgasar Hospital in exchange for a bag of coffee. 15. The prosecution file contains a second statement in the same terms, which is not dated and is signed only by the first applicant. He claimed it had been taken the same day, on his arrest. 16.", "The next day, however, the first applicant, in the presence of his lawyer, changed his position and stated before the Bucharest County Court that he was not a drug dealer and had not taken drugs for two years. He also stated that G.M. had requested him to make the second applicant come out of his house, where the police would be present. He had only agreed to help because he understood that it was a covert police operation. He maintained that an exchange of money for a small bag had occurred between Alex 1 and the second applicant.", "He also confirmed that the sixteen tablets of methadone were for his own use and that he had obtained them without prescription. 17. When interviewed by the prosecutor on 5 and 7 July 2004 the first applicant took the same position as before the County Court. He explained that he had given the statement of 18 November 2003 thinking that he would be participating in the criminal proceedings only as a witness and not as an accused. 18.", "On 19 May 2004 the second applicant told the prosecutor that he had not handed anything to the first applicant, that he had not known what the small package found in the car contained and that he had only agreed to accompany the first applicant to the car because the latter had told the second applicant that he had money for the second applicant’s partner, S.F. He also declared that at that moment he had not known that S.F. was a drug dealer. On 1 March 2004 S.F. was also arrested for drug trafficking in the context of a separate investigation.", "19. The second applicant maintained his above statements on 20 May 2004 before the Bucharest County Court and on 7 July 2004 in an interview with the prosecutor. 20. On 12 July 2004 the prosecutor’s office indicted the applicants for possession and sale of dangerous drugs in violation of Law no. 143.", "It established, based on the evidence gathered, that the second applicant had given the small bag of heroin to the first applicant, who had handed it to Alex 1, and that in exchange Alex 1 had given him the money, which he had then handed to the second applicant. 21. The prosecutor noted that the first applicant had been found guilty of possession and consumption of drugs in 2001 and that the second applicant had no known criminal record. C. Proceedings before the Bucharest County Court 22. The applicants gave statements on 7 September 2004.", "The first applicant reiterated that he had only agreed to contact the second applicant because he had been informed of the covert police operation. The second applicant maintained his position and denied trafficking in drugs. 23. The undercover agent and the collaborator supported the prosecutor’s version of the facts and maintained that the first applicant had not been aware of the police operation. 24.", "Some of the witnesses who had been unfavourable to the applicants during the investigations changed their statements before the court and claimed that they had signed without reading statements drafted entirely by the police. 25. At the hearing on 20 May 2005, after several reminders left unanswered by the prosecutor’s office, the applicants’ lawyers no longer insisted on obtaining an answer concerning the fate of the bag of heroin released to Alex 1 for the covert operation. 26. On 25 May 2005 the Bucharest County Court gave judgment, acquitting the applicants.", "It considered that the elements in the file indicated that on 18 November 2003 the police had sought to provoke a drug sale and had failed. Consequently, the heroin received by Alex 1 from the prosecutor’s office had been placed in the car to prove the alleged commission of the criminal offence. The court also noted that the criminal proceedings had been started illegally on 11 November as at that date there had been no relevant information on the applicants’ alleged criminal behaviour, and the facts under investigation had only taken place on 18 November. It also noted that the exchange of money for drugs was not proved, and that the witnesses could not support the prosecution’s version. The court ordered the second applicant’s immediate release.", "D. Appeal proceedings 27. On 3 October 2005 the appeal proceedings started before the Bucharest Court of Appeal, on an application lodged by the prosecutor’s office. The Court of Appeal heard evidence from the prosecutor and the applicants’ lawyers. The applicants used their right to address the court before the end of the hearing (ultimul cuvânt al inculpatului). No other evidence was requested by the parties or heard by the court.", "28. On 10 October 2005 the Court of Appeal convicted and sentenced the first applicant to seven year’s imprisonment and the second applicant to six years’ imprisonment. It considered that the detailed description of the events made by the undercover agent and the collaborator should have been given more weight as they corroborated the police reports on the arrest in flagrante delicto and thus reflected the truth. The court decided that the first applicant had not been honest in his statements and that he had only claimed to have been aware of the covert police action because he knew from his own experience that collaborators were protected by law. It also concluded that the second applicant’s aim had been to protract the investigations.", "The court took the fact that the witnesses changed their position as proof of their dishonesty. The Court of Appeal set aside the County Court’s finding of incitement as follows: “The court considers, unlike the first-instance court, that Article 68 §§ 1 and 2 of the Code of Criminal Procedure is not applicable so long as the evidence does not show that Constantin Marius Georgian was threatened or coerced to commit the facts. Likewise it is not proved that he was persuaded by the police to commit a crime, ... he agreed to facilitate the drug sale, but no longer admitted to it before the court.” It considered the arguments based on the origin of the heroin found as follows: “... Constantin Marius Georgian himself stated when apprehended by the police and in subsequent statements that the drugs found in the car had been handed over by Stoian Florin, in exchange for 6,000,000 lei.” 29. The first applicant was also convicted of illegal possession of sixteen tablets of methadone. 30.", "The court deducted the second applicant’s preventive detention from “19 May 2004 to 25 May 2004”. It also confiscated, under Article 17 § 1 of Law no. 143/2000, the eight tablets of methadone and 1.48 g of heroin left after the laboratory tests from the first and the second applicant respectively. 31. On 11 May 2006 the High Court of Cassation and Justice upheld the conviction following an appeal on points of law lodged by the applicants.", "It also corrected the material error in the appeal decision concerning the second applicant’s preventive detention, and in an interlocutory judgment of 14 July 2006 noted that he had been detained from 19 May 2004 to 25 May 2005. E. Other proceedings 32. On 7 July 2004 and on 2 June and 16 August 2006 the applicants lodged criminal complaints against G.C., the prosecutors in charge of their investigation, the undercover agent and the witnesses alleging that they had given false testimony to the investigative authorities. In addition, the first applicant, in the appeal of 7 July 2004, complained that several items adduced by him as evidence had disappeared from the criminal file. On 11 October 2004 and 23 May and 13 June 2007 the prosecutor’s office at the High Court of Cassation and Justice decided not to prosecute G.C.", "and Alex 1. On 25 February 2008 a similar decision was taken in respect of the witnesses by the prosecutor’s office at the Bucharest District Court. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 33. Article 68 of the Code of Criminal Procedure reads as follows: Article 68 “1.", "It is forbidden to use violence, threats or other means of coercion, as well as inducements, in order to obtain evidence. 2. It is also forbidden to incite a person to commit or continue committing a criminal offence for the purpose of obtaining evidence.” 34. The relevant provisions of Law no. 143 read as follows: Article 1 “In the present Act the terms and expressions below shall have the following meaning: ... (k) Undercover agents: police officers specifically designated to carry out, with the prosecutor’s authorisation, investigations with a view to collecting data regarding the existence of the offence and the identification of the offender and precursory acts, under another identity than their real one.", "Such authorisation shall be conferred for a limited time only.” Article 21 “1. The prosecutor may authorise the use of undercover agents to determine the facts, identify the offender and obtain evidence where there is good reason to believe that a criminal offence as defined in the present Act has been perpetrated or is about to be committed.” Article 22 “1. Police officers from the special units who act as undercover agents, as well as persons acting with them, shall be allowed to procure drugs, base and compound chemical substances with the prosecutor’s prior authorisation, with a view to discovering criminal activities and identifying the persons involved in such activities. 2. The results of the actions of the police officers and persons acting with them referred to in paragraph 1 may constitute evidence.” 35.", "The Council of Europe’s texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008‑.... THE LAW I. JOINDER OF THE APPLICATIONS 36. In view of the similarity of the cases in terms of both fact and law, the Court finds it appropriate to join and examine them together. II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 37. The applicants complained that they had not received a fair trial in the criminal proceedings against them, alleging a violation of Article 6 §§ 1, 2 and 3 (a), (b) and (c) of the Convention, which reads as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2.", "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;” 38. In particular, the applicants complained that they had been incited to commit a criminal offence by the undercover police agent and his collaborator acting as agents provocateurs. 39.", "They considered that the prosecutor had not observed the procedural requirements in issuing the indictment; that the prosecution had been based on evidence gathered by pressuring witnesses into giving false testimony; that the first applicant had not been assisted by a lawyer when he had given his first statement and when the prosecutor had informed him of the accusations on 18 November 2003 and had not been properly summoned during the investigations; and that the second applicant had not been informed of the prosecution acts between 18 November 2003 and 19 May 2004. 40. They also complained about the way the Court of Appeal had changed the interpretation of the facts without hearing evidence and without clarifying where the money given by Alex 1 had come from or what had happened to the money and the two grammes of heroin released by the prosecutor to the undercover police officer. The second applicant also pointed out that the Court of Appeal had not ordered the examination of the bag of heroin for fingerprints in order to establish whether he had touched that bag. 41.", "In addition, the first applicant complained that he had been authorised to have the methadone as a rehabilitated drug user, and had thus been convicted of a crime he had not committed. 42. Lastly, the applicants complained that the way the Court of Appeal had interpreted the evidence had infringed their right to the presumption of innocence. A. Admissibility 43. 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. The parties’ submissions (a) The Government 44.", "The Government averred that a system allowing for covert police operations was common to other European countries and was recommended by the Council of Europe and the European Union in certain instances. 45. Regarding the facts of the present case, they denied that there had been police incitement, arguing that the information prior to the covert operation had revealed that the first applicant had been predisposed to commit a criminal offence (they referred to Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003‑VI). They pointed out that the second applicant had had no direct contact with the undercover agent.", "46. The Government admitted that the first applicant seemed to have been interviewed once by the prosecutor in the absence of his lawyer. However, they considered that the applicant’s defence rights had not been affected by that episode, in so far as he had not made any incriminating statements. Moreover, that remained an isolated episode, the applicant having been assisted by his lawyer throughout the other more complex interviews. They also pointed out that the second applicant had not been informed about the investigations because he had absconded from 18 November 2003 until May 2004.", "47. The Government rejected the allegations of unfairness in the proceedings before the Court of Appeal. In their view, the court had given a detailed interpretation of the evidence and explained its conclusions thoroughly. The decision had, in addition, been upheld by the High Court of Cassation and Justice. Moreover, unlike in the case of Teixeira de Castro v. Portugal (9 June 1998, Reports of Judgments and Decisions 1998‑IV), the courts in the case at hand had not based their decision solely on the undercover agents’ testimonies.", "The applicants had been heard by the first‑instance court (the Government referred, a contrario, to Ilişescu and Chiforec v. Romania, no. 77364/01, 1 December 2005) and had had the possibility of cross-examining the undercover agent (they referred, a contrario, to Dănilă v. Romania, no. 53897/00, 8 March 2007). In their view, it was enough for the first-instance court to examine the evidence directly. 48.", "The Government pointed out that the Court of Appeal had cleared up the doubts concerning the origin of the drug, as it had established that the package had been handed over by the second applicant in exchange for the money from Alex 1. Moreover, they averred that the applicants’ lawyers had not requested further evidence before the Court of Appeal. 49. The Government also submitted that both courts and prosecutors had examined the applicants’ allegations of police incitement and dismissed them in thoroughly reasoned decisions. 50.", "Lastly, the Government argued that the first applicant had not produced a valid prescription for the methadone. In any case the appeal courts had answered his plea. (b) The applicants 51. The first applicant reiterated that he had been informed from the very beginning of the covert operation and had been asked to help “catch” the second applicant in flagrante delicto. In his view Alex 1 had acted as an agent provocateur and used the two grammes of heroin to frame the applicants.", "He pointed out that the courts had been unable to establish what had happened to that heroin. Lastly, he argued that he had submitted a valid authorisation to possess methadone at the material time. 52. The second applicant did not present his views within the time‑limits set by the Court. 2.", "The Court’s assessment 53. The Court observes that in contesting the fairness of the proceedings, the applicants put forward two arguments. Firstly, they argued that they had only committed the offence because of the intervention of agents provocateurs, the first applicant claiming that he had been aware of the covert police operation and the second applicant that he had only agreed to accompany the first applicant to the car in order to receive his partner’s money. Secondly, they argued that in convicting them, the Court of Appeal had not carried out a thorough examination of the evidence. 54.", "The Court reiterates its recent case-law on Article 6 in which it elaborated on the concept of entrapment as distinct from the use of legitimate undercover techniques and reaffirmed the domestic courts’ obligation to carry out a careful examination of the material in the file where an accused invokes police incitement. In this context, the Court has also established that its function under Article 6 § 1 is not to determine whether certain items of evidence were obtained unlawfully, but rather to examine whether such “unlawfulness” resulted in the infringement of another right protected by the Convention; it has thus to review the quality of the domestic courts’ assessment of the alleged entrapment and to ensure that they adequately secured the accused’s rights of defence, in particular the right to adversarial proceedings and to equality of arms (see Ramanauskas, cited above, §§ 49-61; Malininas v. Lithuania, no. 10071/04, §§ 34-35, 1 July 2008; and Bykov v. Russia [GC], no. 4378/02, §§ 88-93, 10 March 2009). 55.", "To ascertain whether or not the undercover police confined themselves to “investigating criminal activity in an essentially passive manner” in the present case (see Ramanauskas, cited above, § 55), the Court has regard to the following considerations. Nothing in the applicants’ past suggested a predisposition to trafficking in drugs. The fact alone that one of them was a convicted drug user (see paragraph 21 above) cannot change the Court’s conclusion. The Court notes that the prosecutor did not give details, or refer to any objective evidence, concerning the applicants’ alleged unlawful behaviour in his decision to start criminal proceedings. Moreover, no heroin was found either in the first applicant’s possession or in the second applicant’s home (see paragraphs 10-12 above).", "56. The Court also notes that the parties gave different interpretations of the events that had occurred on 18 November 2003. According to the Government, the first applicant had agreed to broker the deal between the undercover agent, whose identity he did not know, and the second applicant, and the drugs found in the agent’s car had resulted from that deal. However, the first applicant, claiming police incitement, stated that he had been informed of the covert operation, while the second applicant claimed that he had been tricked into accepting the money; both applicants claimed that the two grammes of heroin found by the police were the same as those released by the prosecutor’s office for the covert operation. 57.", "In the light of this controversy, and notwithstanding its subsidiary role in assessing the evidence, the Court shall examine whether the applicants were able to raise effectively the issue of incitement (see Ramanauskas, §§ 60-61, and Malininas, § 34, both cited above). 58. The first-instance court concluded that the evidence taken from the applicants, the undercover agent and witnesses confirmed that there had been police incitement, and therefore acquitted the applicants on that ground. 59. However, based on the same evidence, the appeal court reversed the decision and convicted the applicants of trafficking in drugs.", "In doing so, the Court of Appeal did not interview the persons who had appeared before the prosecutor and the County Court. It decided to give precedence to the statements obtained by the prosecutor and considered that those given before the first-instance court had been false. 60. The Court reiterates that when a court of appeal is called upon to examine the case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, as it was in the present case, it cannot, as a matter of fair trial, properly determine the issues without a direct assessment of the evidence given in person by the applicant where he or she claims not to have committed the act alleged to constitute the criminal offence (see Dănilă v. Romania, no. 53897/00, § 35, 8 March 2007).", "The Court of Appeal failed, in the present case, to take any evidence, let alone interview directly the applicants on the merits of the accusations; the fact that the applicants did not specifically request further evidence to be taken by the Court of Appeal, as the Government pointed out, does not preclude that court from taking positive measures to that effect (see Dănilă, cited above, § 41). Likewise, the applicants’ last address to the court cannot be equated with their right to be heard by the court during the trial (see Constantinescu v. Romania, no. 28871/95, § 58, ECHR 2000‑VIII). 61. Moreover, notwithstanding the fact that it cannot hold in the abstract that evidence given by a witness in open court and on oath should always be relied on in preference to other statements made by the same witness in the course of criminal proceedings, not even when the two are in conflict (see Doorson v. the Netherlands, 26 March 1996, § 78, Reports 1996‑II), the Court is not convinced by the summary reasoning given by the Court of Appeal to justify the precedence given to the statements obtained by the prosecutor.", "It notes, in particular, that the doubts harboured by the Court of Appeal concerning the lack of honesty of the witnesses were not supported by the findings of the investigators in the matter. The fact that the applicants were heard by the first‑instance court and had the possibility of cross-examining witnesses at that stage of the proceedings does not alter the Court’s conviction on this point. 62. Lastly, unlike the Government, the Court is not convinced by the answer the authorities, in particular the courts, gave to the allegations of police incitement (see Ramanauskas, cited above, § 61). Whether or not the first applicant knew of the police action and whether or not the second applicant was tricked into accepting the money, the facts of the case indicate that if it had not been for the agent’s express request to buy drugs, none of the events of 18 November would have occurred.", "63. The Court considers that the Court of Appeal failed to properly examine the first applicant’s change of position, considering without further explanation that he had refused, before the courts, to admit to his involvement in the drug trafficking. 64. In conclusion, while being mindful of the importance and the difficulties of the task of the investigating agents, the Court considers, having regard to the foregoing, that the actions of the undercover police officer and his collaborator had the effect of inciting the applicants to commit the offence of which they were convicted, going beyond the mere passive investigation of existing criminal activity, and that the domestic courts did not investigate sufficiently the allegations of incitement. For these reasons the applicants’ trial was deprived of the fairness required by Article 6 of the Convention.", "There has accordingly been a violation of Article 6 § 1 of the Convention on this account. 65. Furthermore, the Court considers that the conclusion above makes examination of the remainder of the complaint redundant. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 66.", "The Court has examined the remainder of the complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the second applicant complained under Article 6 § 1 of the Convention that because of the domestic courts’ erroneous recording of his pre-trial detention, he would have to serve one additional year of detention. This error was, in fact, corrected by the High Court of Cassation and Justice on 14 July 2006 (see paragraph 31 above). Lastly, invoking in substance Article 1 of Protocol No.", "1 to the Convention, the second applicant complained that he could not comply with the confiscation order concerning the 1.48 g of heroin, since the heroin found on 18 November had already been surrendered to the investigators and he did not possess any other drugs. The Court notes, however, that the confiscation order referred to the same drugs that were seized by the police during the events on 18 November (see paragraph 30 above), and that no other measures were taken against the applicants that would affect their property rights for the purposes of Article 1. 67. 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 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 first applicant asked the Court to establish a reasonable amount in compensation for pecuniary and non-pecuniary damage. The second applicant claimed, in his initial application to the Court, 252,000 euros (EUR) in respect of pecuniary damage and EUR 300,000 for non-pecuniary damage; he did not answer the Court’s request, on 17 June 2008, to formulate his claims according to Rule 60 of the Rules of Court.", "After the time-limits set for submission expired and the applicant was warned that his application might be struck out, he informed the Court that he maintained his previous claims. 70. The Government argued that the first applicant’s claim for pecuniary damages should be dismissed as he had failed to adduce any evidence as to the damage actually incurred. In their view the second applicant’s claims should be dismissed as he had failed to present them in line with Article 60 of the Rules of Court. They referred to Niţescu v. Romania (no.", "26763/03, § 48, 21 April 2009). In addition, they argued that the claims for the alleged pecuniary damage were excessive and unjustified and that there was no causal link to any acts of the authorities. They also considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants. 71. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the first applicant; it therefore rejects this claim.", "On the other hand, it awards the first applicant EUR 10,000 in respect of non-pecuniary damage. 72. Lastly, the Court notes that the second applicant, who was represented by counsel, did not comply with the conditions for submitting his claims, nor did he present a reasonable justification for his failure to comply with the time-limits. It therefore rejects his claims entirely. B.", "Costs and expenses 73. The applicants made no claim under this head. C. Default interest 74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaint concerning Article 6 (fairness of the criminal proceedings and presumption of innocence) admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on the ground of police incitement and failure of the domestic authorities to investigate the matter; 4. Holds that there is no need to examine the remainder of the complaint under Article 6 of the Convention; 5. Holds (a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the respondent State’s national currency, at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]
[ "COURT (CHAMBER) CASE OF UNIÓN ALIMENTARIA SANDERS S.A. v. SPAIN (Application no. 11681/85) JUDGMENT STRASBOURG 07 July 1989 In the case of Unión Alimentaria Sanders SA[*], The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges: Mr R. Ryssdal, President, MrJ. Cremona, Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald, Mr J. De Meyer, Mr J.A.", "Carrillo Salcedo, and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar, Having deliberated in private on 22 April and 19 June 1989, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") and by the Government of the Kingdom of Spain (\"the Government\") on 19 December 1988 and 20 January 1989 respectively, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art.", "47) of the Convention. It originated in an application (no. 11681/85) against Spain lodged with the Commission under Article 25 (art. 25) by a Spanish private company, Unión Alimentaria Sanders SA, on 5 July 1985. The Commission’s request referred to Articles 44 and 48 (art.", "44, art. 48) and to the declaration whereby Spain recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para.", "1 (art. 6-1). 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant company stated that it wished to take part in the proceedings pending before the Court and designated the lawyer who would represent it (Rule 30).", "3. The Chamber to be constituted included ex officio Mr J.A. Carrillo Salcedo, the elected judge of Spanish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).", "On 26 January 1989, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald and Mr J. De Meyer (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4.", "Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, having on each occasion consulted - through the Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant company: (a) decided on 10 February 1989 that there was no need at that stage for memorials to be filed (Rule 37 para. 1); and (b) directed on 14 March that the oral proceedings should open on 21 April 1989 (Rule 38). 5. On various dates between 2 March and 21 April 1989, the Registrar received a number of documents that the President had instructed him to obtain from the Government, the Commission or the applicant company, as the case might be.", "6. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court: - for the Government Mr J.L. Fuertes Suárez, Adviser, Ministry of Justice, Agent, Mr J.M.", "Morenilla Rodríguez, Adviser, Ministry of Justice, Counsel; - for the Commission Mr J.-C. Soyer, Delegate; - for the applicant Mr F. Ramos Méndez, abogado, Counsel. The Court heard addresses by Mr Fuertes Suárez for the Government, by Mr Soyer for the Commission and by Mr Ramos Méndez for the applicant company, as well as their replies to its questions. 7. The applicant company filed its claims under Article 50 (art. 50) of the Convention on 11 May 1989, and the observations on them by the Agent of the Government reached the registry on 22 May.", "On 23 May, the Delegate of the Commission made it known that he did not intend to file any observations. AS TO THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 8. Unión Alimentaria Sanders is a limited company in the food industry and has its registered office in Madrid.", "9. In 1974, it concluded a contract whereby it would finance the rearing of pigs belonging to it on a farm owned by another company, Linconin SA. In return, Linconin SA was to pay the price of the animals and the administrative costs. Owing to its insolvency, however, it was unable to honour its commitments; and in the meantime it had sold the pigs. Criminal proceedings were brought against Linconin SA and its directors but were subsequently discontinued following a general amnesty.", "B. The proceedings in the Barcelona Court of First Instance 10. On 2 May 1979, Unión Alimentaria Sanders SA brought an action in the Barcelona Court of First Instance (juzgado de primera instancia) for payment of the sum it considered was owed to it by Linconin SA and one of its directors, Mrs P. Since it thought the company and Mrs P. to be insolvent, it also brought two actions based on the principle of subrogation against them and three other persons, for the enforcement of contracts for the purchase of land and a farm by the first two defendants and the registration of the purchase in the land register. 11. The case was assigned to the Barcelona Court of First Instance no.", "9, which summoned the defendants to appear before it. Only one of these, Mrs B., appeared, however; the others could not be found. Mrs B. raised preliminary objections and submitted observations on the merits. On 27 November 1980, the court requested the parties to produce their evidence, and this they did from 17 December 1980 to 26 March 1981. Once that was done, it asked them to make their submissions, since they were not seeking a hearing.", "The applicant company did so on 29 October, and Mrs B. on 12 November. 12. In an order (providencia) of 28 December 1981, the court declared the case ready for decision (declaró los autos conclusos para sentencia). By Article 678 of the Code of Civil Procedure, judgment had to be given within twelve days, or within fifteen days if the file contained more than a thousand items. 13.", "On 10 July 1983, Unión Alimentaria Sanders SA wrote to the court to complain of a breach of Article 24 para. 2 of the Constitution, which guarantees \"the right to a public trial without undue delay (sin dilaciones indebidas) and with all safeguards\". On 21 October 1983, the company applied to the Constitutional Court for a declaration that there had been undue delay in the proceedings in question, an order requiring the trial court to give judgment and a declaration that the applicant company was entitled to compensation for the damage ensuing from the delay. The Constitutional Court dismissed the appeal (recurso de amparo) on 23 January 1985 (see paragraphs 17-19 below). 14.", "On 17 December 1983, the Court of First Instance no. 9 found partly in favour of the applicant company. It ordered Linconin SA and Mrs P. jointly and severally to pay the plaintiff the sum of 1,852,343.67 pesetas with statutory interest, and two of the defendants who were sued on the principle of subrogation to perform the contract for the sale of certain land and have it entered in the land register. On the other hand, the court dismissed the applicant company’s claims against Mrs B. In one of the recitals of fact, it acknowledged the delay in giving judgment but gave no reason for it.", "C. The proceedings in the Barcelona Court of Appeal 15. On 23 December 1983, Unión Alimentaria Sanders SA appealed against the judgment. The file was sent to the Barcelona Court of Appeal (Audiencia Territorial) on 25 April 1984, and in May the case was allocated to the First Civil Chamber of that court. On 5 June, the applicant company stated that it was ready for the trial; on 10 July, the Court of Appeal held that the defendants had forfeited their right to submit written observations as they had not appeared. On 13 September 1984, after the file had been studied by the reporting judge, the court declared the case to be ready for trial, without however setting any date for the hearing.", "16. A third civil chamber had been established in the meantime, and the case was transferred to it on 27 September 1985, pursuant to a decision of 4 September. On 17 March 1986, it appointed a new reporting judge and set the case down for trial on 6 May. On 12 May 1986, the Third Civil Chamber partly allowed the applicant company’s appeal and ordered Mrs B. to repay Linconin SA a specified sum paid for the purchase of the land; it upheld the remainder of the judgment of the court below. The appeal court’s judgment was notified to the applicant company by the Court of First Instance on 13 September.", "D. The proceedings in the Constitutional Court 17. During the proceedings in the Court of Appeal, the Constitutional Court was considering the application brought by Unión Alimentaria Sanders SA on 21 October 1983 (see paragraph 13 above). It declared the application admissible on 30 November and subsequently received observations from Crown Counsel (ministerio fiscal), the applicant company and counsel representing the Government (Abogado del Estado). Crown Counsel recognised that there had been undue delay, which was not explained by the Court of First Instance, but considered that once the normal course of the trial had been resumed and judgment given, the constitutional appeal no longer had any purpose except to obtain compensation. Counsel for the Government submitted that the case had become devoid of purpose.", "18. In its judgment of 23 January 1985 dismissing the appeal, the Constitutional Court first rejected these submissions by Crown Counsel and counsel for the Government and then concluded as follows on the merits: \"... Having reviewed the criteria relating to the complexity of the case and to the conduct of the judicial authorities and the parties, the Court must examine the consequences of the trial for the rights and interests at stake. This is one of the factors to be considered, as has often been pointed out by the European Court of Human Rights (Buchholz judgment). In its claim for compensation, the appellant company has given no indication of any consequences of the delay other than the precautionary entry which, in order to cover itself against the outcome of the trial, it had made [in the land register] against security at the time of the civil proceedings, so as to provide for possible compensation of the defendants if they should succeed at trial. Nothing was said about the practical consequences of the length of the trial for the rights and interests of the plaintiff.", "The latter confined itself in its submissions to noting the aforementioned effect of the precautionary step provided for in section 42 of the Mortgages Act and ‘non-pecuniary damage’, about which it remained vague. It thus appears that the time factor was not of primary importance in the instant case. Seeing that only court costs and the amount of the security were involved, it does not seem that this case before the Barcelona court merited any priority. If other, more urgent cases were pending, nothing precluded giving them priority and provisionally postponing the decision which is the subject of the present appeal. Consideration must also be given to what is regarded as the norm in respect of a court’s level of activity and output in the light of the number of cases to be dealt with.", "This was the factor to which counsel for the Government referred when he set out the position not only of the court which had to deal with the case under appeal but also of the other Barcelona courts dealing with ordinary - and other - cases within their jurisdiction. He stressed the temporary backlog of cases and saw that as one of the reasons for the length of the trial in issue. This Court must consider that factor, just as the European Court of Human Rights has done, which has given judgment, under Article 6 para. 1 (art. 6-1) of the Convention, on delays found to have occurred in different types of trial.", "The Buchholz judgment may be cited as an example. The length of an ordinary trial of a case which is complex and much disputed but does not merit any priority must be assessed on the basis of all these factors and in the light of the total time taken up by the trial. Inasmuch as the right to a trial without undue delay is not the same thing as strict compliance with court deadlines and does not necessarily mean that there is no abnormal situation, the delays during the civil proceedings in issue are not sufficient to warrant the conclusion that there has been a breach of Article 24 para. 2 of the Constitution ...\" (Boletín de Jurisprudencia Constitucional no. 46, February 1985, p. 152).", "19. One of the judges, however, dissented: \"... In the absence of any justification duly advanced by the trial court, we must ascertain whether or not the dilatoriness of which it is accused amounts to ‘delay’ within the meaning of Article 24. Even accepting the relevance of the criteria adopted in the judgment of this Court, the signatory of this separate opinion does not approve the manner in which they have been applied. The action was brought on 2 May 1979 and judgment given on 17 December 1983.", "A total duration of more than four and a half years is in principle excessive if we take into account ... the ‘total time taken up by the trial’ and particularly if we remember that the trial court did not indicate to us any special feature of the case justifying such dilatoriness. In the absence of any detailed justification, it is likewise not possible ... to consider ‘what is regarded as the norm in respect of a court’s level of activity and output’. Since normality is what corresponds to the norm and not what departs from it, even if the norm is more often honoured in the breach than in the observance, the traditional slowness of the system of justice cannot be regarded as ‘normal’. Furthermore, if the length of trials were to continue to grow longer, if the failure to comply with the norms of ‘output of the system of justice’ were to become widespread and if such ‘abnormal’, but commonplace, circumstances always had to be taken as a basis for assessing whether or not the right to a trial without undue delay had been respected, the protection of this fundamental right would by that very fact be reduced to nought ...\" (ibid., p. 154). E. The application for enforcement of the Court of Appeal’s judgment 20.", "On 18 October 1986, Unión Alimentaria Sanders SA applied to the Barcelona Court of First Instance no. 9 for enforcement of the Court of Appeal’s judgment and seizure of the defendants’ assets, which it listed. That application is still pending. II. THE POSITION OF THE BARCELONA COURTS 21.", "In its report for 1982 the General Judicial Council noted that each of the Barcelona courts of first instance had had to deal with an average of 1,800 cases. The same courts continued to lack judges for periods that recurred more and more often, despite the use of substitutes for urgent matters. This was the case with Court of First Instance no. 9: the judge had to be replaced on several occasions in 1982/83 for health reasons. He retired on 27 July 1983 and his successor was not installed until 21 September 1983.", "Two months later, however, the new appointee left the post, which again remained vacant. Until 22 February 1984, when the new incumbent took up his duties, the judge of the Barcelona Court of First Instance no. 1, acting as a substitute, dealt with the cases assigned to Court no. 9, and he it was who gave the judgment in the instant case (see paragraph 14 above). 22.", "Similar difficulties prevailed in the Barcelona Court of Appeal, to the point that the Ombudsman (Defensor del Pueblo) devoted a chapter of his report for 1985 to them. He stressed the large number of complaints about the length of proceedings in the Court of Appeal’s civil chambers and mentioned the inquiry into them which had been instituted (Boletín oficial de las Cortes Generales, 15 September 1986, p. 125). Between 1981 and 1984 the volume of cases to be dealt with by the two chambers had increased by 62%. Two new judgeships were created in 1983; but as this measure proved inadequate, a new chamber was established in 1985 and cases pending before the other two chambers were transferred to it - 964 from the First Chamber and 586 from the Second Chamber. The parties had to be informed, new reporting judges appointed and a new timetable prepared in order to deal with the backlog of cases, priority being given to the most urgent.", "23. In June 1985, the Council (Junta de Gobierno) of the Barcelona Bar launched a campaign to secure an improvement in the system of justice in the city with a manifesto which by January 1986 had already been signed by a thousand lawyers. 24. More generally, in his reports for 1983 and 1984 the Ombudsman drew the attention of the Chamber of Deputies (Congreso de Diputados) to the frequency of complaints about the law’s delays and the difficulty of obtaining enforcement of judgments. In the following year he described the situation as alarming.", "In his view, the main reasons for it were the shortage of staff and the continual changing of judges. 25. The Spanish State indeed took several relevant steps at national level. An institutional Act of 10 January 1980, for example, established the General Judicial Council, and the Judicature Act of 1 July 1985 reorganised the system. Between the two, a royal decree of 3 July 1981 set up four new courts of first instance in Barcelona, which have been in operation since September 1981; and an Act of 21 May 1982 established new judicial districts there.", "Lastly, an Act of 28 December 1988 completely reorganised the administration of justice. Between 1989 and 1992 the number of judges is planned to rise from 2,000 to 3,570. In Barcelona 10 additional courts are to be set up by converting district courts (tribunales de distrito) into courts of first instance, which will increase the number of the latter to 44 by 1992; and the Barcelona Provincial Court should have 64 judges. PROCEEDINGS BEFORE THE COMMISSION 26. In its application of 5 July 1985 to the Commission (no.", "11681/85), Unión Alimentaria Sanders SA complained of the length of the civil proceedings it had instituted in the Barcelona Court of First Instance no. 9, arguing that it was contrary to Article 6 para. 1 (art. 6-1) of the Convention. 27.", "The Commission declared the application admissible on 11 December 1987. In its report of 13 October 1988 (Article 31) (art. 31), the Commission expressed the opinion by thirteen votes to one that there had been a violation of Article 6 para. 1 (art. 6-1).", "The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[*]. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 28.", "The applicant company complained of the length of time taken to hear the civil action it had brought in a Barcelona Court of First instance on 2 May 1979. It relied on Article 6 para. 1 (art. 6-1) of the Convention, which provides: \"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...\" In the Commission’s view, the case had not been heard within a \"reasonable time\". The Government disagreed.", "A. Period to be taken into consideration 29. The period to be considered began on 1 July 1981, when Spain’s declaration accepting the right of individual petition took effect. However, in order to determine the reasonableness of the period which elapsed after then, regard must be had to the stage which the proceedings had reached at that juncture (see, as the most recent authority, the Milasi judgment of 25 June 1987, Series A no. 119, p. 45, para.", "14). 30. As regards the end of the material period, the Court finds that two phases must be distinguished. The first of these lasted until 13 September 1986, when the Barcelona Court of Appeal’s judgment was notified to the parties; the second consisted of the enforcement proceedings. The latter proceedings, which depended entirely on the initiative of the applicant company, began on 18 October 1986 and have still not been concluded.", "The Court will concentrate on the first phase, which lasted five years, two months and thirteen days. B. Applicable criteria 31. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard, in particular, to its complexity and the conduct of the applicant and the competent authorities. 1. Complexity of the case 32.", "The Government submitted that the case was fairly complex. There were several defendants, against whom different claims were being made, and the claims based on the principle of subrogation raised delicate legal problems. In addition, the file amounted to some 1,400 pages. 33. Like the Commission, the Court considers on the contrary that the case did not present special difficulties with regard to the facts or the law.", "It would add that only one of the defendants appeared before the Court of First Instance and none of them before the Court of Appeal (see paragraphs 11 and 15 above) - which simplified the task of those courts. 2. Conduct of the applicant company 34. The Government pointed out that it was a principle of Spanish law that responsibility for the progress of proceedings rested with the parties. Not until 21 October 1983 did the applicant company lodge an appeal with the Constitutional Court complaining of the length of the proceedings at first instance, although the case had been declared ready for decision as far back as 28 December 1981 (see paragraphs 12-13 above).", "Furthermore, it never complained to that court about the appeal proceedings. It had thus, the Government argued, been instrumental in prolonging the proceedings as a whole. 35. The Court reiterates that such a principle does not absolve the courts from ensuring compliance with the requirements of Article 6 (art. 6) concerning reasonable time (see, inter alia, the Martins Moreira judgment of 26 October 1988, Series A no.", "143, p. 17, para. 46). Like the Commission, the Court considers that the person concerned is required only to show diligence in carrying out the procedural steps relating to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings. He is under no duty to take action which is not apt for that purpose (see the Guincho judgment of 10 July 1984, Series A no. 81, p. 15, para.", "34). In the instant case it appears from the evidence that the applicant company showed diligence and that on 10 July 1983 it complained to the relevant court (see paragraph 13 above). This was the only ordinary procedure available to it under Spanish legislation. The recurso de amparo of 21 October 1983 was brought mainly in order to obtain a finding that there had been a violation of the Constitution, and it was dismissed on 23 January 1985 (see paragraph 13 above). That being so, even if in this case it indirectly helped to expedite the proceedings, it cannot on that account be regarded as an ordinary procedure for achieving that end.", "As far as the appeal proceedings are concerned, it is understandable that Unión Alimentaria Sanders SA did not lodge a second constitutional appeal seeing that its first one had failed. 3. Conduct of the competent authorities 36. The Commission and the applicant company were critical in particular of two long periods during which the relevant judicial authorities remained inactive. The Court notes that after declaring on 28 December 1981 that the case was ready for decision, the Barcelona Court of First Instance no.", "9 waited until 17 December 1983 before giving judgment (see paragraphs 12 and 14 above). On appeal the First Chamber declared the case ready for hearing on 13 September 1984 but the hearing before the Third Chamber did not take place until 6 May 1986 (see paragraphs 15-16 above). These two periods of almost total inactivity amounted to more than three and a half years. Such delay can be justified only by very exceptional circumstances (see the Guincho judgment previously cited, Series A no. 81, p. 15, para.", "36). 37. The Government acknowledged that there had been a backlog at the relevant time, but they pointed out that the Barcelona courts had then had an unusually heavy workload owing to the increase in the number of cases. This increase had followed on Spain’s return to democracy and was due to the establishment of new judicial safeguard systems, an overhaul of legislation and a tendency to have greater recourse to the courts. Faced with this state of affairs, the relevant courts - including the Constitutional Court - had considered that the present case was not urgent and did not qualify for priority treatment.", "The Spanish State had, moreover, taken the necessary steps to remedy the situation. These measures had affected, among other places, Barcelona, where new courts and judicial districts had been created, together with an additional chamber in the Court of Appeal; furthermore, the Act of 28 December 1988 had completely reorganised the administration of justice at national level in order to make it better adapted to the needs of the modern world (see paragraphs 22 and 25 above). 38. The Court is aware that Spain had to overcome serious difficulties during the restoration of democracy. It duly appreciates the efforts made by the Spanish authorities to improve public access to the courts and to overhaul the country’s judicial system.", "It reiterates, however, that in ratifying the Convention, Spain undertook to organise its judicial system in such a way as to ensure that it satisfied the requirements of Article 6 para. 1 (art. 6-1), including that of trial within a \"reasonable time\" (see the Guincho judgment previously cited, Series A no. 81, p. 16, para. 38).", "39. The present case concerns the courts in Barcelona, in particular Court of First Instance no. 9 and the First Chamber of the Court of Appeal. Before he retired (on 27 July 1983), the judge of Court no. 9 had to be replaced several times for health reasons.", "His successor relinquished his post barely two months after 21 September 1983, when he had taken up his duties. The new incumbent took over on 22 February 1984; until then the judge of Court of First Instance no. 1 also had to deal with the cases before Court no. 9, including the case of Unión Alimentaria Sanders SA (see paragraph 21 above). This situation coincided with a marked increase in the number of cases.", "Matters were the same in the Barcelona Court of Appeal, whose case-load almost doubled within the space of five years. As the creation of two new judgeships in 1983 was not sufficient to absorb the backlog, it proved necessary to set up a new chamber in 1985, to which the applicant company’s case was transferred (see paragraph 22 above). 40. A temporary backlog of court business does not entail a Contracting State’s international liability if the State takes appropriate remedial action with the requisite promptness (see, among other authorities, the Guincho judgment previously cited, Series A no. 81, p. 17, para.", "40). In such circumstances it is legitimate as a temporary expedient to decide on a particular order in which cases will be dealt with, based on their urgency and importance. The urgency of a case, however, increases with time; consequently, if the critical situation persists, such expedients are shown to be insufficient and the State must take other, more effective action to comply with the requirements of Article 6 para. 1 (art. 6-1) (see, among other authorities, the Zimmermann and Steiner judgment of 13 July 1983, Series A no.", "66, pp. 12-13, para. 29). The fact that such backlog situations have become commonplace does not, in the Court’s view, justify excessive length of proceedings (see, mutatis mutandis, the Martins Moreira judgment previously cited, Series A no. 143, p. 19, para.", "54). 41. In the instant case, the two periods of delay noted by the Court - two years and more than one and a half years - are very substantial, and the courts concerned did not point to any special feature of the case which could have explained such dilatoriness (see paragraph 19 above). The increase in the Barcelona courts’ workload was foreseeable, not only because of the measures taken following the adoption of the 1978 Constitution to facilitate access to the courts but also because of a trend, long since observed, towards a high level of migration to Catalonia in general and Barcelona in particular. Lastly, the Ombudsman and the Barcelona Bar Council had already reported the seriousness of the problem (see paragraphs 22-24 above).", "This state of affairs continued for several years, thus becoming organisationally in-built. The measures taken in 1981 and 1982 in respect of the courts of first instance (see paragraph 25 above) and in 1983 and 1985 in respect of the Court of Appeal (see paragraph 22 above) proved, even at the time, insufficient and belated. They slightly reduced the length of the proceedings in the Court of Appeal but, as the Commission pointed out, had no effect on the specific situation in the Barcelona Court of First Instance no. 9. 42.", "In the light of all the circumstances of the case, the Court considers the length of the impugned proceedings excessive. The undeniable difficulties encountered in Spain could not deprive the applicant company of its right to have its case heard within a \"reasonable time\". There was therefore a breach of Article 6 para. 1 (art. 6-1).", "II. APPLICATION OF ARTICLE 50 (art. 50) 43. By Article 50 (art. 50), \"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Pecuniary damage 44. The applicant company claimed compensation for pecuniary damage allegedly consisting in (a) the depreciation of the amount involved in the litigation as a result of inflation (3,019,319 pesetas) and (b) the bank’s commission on the precautionary entry in the land register (63,510 pesetas - see paragraph 18 above). It left the matter to the Court’s discretion, however. The Government contested the former amount on the ground that the domestic courts could order payment of interest; and as to the latter amount, said that the period after June 1986 should not be taken into account. 45.", "The Court is of the opinion that Unión Alimentaria Sanders SA has suffered pecuniary damage, which is not however susceptible of precise quantification. Assessing such damage on an equitable basis, as required by Article 50 (art. 50), the Court awards the company 1,500,000 pesetas. B. Legal fees and expenses 46.", "In respect of the hearings before the Commission and the Court, the applicant company also claimed reimbursement of (a) lawyer’s fees (1 peseta); and (b) the cost of two return air tickets from Barcelona to Strasbourg (190,170 pesetas) and subsistence expenses in Strasbourg (30,000 pesetas). The Government agreed. 47. The Court considers that these amounts should be allowed, that is to say a total of 220,171 pesetas. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a breach of Article 6 para. 1 (art. 6-1); 2. Holds that the respondent State is to pay Unión Alimentaria Sanders SA 1,500,000 (one million five hundred thousand) pesetas in respect of pecuniary damage and 220,171 (two hundred and twenty thousand one hundred and seventy-one) pesetas in respect of costs and expenses; 3. Dismisses the remainder of the claim for just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 1989. Rolv RYSSDAL President For the Registrar Herbert PETZOLD Deputy Registrar [*] Note by the Registrar. The case is numbered 16/1988/160/216. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.", "[*] Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 157 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry." ]
[ "FOURTH SECTION CASE OF MATEESCU v. ROMANIA (Application no. 30462/15) JUDGMENT STRASBOURG 16 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Mateescu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President,Marko Bošnjak,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 25 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30462/15) 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, Ms Maria Mateescu (“the applicant”), on 15 June 2015.", "2. The applicant was represented by Mr I. Matei, 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 16 December 2015 notice of the application was given to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1943 and lives in Bucharest. 5. The facts of the case, as submitted by the parties, refer to the same context and domestic criminal proceedings as those described in the case Association “21 December 1989” and Others v. Romania (nos.", "33810/07 and 18817/08, §§ 12-41, 24 May 2011). 6. During the events which led to the fall of the communist regime, on the night of 21/22 December 1989 the applicant’s son was killed by gunfire in Bucharest. 7. In 1990 the military prosecutor’s office opened several investigations into the December 1989 armed crackdown on the anti-communism demonstrations.", "A main criminal investigation concerning the use of violence against civilians in Bucharest and other cities was registered with the highest prosecutor’s office – the military prosecutors section − under no. 97/P/1990 (current number 11/P/2014). In the main criminal investigation the applicant raised civil claims and asked that the perpetrators of the offence of homicide committed against her son be identified and punished. 8. At the same time, another investigation concerning the offences of complicity in seriously aggravated homicide and complicity in attempted seriously aggravated homicide, committed against a large number of persons, including the applicant’s son, culminated in the committal for trial of public officials, members of the ruling political party, and their subsequent conviction by a final decision of the Supreme Court of Justice of 20 April 1992.", "9. The relevant procedural steps taken in the main criminal investigation were described in the cases Association “21 December 1989” and Others (cited above, §§ 12-41) and Sidea and Others v. Romania ([Committee] no. 889/15, §§ 8-11, 5 June 2018). 10. On 14 October 2015 the military prosecutor’s office closed the main criminal investigation, finding that the applicant’s complaint regarding the offence of homicide committed against her son was statute-barred and that a complaint concerning instigation of homicide was a matter of res judicata following the Supreme Court of Justice’s decision of 20 April 1992 (see paragraph 8 above).", "11. The decision of 14 October 2015 was subsequently annulled by a Prosecutor General’s decision of 5 April 2016, confirmed by the High Court of Cassation and Justice on 13 June 2016. On 1 November 2016 the military prosecutor ordered the opening of a criminal investigation in rem for the offence of crimes against humanity in respect of the same factual circumstances. 12. According to the information submitted by the parties, the main criminal investigation is still ongoing (see Bănuțoiu and Ștefoglu v. Romania [Committee], nos.", "64752/13 and 54607/14, § 12, 3 July 2018). II. RELEVANT DOMESTIC LAW 13. The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are referred to in the cases Association “21 December 1989” and Others (cited above, §§ 95-100) and Mocanu and Others v. Romania [GC] (nos. 10865/09 and 2 others, §§ 193‑96, ECHR 2014 (extracts)).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 14. The applicant complained that the criminal investigation carried out by the authorities into the events of December 1989 could not be regarded as effective or capable of leading to the identification and punishment of the persons responsible for the death of her son. 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 ...” A. Admissibility 15. 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 16. The Government described the steps taken recently by the national authorities in order to complete the criminal investigation into the events of December 1989 and made reference to their previous arguments in the cases Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, 24 May 2011) and Alecu and Others v. Romania (nos. 56838/08 and 80 others, 27 January 2015). 17.", "The Court reiterates that an investigation must be effective in the sense that it is capable of leading to a determination of the circumstances of fact and to the identification and punishment of those responsible. This is not an obligation of result, but of means (see Kelly and Others v. the United Kingdom, no. 30054/96, § 96, 4 May 2001, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002‑IV). The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays.", "Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 191, ECHR 2009; Association “21 December 1989” and Others, cited above, § 134; and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 317‑325, ECHR 2014 (extracts)). 18. Turning to the instant case, the Court notes that the death of the applicant’s son is covered by the main criminal investigation which was opened shortly after the events of December 1989 and which is still ongoing under the supervision of the domestic military prosecutor’s office (see paragraph 12 above).", "19. Taking into account the period after 20 June 1994, when the Convention entered into force in respect of Romania and irrespective of the fact that the investigation was carried out by military prosecutors (see Elena Apostol and Others v. Romania, nos. 24093/14 and 16 others, § 34, 23 February 2016), the Court considers that the criminal investigation in the present case does not meet the standards deriving from Article 2 regarding an effective investigation. The Court has regard to its lack of promptness and of reasonable expedition, the non-involvement of the applicants in the proceedings, and the lack of information provided to the public about its progress (see Mocanu and Others, cited above, §§ 335-48). 20.", "The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 21. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings concerning the events of December 1989 and under Article 13 of the Convention about the absence of an effective remedy to enable her claims to be determined. 22.", "Having regard to the finding relating to Article 2 (see paragraph 20 above), the Court considers that it is not necessary to examine the admissibility and the merits of the complaints under Article 6 § 1 and Article 13 of the Convention (see, among other authorities, Association “21 December 1989” and Others, cited above, § 181, and Alecu and Others, cited above, § 45). 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 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 25. The Government considered the claim to be excessive. 26. The Court takes the view, on the one hand, that the applicant has failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim.", "On the other hand, the Court finds that the violation of Article 2 of the Convention, under its procedural limb, has caused the applicant substantial non‑pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 27. The applicant did not submit a claim for costs and expenses.", "The Court is therefore not called upon to make an award in this respect. C. Default interest 28. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 2 of the Convention admissible; 2.", "Holds that there has been a violation of Article 2 of the Convention under its procedural limb; 3. Holds that there is no need to examine the admissibility and the merits of the complaints under Article 6 § 1 and Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Andrea TamiettiGeorges RavaraniDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF KUDIĆ v. BOSNIA AND HERZEGOVINA (Application no. 28971/05) JUDGMENT STRASBOURG 9 December 2008 FINAL 09/03/2009 This judgment may be subject to editorial revision. In the case of Kudić v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 18 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28971/05) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two citizens of Bosnia and Herzegovina, Mr Enver Kudić and Ms Mesuda Kudić (“the applicants”), on 26 July 2005.", "2. The applicants were represented by Mr M. Spaho, a lawyer practising in Sarajevo. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 3. On 29 May 2007 the President of the Fourth Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1928 and 1933 respectively and live in Bihać. 5.", "Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the Privredna banka Sarajevo Glavna filijala Bihać. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). 6. Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest.", "7. By a decision of the Bihać Municipal Court of 3 December 1993, the Privredna banka Sarajevo Glavna filijala Bihać was ordered to pay the applicants 54,469.42 German marks (DEM), 19,257.25 Swiss francs, 81.12 French francs, 60,120.49 Austrian shillings, 185.61 Canadian dollars, 231.86 US dollars, 163.39 Dutch guilders and 22,217.60 Italian liras, default interest on the above amounts at the rate applicable to overnight deposits from private individuals from 1 January 1992 and legal costs in the amount of DEM 1,940. The judgment entered into force on 12 June 1994. 8. On 9 April 1997 the Bihać Municipal Court issued a writ of execution (rješenje o izvršenju).", "The execution proceedings were effectively stayed between 12 January 1998 and 12 September 2001. 9. Meanwhile, on 28 November 1997, the judgment debt became a public debt pursuant to the Settlement of Claims Against the Federation of Bosnia and Herzegovina Act 1997. 10. On 6 April 2005 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“the Human Rights Commission”) found a violation of Article 6 of the Convention and of Article 1 of Protocol No.", "1 to the Convention arising from a failure to enforce the judgment of 3 December 1993. It ordered the Federation of Bosnia and Herzegovina to ensure full enforcement of the judgment in issue within two months, to pay the equivalent of 255 euros in respect of non-pecuniary damage within three months and to pay default interest after the expiry of the above time-limits at the annual rate of 10%. 11. On 28 October 2005 the applicants received the compensation awarded by the Human Rights Commission. 12.", "The judgment of 3 December 1993 was fully enforced on 5 June 2007 (the applicants were paid the principal debt, default interest and legal costs in the amounts specified in the judgment). II. RELEVANT LAW AND PRACTICE 13. For relevant law and practice see the admissibility decision in Jeličić, cited above; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; the judgment in Jeličić v. Bosnia and Herzegovina, no.", "41183/02, ECHR 2006‑...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007. THE LAW 14. The applicants complained of the protracted non-enforcement of a final and enforceable judgment in their favour. They relied on Article 6 of the Convention and Article 1 of Protocol No.", "1 to the Convention. Article 6, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. ADMISSIBILITY 15.", "The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since the judgment in issue had been enforced and the Human Rights Commission had acknowledged the alleged breach and awarded compensation. 16. The applicants disagreed that the compensation awarded by the Human Rights Commission constituted appropriate and sufficient redress. 17. According to the Court’s settled case-law, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged the breach (at least in substance) and afforded redress for it (see the admissibility decision in Jeličić, cited above).", "It is further recalled that redress afforded by the national authorities must be appropriate and sufficient (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006). As the Court has already held in length-of-proceedings cases, one of the characteristics of sufficient redress which may remove an applicant’s victim status relates to the amount awarded as a result of using the domestic remedy (see Cocchiarella v. Italy [GC], no. 64886/01, § 93, ECHR 2006-..., or Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 202, ECHR 2006 - ...). Since enforcement proceedings are regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see, as a recent authority, Wasserman v. Russia (no. 2), no. 21071/05, § 51, 10 April 2008), the principles developed in the context of length-of-proceedings cases are also applicable in the situation where an applicant complains of the protracted non-enforcement of a final and enforceable judgment in his favour (as in the present case). 18.", "Turning to the instant case, the Court observes that at the time when the Human Rights Commission’s decision was given the enforcement proceedings had already been pending for more than two years and eight months after the date of ratification of the Convention by Bosnia and Herzegovina. The just satisfaction awarded by the Human Rights Commission is not in reasonable proportion with what the Court would have been likely to award under Article 41 of the Convention in respect of the same period (as illustrated in the judgment in Jeličić, cited above). It therefore cannot be regarded as adequate in the circumstances of the case (see, by analogy, the principles established in Cocchiarella, cited above, §§ 65-107, or Scordino, cited above, §§ 173-216). Furthermore, the enforcement proceedings continued for more than two years after the Human Rights Commission’s decision. The Government’s objection must thus be dismissed.", "19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 3 above), the Court will immediately consider the merits of the case.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 20. The Court notes that the present case is practically identical to Jeličić (cited above) and Pejaković and Others (cited above) in which the Court found a violation of Article 6 of the Convention as well as a violation of Article 1 of Protocol No. 1 to the Convention.", "Considering the length of the period of non-enforcement of the judgment in issue in the present case (almost five years after the date of ratification of the Convention by Bosnia and Herzegovina), and having examined all relevant circumstances, the Court does not see any reason to depart from its previous case-law. There has accordingly been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 5,000 euros (EUR) each in respect of non-pecuniary damage. 23. The Government considered the amount claimed to be excessive.", "24. The Court considers it clear that the applicants sustained some non-pecuniary loss arising from the violations of the Convention found in the present case, for which they should be compensated. Having regard to the amounts awarded in comparable cases (see Jeličić, cited above, and Pejaković and Others, cited above) and to the amount of compensation already awarded to the applicants (see paragraph 8 above) and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicants a total of EUR 1,300 plus any tax that may be chargeable under this head. B. Costs and expenses 25.", "The applicants did not claim costs and expenses. 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 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,300 (one thousand three hundred euros) in total, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into convertible marks at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 9 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "SECOND SECTION CASE OF FİLİZ UYAN v. TURKEY (Application no. 7496/03) JUDGMENT STRASBOURG 8 January 2009 FINAL 08/04/2009 This judgment may be subject to editorial revision. In the case of Filiz Uyan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 2 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7496/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Filiz Uyan (“the applicant”), on 3 February 2003.", "2. The applicant was represented by Mrs I.G. Kireçkaya, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 13 December 2005 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and at the time of the events was serving a prison sentence in the Buca Prison in İzmir.", "5. She had been convicted of being a member of a terrorist organisation and sentenced to twenty-two years’ imprisonment. 6. On 12 November 2001, following the prison doctor’s referral, the applicant was taken to İzmir-Yesilyurt Atatürk Training and Research Hospital, escorted by three male security officers (two gendarmes and a male prison guard) and one female prison guard, in order to undergo an ultrasound scan by a gynaecologist. 7.", "In the hospital the applicant was taken to a consultation room located on the ground floor. The bottom of the consulting room windows was only 50 cm above floor level and the windows were unprotected. The applicant’s handcuffs were not removed and the male security officers refused to leave the consultation room for security reasons. They stated that they would wait behind a folding screen. The applicant refused to be examined in such conditions.", "Accordingly, the gynaecologist issued a medical report stating that she had not been able to perform the requested ultrasound scan as the patient had not given her consent. 8. On 14 November 2001 the applicant’s representative applied to the İzmir Public Prosecutor’s Office, accusing the gendarmes and the male prison guard of misconduct, arbitrary treatment and insulting the applicant. 1. The proceedings against the gendarme officers 9.", "On 15 November 2001 the İzmir Public Prosecutor’s Office separated the investigation file in respect of the accused gendarme officers, noting that, pursuant to Law no. 4483 on the Prosecution of Civil Servants and Public Officials, permission to prosecute had to be sought from the District Governorship. 10. On 28 December 2001 the Buca District Governor decided not to authorise the prosecution of the gendarme officers, stating that the applicant’s allegations were unsubstantiated. 11.", "The applicant did not file an appeal and the decision became final on 30 January 2002. 2. The proceedings against the male prison guard 12. On 26 and 27 November 2001 respectively, the İzmir public prosecutor took statements from the male prison guard and the applicant as the complainant. 13.", "On 3 December 2001 the public prosecutor decided not to prosecute the prison guard. Referring to the doctor’s note dated 12 November 2001, in which it was stated that no examination had been performed as the applicant had not given her consent, the prosecutor decided that the applicant’s allegations were unsubstantiated. 14. On 29 July 2002 the Karşıyaka Assize Court dismissed the applicant’s appeal against that decision. 3.", "The proceedings against the doctor 15. In the meantime, on 23 January 2002, the applicant’s lawyer filed a complaint with the İzmir Medical Association (İzmir Tabip Odası) against the doctor who had not asked the male security officers to leave the room or remove the applicant’s handcuffs. 16. On 8 April 2002 the İzmir Medical Association found it unnecessary to initiate criminal proceedings against the doctor, holding that she had not treated the applicant disrespectfully. 17.", "The applicant objected and on 5 October 2002 the Turkish Medical Association (Türk Tabipleri Birliği) quashed that decision. 18. On 23 January 2003 the İzmir Medical Association examined the file once again and decided to issue the doctor with a warning for professional misconduct, namely for not taking the initiative to request the male security officers to leave the consultation room or remove the applicant’s handcuffs, as required by ethical rules. II. RELEVANT LAW AND PRACTICE 19.", "The Protocol for Prisons signed by the Ministries of Justice, Health and the Interior (6 January 2000) provides: Article 66 “...during the medical examination at the hospital of those who are remanded or convicted in connection with terror-related crimes, the gendarmerie will wait in the consultation room to secure the area, at a distance so as not to hear the conversation between the doctor and the patient. Where women prisoners are remanded or convicted in connection with terror-related crimes, if the consultation room has protection the gendarme officers will wait outside the consultation room. If the room does not have protection the gendarme officers will wait in the room at a distance so as not to hear the conversation between the doctor and the patient.” Article 72 “Remand and convicted prisoners who are transferred to health institutions from Closed Prisons and Detention Centres and who are to be examined or hospitalised in these health institutions will be accompanied by an adequate number of guards, appointed by the prison administration, and the remanded and convicted prisoners’ administrative formalities in the hospital will be carried out by these guards.” 20. The Regulation on the External Protection of Prisons and Transfer Procedures provides insofar as relevant as follows: Section 3 (Course of Action during Examinationand Treatment in Health Institutions) “...handcuffs are not removed unless they hinder the treatment/examination and as long as their removal is not requested by the doctor.” 21. The CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning health care services in prisons (see the CPT standards, document no.", "CPT/Inf/E (2002) 1- Rev. 2006, pages 31 and 34) provide as follows: “... All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers... If recourse is had to a civil hospital, the question of security arrangements will arise. In this respect, the CPT wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons. Other means of meeting security needs satisfactorily can and should be found; the creation of a custodial unit in such hospitals is one possible solution.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 22. The applicant complained that during her visit to the hospital for an ultrasound scan she had been subjected to inhuman and degrading treatment. She further maintained that she had not had an effective remedy for her complaint concerning that treatment, which, in her view, had also been discriminatory. She relied on Articles 3 and 13 of the Convention. The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 23.", "The Government contested these arguments. A. Admissibility 24. The Government argued in the first place that the application should be rejected for non-exhaustion of domestic remedies. They maintained that the applicant had failed to lodge an appeal against the Buca District Governor’s decision, dated 28 December 2001, not to prosecute the gendarme officers. They also maintained that the application must be dismissed for failure to comply with the six-month rule.", "Furthermore, they contended that the applicant could not be considered as a “victim” within the meaning of Article 34 of the Convention as no medical examination had been performed on her since she had not given her consent. 25. The Court observes that there were three separate sets of proceedings in the present case. The first set of proceedings concerned the two gendarme officers who had refused to leave the consultation room for security reasons. The Court notes that the applicant failed to file an appeal against the Buca District Governor’s decision dated 28 December 2001, which became final on 30 January 2001.", "Accordingly, this part of the application, concerning the prosecution of the gendarme officers, should be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. 26. As regards the Government’s second objection, concerning non-compliance with the six-month time-limit, the Court observes that the proceedings against the male prison guard ended on 29 January 2002 with the decision of the Karşıyaka Assize Court. The parties have not informed the Court of the notification date of that decision. Be that as it may, the applicant lodged her application with the Court on 3 February 2003, within six months following the decision of the İzmir Medical Council dated 23 January 2003.", "In the Court’s opinion, it was not unreasonable for the applicant to await the outcome of the proceedings against the doctor, before lodging her application with the Court. Accordingly, the Government’s objection under this head cannot be upheld. 27 As regards the Government’s objection concerning the applicant’s “victim” status, the Court reiterates that the word “victim”, in the context of Article 34, denotes the person directly affected by the act or omission which is in issue. In the present case, the applicant’s complaint concerns the distress she allegedly suffered as a result of the fact that she had been taken to hospital for a gynaecological examination whilst handcuffed and under the surveillance of three male security officers. In the Court’s opinion, whether or not the doctor conducted the medical examination has no effect on the applicant’s victim status.", "In sum, the Court considers that the applicant was a victim of the impugned act and it dismisses this part of the Government’s objection. 28. Finally, the Government contended that the presence of gendarmes in the doctor’s consultation room was required by law for security reasons because of the poor security arrangements in the hospital. They further stated that the applicant had been convicted of being a member of a terrorist organisation and strict security measures had to be taken to prevent the risk of her absconding. Lastly, the Government maintained that the application was unsubstantiated, repeating that the applicant had not been forced to undergo a medical examination.", "The complaint was therefore manifestly ill-founded. 29. However, the Court does not find this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 30. The Court recalls that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). It further 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 a lawful detention, and does not entail a use of force or public exposure exceeding what is reasonably considered necessary. In this regard it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage to himself / herself or others (see Mouisel v. France, no.", "67263/01, § 47, ECHR 2002‑IX; Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997‑VIII; Tarariyeva v. Russia, no. 4353/03, § 109, ECHR 2006‑..., and Henaf v. France, no. 65436/01, § 48, ECHR 2003‑XI). 31. Article 3 of the Convention also imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel, cited above, § 40).", "There may be no derogation from this obligation. 32. In the present case, the Court notes that the applicant was referred to the hospital by the prison doctor to undergo an ultrasound scan. Consequently, she was taken to the hospital, handcuffed and escorted by one female and three male security officers. The Court recognises the security risk presented by the fact that the applicant had been heavily sentenced for being a member of a terrorist organisation and that the doctor’s consultation room was on the ground floor of the hospital with no window bars.", "Nevertheless, the Court considers that the insistence on the use of handcuffs during an examination by a gynaecologist, and the presence of three male security officers in the examination room during consultation, even behind a folding screen, were disproportionate security measures, when there were other practical alternatives. For example, the officers could have secured the room by leaving the female prison guard there and placing one of the gendarmes outside the window of the consultation room. 33. However, the doctor and the gendarme officers had acted in compliance with the domestic legislation since, under the terms of the relevant protocol (see paragraph 19 above), the officers had been obliged to stay in the consultation room, keeping themselves at a sufficient distance behind the folding screen to avoid hearing the conversation between the doctor and the applicant. Furthermore, according to the domestic legislation, handcuffs were not to be removed if they did not hinder the medical examination and as long as their removal was not requested by the doctor.", "These were strict requirements for all prisoners convicted of terrorism-related crimes who had to undergo such examinations. In the Court’s view, these strict measures failed to allow a flexible and more practical approach to be taken, depending on the particular risk presented by such a prisoner and the type of medical examination to be performed. In particular, the Court finds that the Government have not demonstrated that the applicant presented such an acute security risk that measures of this nature were required for a gynaecological procedure. 34. The Court concludes that, even though no medical examination was performed, the above security conditions must have caused the applicant humiliation and distress, beyond that inevitably associated with the treatment of a prisoner, which was capable of undermining her personal dignity.", "35. There has therefore been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 36. Relying on Article 14 of the Convention, the applicant contended that she had been discriminated against as she was a female prisoner.", "37. However, having regard to all the materials in its possession, the Court finds nothing in the case file which might disclose any appearance of a violation of this provision. It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention. 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.” 39. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT 1. Declares by a majority the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds by 4 votes to 3 that there has been a violation of Article 3 of the Convention. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise Tulkens Deputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Zagrebelsky, Tsotsoria and Karakaş is annexed to this judgment. F.T.F.E.-P. JOINT DISSENTING OPINION OF JUDGES ZAGREBELSKY, TSOTSORIA AND KARAKAŞ To our regret, we are unable to agree with the majority that there has been a violation of Article 3 of the Convention in this case. As the majority rightly points out in paragraph 30, in order to fall within the scope of Article 3 of the Convention the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no.", "25). In our view, the treatment of which the applicant in the present case complained did not attain the minimum level of severity within the meaning of Article 3 of the Convention, for the following reasons. In the present case, the applicant, who had received a heavy prison sentence for being a member of a terrorist organisation, was taken to a civilian hospital to undergo an ultrasound scan. However, as her handcuffs were not removed and as the male security officers refused to leave the consultation room and waited behind a folding screen, the applicant did not give her consent for the scan and, in consequence, the doctor did not perform the examination. There is no dispute on this issue between the parties.", "In this connection, we note that under section 66 of the Protocol for Prisons, signed by the Turkish Ministries of Justice, Health and the Interior and dated 6 January 2000, where female detainees have been remanded in custody or convicted in connection with terrorism-related crimes and are required to seek medical assistance, gendarme officers are required to wait outside the consultation room if the latter has adequate security. If the room has no security, as in the present case, they are to stay in the consultation room, remaining at a sufficient distance behind a folding screen to avoid hearing the conversation between the doctor and patient. The CPT Standards, referred in the judgment, also state that all medical examinations of prisoners should be conducted out of the hearing and, unless the doctor concerned requests otherwise, out of the sight of prison officers. There is no explicit requirement for male security officers to leave the consultation room when female convicts are involved or for the removal of handcuffs during an examination. In our view, in paragraphs 32 and 33 of the judgment the majority has gone beyond its task by taking the place of the domestic authorities in suggesting which alternative measures could have been taken and in basing its decision on the fact that the Government failed to demonstrate that the applicant did not present an acute security risk.", "We consider that it is for the domestic authorities to assess the circumstances and to decide which security measures should have been imposed during the examination. It should be borne in mind that the applicant, a convicted terrorist, was being examined in a civilian hospital and, under section 3 of the Regulations on the External Protection of Prisons and Transfer Procedures, it was for the doctor to decide whether the use of handcuffs hindered the examination. In the present case, the applicant was taken to hospital for an ultrasound scan, and we do not see how the use of handcuffs could have hindered the examination. Furthermore, although the doctor subsequently received a warning from the Izmir Medical Association for not having taken the initiative to request the gendarme officers to leave the room, in our view the presence of the gendarmes was required by law in the circumstances of the present case, and the doctor had no authority to request otherwise. As regards the use of handcuffs, it was at the discretion of the doctor to request the removal of the handcuffs if she considered that they would hinder the examination of the applicant.", "However, given the security risk presented by the applicant and the hospital’s material conditions, we do not find that the doctor’s conduct was to have been unreasonable or disproportionate in the circumstances of the case. She merely complied with the domestic legislation in force at the time. Last but not least, it should not be forgotten that the applicant was not forced to undergo the ultrasound scan. When she did not give her consent, she was returned to the prison. Furthermore, there is no allegation that her health deteriorated in consequence.", "In this connection, we would refer to the judgment in Devrim Turan v. Turkey (no. 879/02, 2 March 2006).The applicant in that case, who was being held in police custody, was taken to hospital on the first and last days of custody for a gynaecological examination. However, since she refused to grant consent, the doctors did not perform any gynaecological examination. In paragraphs 20 and 21 of the Turan judgment, having regard to the fact that when the applicant refused to undergo a gynaecological examination, no force was used against her and the doctors had refrained from performing the said examination, the Court considered that the sole fact that the applicant was taken to hospital for a gynaecological examination on the first and last days of her custody did not attain the minimum level of severity within the meaning of Article 3 of the Convention. We do not believe that the facts of the present case are different from those in the Turan case.", "In the Turan case, the Court declared the applicant’s complaint inadmissible as no gynaecological examination had been performed. The situation is exactly the same in the present case. Having regard to the above considerations, we find that the treatment complained of by the applicant did not attain the minimum level of severity to amount to degrading treatment within the meaning of Article 3 of the Convention." ]
[ "FIRST SECTION CASE OF PUCHSTEIN v. AUSTRIA (Application no. 20089/06) JUDGMENT STRASBOURG 28 January 2010 FINAL 28/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Puchstein v. Austria, 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 André Wampach, Deputy Section Registrar, Having deliberated in private on 7 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20089/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Hans Herbert Puchstein (“the applicant”), on 5 May 2006. 2. The applicant was represented by Mr M. Lechner, a lawyer practising in Lochau. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3.", "The applicant alleged that the proceedings concerning his doctor’s fees had not been dealt with within a reasonable time and that the Regional Appeals Commission which dealt with his case had not been impartial and independent. 4. On 7 May 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant lives in St Oswald. 6. The applicant is a medical practitioner. He has an individual contract (Einzelvertrag) with the Lower Austrian Health Insurance Board (Niederösterreichische Gebietskrankenkasse).", "7. In two submissions to the Joint Arbitration Committee (Paritätische Schiedskommission) dated 7 September 1998 and 5 October 1998, the applicant demanded payment for laboratory tests carried out in the first and second quarters of 1998. The claims against the Lower Austrian Health Insurance Board amounted to 8,022.41 euros (EUR) and EUR 6,603.81, respectively. 8. The Lower Austrian Health Insurance Board claimed that the applicant had not participated in the test series for quality checking of laboratory parameters in 1997, and refused to pay for the tests.", "9. The applicant argued that he had participated in the quality checks in previous years with positive results and had – as previously – submitted the relevant samples for the period in question. 10. The Joint Arbitration Committee held an oral hearing and on 25 February 1999 it dismissed the applicant’s claim of 7 September 1998. 11.", "The applicant appealed against that decision to the Regional Appeals Commission (Landesberufungskommission). 12. On 17 May 1999 the applicant filed an application for transfer of jurisdiction (Devolutionsantrag), requesting a decision on his submission of 5 October 1998 from the Regional Appeals Commission, as the Joint Arbitration Committee had failed to decide within the statutory six-month time-limit. 13. The Regional Appeals Commission held a hearing and rejected both of the applicant’s claims.", "The decision was dated 24 August 1999, and was served on the applicant on 7 July 2000. 14. The applicant complained about this decision to the Constitutional Court (Verfassungsgerichtshof). On 27 November 2000 the Constitutional Court set aside the decision for violation of the right to a fair hearing before an independent and impartial tribunal established by law. It noted that one of the assessors of the Regional Appeals Commission had negotiated the clause on remuneration for laboratory tests on behalf of the Lower Austrian Medical Association (Ärztekammer für Niederösterreich), and thus the tribunal could not be regarded as impartial and/or independent.", "15. An amendment to the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) entered into force on 1 September 2002; it provided for changes in the composition of, inter alia, the Regional Appeals Commission. 16. The newly composed Regional Appeals Commission held a hearing on 15 May 2002, during which the applicant gave evidence. 17.", "On 24 March 2003 the applicant requested that the decision be served on him. As the Regional Appeals Commission did not react, the applicant repeated his demand on 18 July 2003. 18. The applicant was summoned to another hearing by a newly composed Regional Appeals Commission on 26 November 2003. During that hearing the entire subject was examined anew.", "Apparently the Regional Appeals Commission reached a decision on the same day. It dismissed the applicant’s claims, finding that he had failed to participate in the required tests and had therefore not complied with the conditions for payment of the laboratory tests. The Regional Appeals Commission did not find any reasons to doubt the lawfulness of the underlying provision of the Remuneration Regulation (Honorarordnung). The decision was served on the applicant’s counsel on 30 November 2004. 19.", "On 15 December 2004 the applicant complained to the Constitutional Court claiming that the Regional Appeals Commission lacked independence and impartiality. The former rejected the applicant’s complaint in a decision of 27 September 2005. It observed that the members of the Regional Appeals Commission were not bound by any instructions. They were independent and impartial unless special circumstances, for instance the fact that one member of the Regional Appeals Commission had been involved in the negotiation of the general agreements, gave rise to legitimate doubts about that member’s independence and impartiality. Such special circumstances had not been shown by the applicant in the present case.", "The mere fact that the assessors were members of Regional Medial Associations or Regional Health Insurance Boards which had provisions with the same content in their general agreements, did not suffice to cast doubt on the independence and impartiality of the Regional Appeals Commission. The decision was served on counsel on 29 November 2005. II. RELEVANT DOMESTIC LAW 20. The Social Insurance Act, which governs the composition of the Regional Appeals Commission, provides as follows: “341.", "(1) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the Association [of Social Insurance Boards] on behalf of the insurance boards. General agreements shall require the consent of the health insurance boards on behalf of which they are concluded. The Austrian Medical Association may conclude the general agreements on behalf of the medical associations concerned, with their consent ... (3) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice. Any provisions of the individual contract which are contrary to the provisions of a general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect. ... 344.", "(1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land in individual cases. ... (2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the local Medical Association and two by the Insurance Board, which is a party to the individual contract. ... (4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ... 345. (1) For each Land, a permanent Regional Appeals Commission shall be established.", "It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Justice Minister. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.” 21.", "The above version of section 345(1) of the Social Insurance Act entered into force on 1 September 2002. Before that date the Regional Medical Association and the Association of Social Insurance Boards each appointed two assessors to the Regional Appeals Commission and there had been no provision that members and employees of the parties to the general agreement would be excluded. 22. According to section 347(4) of the Social Insurance Act, the Regional Appeals Commission decides by a simple majority of votes; abstention from voting is not possible. 23.", "The assessors of the Regional Appeals Commission are appointed for a renewable period of five years. They are not subject to the hierarchical authority of the bodies which proposed their appointment (Article 20 of the Federal Constitutional Law). 24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 § 4 of the Federal Constitutional Law. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS 25. The applicant complained of a violation of Article 6 § 1 of the Convention as the proceedings had not been concluded within a reasonable time. Article 6 § 1, in so far as relevant to the present case, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal established by law.” 26. The Government contested that argument. A. Admissibility 27.", "The Government argued that the applicant had failed to exhaust domestic remedies, as he had not complained to the Constitutional Court about the length of the proceedings. According to the Government, there was constant case-law of the Constitutional Court finding violations of Article 6 § 1 on account of the length of proceedings. The case they referred to as an example was decided on 30 September 2004. The Government also pointed out that there had been previous decisions of the Constitutional Court in which it stated that the length of proceedings was excessive, albeit in a different area of law. 28.", "The applicant claimed that the first such decision by the Constitutional Court had been taken on 30 September 2005; thus at the time he had lodged his complaint with the Constitutional Court he was not obliged to complain about the length of the proceedings before that court. Furthermore, only in a decision of 30 November 2006 had the Constitutional Court set aside the provision whereby every complaint to the Constitutional Court had to contain an application to set aside the impugned decision. Thus before that decision, the applicant had had to apply to the Constitutional Court to set aside the decision complained of, otherwise the Constitutional Court would not have dealt with the case. 29. The Court has constantly held that domestic remedies have to be exhausted if they are effective, sufficient and accessible (see Mifsud v. France (dec.) [GC], no.", "57220/00, ECHR 2002‑VIII). In the present case, the Government argued that the applicant should have obtained a decision by the Constitutional Court to the effect that the proceedings had been unreasonably long. 30. While the Court held in Holzinger v. Austria (no. 1) (no.", "23459/94, § 22, ECHR 2001‑I) that the effectiveness of a remedy might depend on whether it had a significant effect on the length of the proceedings as a whole, the Court confirmed in its judgment in the case of Scordino v. Italy (no. 1) ([GC], no. 36813/97, § 187, ECHR 2006‑V) that remedies that only provided for compensation for a violation might also be considered effective. 31. The Court notes that a Constitutional Court decision to the effect that the proceedings had lasted for an unreasonably long time has neither preventive nor compensatory effect in respect of the length of the proceedings, but merely has declaratory effect.", "Such a remedy cannot be considered effective in the light of the principles developed by the Court and therefore the applicant was not bound to make use of that remedy. 32. In conclusion, the Court dismisses the Government’s objection of non-exhaustion. 33. The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.", "B. Merits 34. The applicant argued that the overall duration of the proceedings was not in line with the requirement that proceedings be concluded within a reasonable time. The different sets of proceedings had been brought on 7 September 1998 and 5 October 1998, and had lasted until 29 November 2005, thus between seven years and a little more than two months for the longest and seven years and a little more than one month for the shortest. The case came before three levels of jurisdiction.", "The applicant also maintained that no complex question of law or fact had had to be determined. 35. The Government argued that there had hardly been any lengthy periods of inactivity on the part of the authorities. The Regional Appeals Commission had had to deal with complex questions of law, such as compliance with the guarantees of Article 6 § 1 of the Convention. Furthermore a decisive decision of the European Commission of Human Rights, namely the decision in the Hortolomei case (see Hortolomei v. Austria (dec.), no.", "17291/90, 21 May 1997), had only been given at a rather late point in time during the proceedings in the present case. The Government further argued that, after the hearing on 15 May 2002, the proceedings had been prolonged for more than two years owing to the amendment to the law that was pending at the time. As a result, the Regional Appeals Commission had waited for the entry into force of that amendment and only then re-heard the case. 36. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference 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). 37. The case concerned questions of interpretation as regards the individual contract between the applicant and the Lower Austrian Health Insurance Board, the Remuneration Regulation being part of this contract. It cannot be said that this matter was particularly complex, in either the factual or the legal questions it raised. 38.", "The applicant’s conduct did not contribute to the length of the proceedings. 39. The Court notes that the applicant had to lodge a request for transfer of jurisdiction as the Joint Arbitration Commission failed to decide within the statutory time-limit. Moreover the Court notes that four years elapsed from the time the Constitutional Court set aside the Regional Appeals Commission’s decision on 27 November 2000 to the time the Regional Appeals Commission’s new decision was served on the applicant on 30 November 2004, although the applicant had requested to be served with the decision twice during that period. 40.", "Having regard to the delays attributable to the authorities and the overall length of the proceedings, the Court finds that the duration of the proceedings was excessive and failed to meet the “reasonable time” requirement. 41. There has thus been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE INDEPENDENCE AND IMPARTIALITY OF THE REGIONAL APPEALS COMMISSION 42.", "The applicant complained that the Regional Appeals Commission was not independent and impartial as provided in Article 6 of the Convention. 43. The Government contested that argument. A. Admissibility 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. Merits 45. The applicant argued that, even though there had been a change in the law in 2002 providing that only employees of Regional Health Insurance Boards that were not parties to the individual contract at issue could be members of the Regional Appeals Commission, there remained doubts as to their independence and impartiality.", "First of all, two of the assessors were employees of Regional Health Insurance Boards, albeit of Health Insurance Boards of other Austrian regions. The Regional Health Insurance Boards, however, were members of the Association of Insurance Boards, which proposed the assessors. 46. Furthermore, the applicant maintained that the contractual provisions that gave rise to the present dispute were identical throughout Austria. Therefore, those members who worked for one of the Regional Health Insurance Boards and sat in the Regional Appeals Commission had to rule on contractual provisions that were identical to provisions contained in their employers’ respective Remuneration Regulations.", "47. The Government argued that none of the assessors was subject to instructions. The mere participation of persons representing certain interests in the decision-making process of an authority was not a convincing reason to doubt the independence or impartiality of the Regional Appeals Commission. The fact that some of the assessors’ employers had similar provisions or provisions of the same type in their Remuneration Regulations could not cast doubt on the independence and impartiality of the Regional Appeals Commission. 48.", "The Government pointed out that assessors representing certain interests played an important role in the decision-making process as their expert knowledge and the experience gained in their profession could assist the Chairman of the Regional Appeals Commission, a professional judge, in assessing the specific question and thus contribute to adequate decision-making. There were two assessors proposed by the Association of Social Insurance Boards and two assessors proposed by the Austrian Medical Association, so that a balance between the specific viewpoints and interests was guaranteed. 49. The Court reiterates that in order to determine whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the following criteria: the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and whether the tribunal presents an appearance of independence. As regards the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement, a subjective and an objective one.", "Under the subjective aspect, the tribunal must be subjectively free of personal prejudice or bias. Under the objective aspect, a tribunal must be impartial from an objective viewpoint, thus it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Furthermore, it must be determined whether there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).", "50. The Court will consider the issues of independence and objective impartiality together as they are concepts that are closely linked (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I). 51. The Court has also held that lay assessors, who have special knowledge and experience in the relevant field, contribute to a court’s understanding of the issues before it and appear in principle to be highly qualified in the adjudication of disputes. Moreover, the inclusion of lay assessors is a common feature in many countries.", "In particular cases, however, the assessors’ independence and impartiality may be open to doubt (see AB Kurt Kellermann v. Sweden, no. 41579/98, § 60, 26 October 2004). 52. As to the objective impartiality of the assessors, it is decisive whether the balance of interest was upset and whether the lack of such a balance would consequently lead to non-fulfilment of the requirement of impartiality (see AB Kurt Kellermann, cited above, § 63). 53.", "The case of Thaler v. Austria (no. 58141/00, 3 May 2005) concerned similar facts before the amendment to section 345(1) of the Austrian Social Insurance Act came into force. In that case the Court found a violation of Article 6 § 1 in that the assessors of the Regional Appeals Commission were appointed by and had close links with the bodies which had concluded the general agreement challenged by the applicant, namely the Association of Social Insurance Boards and the Tyrol Regional Medical Association. In addition, in one set of proceedings the two assessors were senior officials of the applicant’s opponent in the proceedings, namely the Tyrol Health Insurance Board. 54.", "As to the present case, the Court notes that as a result of the changes in the domestic law, the assessors are no longer appointed by the Regional Medical Association and the Association of Social Insurance Boards, but by the Federal Minister of Justice on the proposal of the Austrian Medical Association and the Association of Social Insurance Boards. More importantly, employees of the Regional Health Insurance Board and the Regional Medical Association, which are parties to the general agreement on which the individual contract in dispute is based, cannot be assessors in the respective Regional Appeals Commission. 55. The Court notes that the applicant has not claimed that the above rules were not complied with in the last set of proceedings before the Regional Appeals Commission, which were conducted after the entry into force of the amendment to section 345(1) of the Social Insurance Act. Thus the assessors appointed upon the proposal of the Association of Social Insurance Boards were not members of the Lower Austrian Health Insurance Board, which was the applicant’s opponent in the proceedings.", "The Court agrees with the Constitutional Court’s view that the mere fact that other Regional Health Insurance Boards have provisions in their general agreements which are similar or identical to the provisions of the Remuneration Regulation which was in dispute in the present case, does not suffice to cast doubt on the independence and impartiality of the assessors. A finding to the contrary would be tantamount to excluding lay assessors from a large number of cases, thus depriving the Regional Appeals Commissions of their specific expertise on the subject matter. In sum, the Court has not found any circumstances in the present case which would have upset the balance inherent in the participation of lay assessors in the Regional Appeals Board. 56. There has accordingly been no violation of Article 6 § 1 of the Convention as regards the alleged lack of independence and impartiality of the Regional Appeals Commission.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 58. The applicant claimed 14,626.22 euros (EUR) in respect of pecuniary damage and EUR 2,000 for non-pecuniary damage in compensation for the excessive length of the proceedings.", "As regards the unfairness of the proceedings, the applicant stated that he would be satisfied with the Court’s finding of a violation. 59. The Government asserted that there was no causal link between the violations alleged and the pecuniary damage claimed and argued that as regards the claim in respect of non-pecuniary damage, the finding of a violation should constitute sufficient just satisfaction. 60. The Court does not discern any causal link between the violation found and the pecuniary damage claimed; it therefore rejects this claim.", "However, it awards the applicant EUR 2,000 in respect of the non-pecuniary damage suffered on account of the length of the proceedings. B. Costs and expenses 61. The applicant also claimed EUR 2,160 for the costs and expenses incurred before the domestic courts and EUR 4,800 for those incurred in the Convention proceedings. 62.", "The Government found the claim excessive. 63. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 64. The Court notes that the costs claimed in respect of the domestic proceedings were incurred for the applicant’s complaint to the Constitutional Court in 2004 in which he challenged the independence and impartiality of the Regional Appeals Commission.", "As the Court has not found a violation in this respect, the costs were not necessarily incurred. The Court therefore rejects the claim. As to the costs of the Convention proceedings, the Court considers it reasonable to award EUR 2,000. C. Default interest 65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings; 3. Holds that there has been no violation of Article 6 § 1 of the Convention as regards the independence and impartiality of the Regional Appeals Commission; 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 and EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos RozakisDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF SABAYEV v. RUSSIA (Application no. 11994/03) JUDGMENT STRASBOURG 8 April 2010 FINAL 08/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sabayev 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 18 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11994/03) 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 Maksim Anatolyevich Sabayev (“the applicant”), on 13 February 2003. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. In his first application form of 13 February 2003 the applicant complained about the outcome of the proceedings in his case and also alleged that he had been denied an opportunity to attend the supervisory review hearing in his case.", "By letter of 1 February 2005 the applicant also complained about the allegedly unlawful composition of the trial court in his criminal case. 4. On 26 September 2006 the President of the First Section decided to communicate the complaint concerning the applicant's alleged inability to take part in the supervisory review hearing in his case 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 1968 and lives in the town of Kolomna in the Moscow Region. 6. By judgment of 16 September 1999 the Elektrostal District Court of the Moscow Region examined the criminal case against the applicant and three other co-accused. The court convicted the applicant of aggravated blackmail and kidnapping and sentenced him to sixteen years' imprisonment.", "That sentence was upheld on appeal by the Moscow Regional Court on 25 January 2000. 7. Thereafter the applicant sought to initiate supervisory review of his case. 8. The applicant's supervisory review request to the Presidium of the Moscow Regional Court was partly successful.", "On 18 January 2001 the Presidium of the Moscow Regional Court, sitting as a supervisory review body, re-examined his case and partly changed the judgment of 16 September 1999. 9. On 26 February 2002 the applicant requested one of the Deputy Presidents of the Supreme Court to initiate supervisory review proceedings in his case before the Supreme Court, arguing that the lower courts wrongly assessed the evidence in the case and failed to apply the domestic law correctly. 10. Apparently in response to that request, on 11 June 2002 the Deputy President of the Supreme Court decided to initiate supervisory review proceedings in respect of the decisions of the lower courts in the applicant's case.", "The main reason for that decision was that while the lower courts had made a correct assessment of the facts of the case, they had erred in the legal characterisation of the offence committed by the applicant. 11. According to the Government, on 5 November 2002 notifications that the supervisory review hearing would take place on 19 November 2002 were sent to the applicant and the lawyer who had represented him at the trial. They were also invited to respond to the arguments of the Deputy President of the Supreme Court. 12.", "According to the applicant, he received a notification in the form of a telegram about the hearing of 19 November on 6 November 2002. From the documents submitted by the applicant it follows that he received a copy of the request of 11 June 2002 only on 27 November 2002, that is already after the supervisory review hearing in his case. 13. The applicant explained that once the main set of criminal proceedings was over, the lawyer in question had ceased to represent him. He submitted a copy of the lawyer's letter dated 29 January 2006, in which the lawyer had confirmed the absence of any agreement to act on the applicant's behalf in the supervisory review proceedings of 19 November 2002.", "The lawyer also confirmed the receipt of the notification of 5 November 2002, along with a copy of the request of 11 June 2002, but stated that he had been unable to react to these documents for lack of authority. 14. The parties agreed that the applicant asked to attend the supervisory review hearing in person. 15. The applicant submitted a copy of that request.", "The request was made on 10 November 2002 but was not received by the Supreme Court until 26 November 2002. 16. On 19 November 2002 the Supreme Court, in the presence of the prosecutor and one of the other co-defendants' lawyers, examined the arguments of the Deputy President's supervisory review appeal and amended the sentence by changing the charges of aggravated kidnapping to aggravated deprivation of liberty. The applicant's sentence was thus reduced from sixteen to thirteen years of imprisonment accordingly. 17.", "By letter of 4 December 2002 the Supreme Court notified the applicant of the outcome of the supervisory review proceedings. II. RELEVANT DOMESTIC LAW 18. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960 (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed. 19.", "Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment became effective and enforceable as of the day when the appeal instance pronounced its decision or, if the judgment had not been appealed against, when the time-limit for appeal expired. Article 379. Grounds for setting aside judgments which have become effective “The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not become effective on cassation appeals].” Article 342. Grounds for quashing or changing judgments [on cassation appeal] “The grounds for quashing or changing a judgment on appeal are as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) serious violation of procedural law; (iv) misapplication of [substantive] law; (v) inappropriate sentence considering the gravity of the offence and the convict's personality.” 20. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court.", "A party to criminal or civil proceedings could solicit the intervention of such officials for a review. 21. According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request.", "If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments. 22. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant's advantage. If it found a sentence or legal classification too lenient, it had to remit the case for fresh examination.", "23. Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing before a supervisory review body. The convicted person and his or her counsel could be summoned if the supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the convicted person's presence was not optional but mandatory if the grounds for initiating the supervisory review proceedings could worsen his personal situation.", "24. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, the convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to do so. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 25.", "The applicant complained under Article 6 of the Convention of the outcome of the criminal proceedings against him. Furthermore, he complained that the decision of the Supreme Court of 19 November 2002 had prevented him from exercising his defence rights properly and thus rendered the supervisory review proceedings unfair. The Court is of the view that this complaint falls to be examined under Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...” A. The parties' submissions 26. The Government disagreed.", "They submitted that no fresh charge had been brought against the applicant in the supervisory review procedure, in which the initial conviction for kidnapping had merely been re-characterised as the less serious offence of unlawful deprivation of liberty. 27. The Government further stated, with reference to Article 377 of the Code of Criminal Procedure as amended by Decision of the Constitutional Court of 14 February 2000, that the summoning of parties to a supervisory review hearing remained at the discretion of the relevant court provided the review procedure was not triggered by an application that would be to the applicant's detriment. The Government noted that the application for supervisory review, as well as the prosecutor's pleadings at the hearing, were not to the applicant's detriment. Given that the supervisory review procedure had benefited the applicant by sentencing him to a shorter term of imprisonment as a result of a new legal classification of his actions, the Government were of the view that the Supreme Court's failure to secure the attendance of the applicant and his counsel did not breach Article 6 of the Convention.", "28. The applicant contended that he did not have a fair trial in the proceedings before the supervisory review court. In his view, he had faced a new charge. He was informed of the proceedings and the contents of the Deputy President's request too late. The applicant stated that he had been deprived of an opportunity to be present and to submit arguments on that particular issue.", "In view of the above and having regard to the fact that the prosecution had participated in the hearing, the applicant considered that there had been a breach of Article 6 of the Convention. B. The Court's assessment 1. Admissibility 29. In so far as the applicant complained generally of the outcome of the criminal proceedings against him, the Court notes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings concerned.", "In this respect, the Court notes that the Supreme Court examined the request for supervisory review lodged by the Deputy President of the Supreme Court of Russia, re-opened the proceedings in the case and amended the lower courts' decisions. It re-characterised the applicant's offence from aggravated kidnapping to aggravated deprivation of liberty, reducing his sentence from sixteen to thirteen years of imprisonment. For the remainder, it upheld the previous court decision in his case. 30. The Court is of the view that, in so far as the Supreme Court re­opened the proceedings in the applicant's case and amended the decisions of the lower courts, the supervisory review proceedings concerned the determination of a criminal charge against the applicant.", "Accordingly, it finds that Article 6 § 1 of the Convention under its criminal head applies to those proceedings (see, among other authorities, Vanyan v. Russia, no. 53203/99, §§ 56-58, 15 December 2005). 31. The Court observes 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. 2. Merits (a) General principles 32. The Court reiterates that it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present and participate effectively in the first-instance hearing (see Colozza v. Italy, 12 February 1985, §§ 27 and 29, Series A no. 89).", "33. The personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing, even where the appellate court has full jurisdiction to review the case on questions of both fact and law. Regard must be had in assessing this question to, among other things, 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 Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998‑II). 34. It is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Lala v. the Netherlands, 22 September 1994, § 33, Series A no.", "297‑A). 35. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The latter means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66 and 67, Series A no. 211).", "(b) Application of the above principles to the instant case 36. The Court observes that the supervisory review proceedings under the Code of Criminal Procedure of 1960 were different from “ordinary” appeal proceedings in that, among other things, the power to initiate them was vested with certain senior judicial and prosecution officers, and not with the parties. 37. The fact remains, however, that the supervisory review court was not bound by the scope of the request for supervisory review but had the power to carry out a full-scale judicial review of the decisions in the case by quashing or amending them, remitting the case to lower courts or an investigator, or terminating the criminal proceedings partly or altogether (see paragraph 21). The Supreme Court did exercise its power by amending the conviction and the applicant's sentence, thereby determining a criminal charge against him (see paragraph 16).", "38. Having regard to the above, the Court considers that in order to satisfy the principle of fairness enshrined in Article 6 of the Convention the Supreme Court should have notified the applicant or his defence lawyer of the contents of the prosecution's supervisory review request and the date and place of the hearing. Since the prosecution was later present at the supervisory review hearing of 19 November 2002 and made submissions, the principle of adversarial proceedings also required that the defence be present at that hearing in order to be able to contest and comment on the arguments advanced by the prosecution. In such circumstances, the Court rejects as irrelevant the Government's reference to the fact that the absence of the applicant and his counsel from the hearing was not unlawful under domestic law. 39.", "On the facts, the Court notes that the applicant was denied a proper opportunity to familiarise himself with the contents of the Deputy President's supervisory review request (see paragraphs 11-15). This made prior notice of the date of the supervisory review hearing (see paragraph 12) meaningless in practical terms, as the applicant was unable to present his arguments to the Supreme Court not only in person or through his defence counsel (see paragraphs 14 and 15), but also in writing. The Court cannot agree with the Government's reference to the notification and service of the relevant supervisory review request on the applicant's former counsel. The documents submitted by the applicant (see paragraph 13) clearly demonstrated that at the relevant time he was not represented by the lawyer in question or indeed by any other lawyer, and in the absence of a clear indication to the contrary the Supreme Court should have clarified this issue with the applicant himself. 40.", "Overall, the Court finds the above considerations sufficient to conclude that the supervisory review proceedings before the Supreme Court did not comply with the requirements of fairness. 41. There has therefore been a breach of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42.", "Lastly, as to the applicant's complaint about the trial court's allegedly unlawful composition, the Court notes that the grievance was brought out of time, as the last decision in the applicant's criminal case was taken on 19 November 2002, and the applicant complained about it in his letter of 1 February 2005. 43. It follows that this part of the application should be rejected pursuant to Article 35 §§ 1 and 4 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 applicant considered that the outcome of the criminal proceedings in his case was erroneous and unjust and asked for 100,000 United States dollars to compensate for the alleged damage. 46. The Government submitted that the claims were unsubstantiated and generally excessive.", "47. The Court observes, as stated above, that the Supreme Court amended the applicant's conviction in his absence and failed to notify him of the hearing. The Court considers that the applicant indisputably sustained non‑pecuniary damage, which cannot be compensated solely by a finding of a violation. Deciding on an equitable basis, it awards him 3,000 euros for non-pecuniary damage, plus any tax that may be chargeable on this amount. B.", "Costs and expenses 48. The applicant made no claim in respect of costs and expenses. The Court considers that there is no call to make an award under this head. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the fairness of the supervisory review proceedings before the Supreme Court admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIRST SECTION CASE OF ĆOSIĆ v. CROATIA (Application no. 28261/06) JUDGMENT STRASBOURG 15 January 2009 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Ćosić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,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. 28261/06) 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, Mrs Katarina Ćosić (“the applicant”), on 31 May 2006.", "2. The applicant was represented by Mrs S. Pavić, a lawyer practising in Požega. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. On 16 October 2007 the Court decided to communicate the complaint concerning the applicant’s right to respect for her home 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 1943 and lives in Požega. 1.", "Background to the case 5. The applicant has served as a teacher in various elementary schools in Croatia. In 1966 she began her service in an elementary school in Čaglin. In 1970 she gave birth to a son who remained living with her until 2004. As a single mother she was granted a specially protected tenancy (stanarsko pravo) of a flat in Čaglin.", "In 1984 the applicant was transferred to an elementary school in Požega, a town in the same region. The school provided her with a flat, which it had temporarily leased from its then owner, the Yugoslav People’s Army (YPA). 6. The lease expired in 1990. In 1991 the State took over all property of the YPA, thereby becoming the owner of the flat.", "The school then asked on several occasions for the lease to be extended but these requests were ignored by the competent authorities. However, since no request for her eviction was made and no other flat was provided for her by her employer, the applicant remained living in the flat and continued paying a monthly rent to the State. 2. Proceedings for the applicant’s eviction 7. On 7 January 1999 the State brought a civil action against the school and the applicant in the Požega Municipal Court (Općinski sud u Požegi), seeking the applicant’s eviction.", "The State argued that since the applicant’s lease had expired she had no further legal entitlement to occupy the flat. 8. On 30 October 2002 the court granted the State’s claim and ordered the applicant to vacate the flat within fifteen days even though, as it noted, the applicant had no other place to stay. The court did so because it was satisfied that the State owned the flat and the applicant had no legal entitlement to occupy it. The judgment concluded as follows: “The evidence presented in the proceedings lead this court to finding the plaintiff’s claim to be well-founded.", "The Government’s Decree of 2 October 1991 resulted in all possessions of the former YPA [Yugoslav Peoples Army] coming into the ownership of the Republic of Croatia ... Before the above Decree had been enacted, a contract in relation to the lease of the flat in question was concluded ... between the YPA ... and the school ... The contract was concluded to last for a limited period of time - until 31 December 1990 when the school was obliged to return the flat ... The contract was concluded pursuant to section 36 of the then valid Act on Financing of the YPA ... That Act allowed the YPA to lease its property ... On the basis of the contract [between the YPA and the school], the school ... entered into further contracts with the second respondent Katarina Ćosić allowing her to temporarily occupy the flat and obliging her to pay rent as well as all other expenses connected with the use of the flat, while maintaining the second respondent’s obligation to return the flat to the YPA after the expiry of the contract. Neither the [initial] contract nor the additional contracts between the school and the second respondent are a basis for acquiring a specially protected tenancy of the flat in question. ...", "Thus, irrespective of the time [the second respondent] has occupied the flat and irrespective of the fact that the respondents continued to be in possession of the flat even after all contracts [concerning the flat] had expired, there is no legal basis for the second respondent to have acquired any rights on the flat in question ... Although this court is aware of the respondent’s unenviable position, it has to adopt its decisions exclusively on the basis of the laws and therefore, relying on the facts of the case, it has decided as in the operative part of this judgment.” 9. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) on 13 March 2000 and by the Constitutional Court (Ustavni sud Republike Hrvatske) on 9 February 2006. Both these courts endorsed the reasoning of the first-instance court that the applicant had no legal entitlement to occupy the flat. II.", "RELEVANT DOMESTIC LAW 10. Section 161, paragraph 1 of the Act on Ownership and other Rights in Rem (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows: “The owner has the right to seek repossession of his or her property from the person in whose possession it is.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 11. The applicant complained that the national courts’ judgments ordering her eviction violated her right to respect for her home, contrary to 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.” 12. The Government contested that argument. A. Admissibility 13. The Court finds that this complaint 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. B. Merits 1. Submissions by the parties 14.", "The applicant argued that the domestic authorities had violated her right to respect for her home by ordering her eviction from the flat where she had been living at that time for more than eighteen years. She maintained that she had been given the right to occupy the flat in question when she, as an elementary school teacher, had been transferred to work in Požega from Čaglin, where she had had a specially protected tenancy of a publicly owned flat. The applicant argued that the domestic courts had not taken all those circumstances into account when ordering her eviction, but had reached that decision only on the ground that she no longer had a right to occupy the flat. 15. The Government argued that there had been no interference with the applicant’s right to respect for her home since she was still living in the flat and although her eviction had been ordered by a court’s judgment, proceedings for the enforcement of that judgment had not been instituted.", "16. Furthermore, the Government contended that were the Court to find that there had been an interference, it was based on the laws regulating ownership. The decision ordering the applicant’s eviction also pursued a legitimate aim, namely the right of the State to claim possession of its property. 17. As to the proportionality of the interference, the Government claimed that they enjoyed a wide margin of appreciation and that the applicant was no longer legally entitled to occupy the flat.", "Furthermore, she had not asked that the flat be leased to her. 2. The Court’s assessment 18. The Court considers that the obligation on the applicant to vacate the flat amounted to an interference with her right to respect for her home, notwithstanding the fact that the judgment ordering the applicant’s eviction has not yet been executed (see, mutatis mutandis, Stanková v. Slovakia, no. 7205/02, § 7, 9 October 2007).", "19. The possession order in question was issued by the national courts under Croatian laws regulating ownership which allow an owner to seek repossession of his or her property when the possessor has no legal grounds for the possession. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), is thus satisfied that the national courts’ decisions ordering the applicant’s eviction were in accordance with domestic law.", "The Court further considers that the interference in question pursued the legitimate aim of protecting the rights of the State as the owner of the flat. 20. The central question in this case is, therefore, whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”. It must be recalled that this requirement under paragraph 2 of Article 8 raises a question of procedure as well as one of substance. The Court set out the relevant principles in assessing the necessity of an interference with the right to “home” in the case of Connors v. the United Kingdom, (no.", "66746/01, §§ 81–84, 27 May 2004) which concerned summary possession proceedings. The relevant passage reads as follows: “81. An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention ... 82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions.", "This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights ... . On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that ‘[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation’ ... . The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation ... . It may be noted however that this was in the context of Article 1 of Protocol No.", "1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community ... . Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant ... . 83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ...” 21.", "In the present case, the Court notes that when it comes to the decisions of the domestic authorities, their findings were limited to the conclusion that under applicable national laws the applicant had no legal entitlement to occupy the flat. The first-instance court expressly stated that while it recognised the applicant’s difficult position, its decision had to be based exclusively on the applicable laws. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention (see Stanková v. Slovakia, cited above, § 24).", "22. In this connection the Court reiterates that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end (see McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008). 23.", "However, in the circumstances of the present case the applicant was not afforded such a possibility. It follows that, because of such absence of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 14 OF THE CONVENTION 24. The applicant complained that the proceedings before the national courts had been unfair and that she had been discriminated against.", "She relied on Article 6 § 1 and Article 14 of the Convention. 25. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. 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 60,300 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 28.", "The Government submitted that there was no causal link between the applicant’s claims and the pecuniary damage claimed. As to the claim in respect of non-pecuniary damage, the Government deemed it excessive. 29. As regards pecuniary damage, the Court notes that the applicant has not supplied any evidence capable of supporting her claim which could be causally linked to the violation of the Convention it has found. It is therefore not appropriate to award any compensation under that head (see also Angelova and Iliev v. Bulgaria, no.", "55523/00, § 125, 26 July 2007, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 130, ECHR 1999-III). 30. On the other hand, although the Court has found Article 8 violated in its procedural aspect only, it considers that the applicant suffered some non-pecuniary damage, in particular feelings of frustration and injustice, not sufficiently compensated by the finding of a violation of the Convention (see Connors v. the United Kingdom, no. 66746/01, § 114, 27 May 2004).", "Deciding on an equitable basis, it awards the applicant EUR 2,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 31. The applicant also claimed EUR 369,97 for the costs and expenses incurred before the Court. 32.", "The Government made no comments. 33. 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 claimed, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 34.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 8 of the Convention concerning the applicant’s right to respect for her home admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any taxes that may be chargeable to the applicant; (ii) EUR 369,97 (three hundred and sixty-nine euros and ninety-seven cents) in respect of costs and expenses, plus any taxes that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF DONKA STEFANOVA v. BULGARIA (Application no. 19256/03) JUDGMENT STRASBOURG 1 October 2009 FINAL 01/01/2010 This judgment may be subject to editorial revision. In the case of Donka Stefanova v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 8 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19256/03) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Donka Zhekova Stefanova, a Bulgarian national born in 1927 and living in Sofia (“the applicant”), on 3 June 2003.", "On 3 March 2006 the applicant died. On 16 December 2007 two of her daughters, Ms Nevenka Nikolaeva Stefanova‑Istatkova and Ms Anka Nikolaeva Stefanova‑Petrova, expressed their wish to pursue the proceedings in her stead. 2. The applicant was represented by Mr D. Mitkov and Ms V. Dimitrova, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.", "3. On 12 March 2007 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 of the Convention). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. On 31 July 1996 the applicant was run over by a motorist, Mr A.I.", "As a result of the accident, her clothes were damaged and became unusable. Both of her arms, her right ear and her right leg were bruised. Shortly after that she was admitted to a hospital, where she spent a week, and was found to have a broken ankle and a traumatic brain injury. 5. After criminal proceedings which were later converted to administrative-penal ones, in a judgment of 10 March 1997 the Sofia District Court found A.I.", "responsible for the accident and fined him. 6. On 4 June 1997 the applicant brought a civil action against A.I. and his insurer. She sought 500,000 old Bulgarian levs (BGL)[1] for pecuniary and BGL 2,000,000 for non-pecuniary damage.", "7. Between October 1997 and March 1999 the Sofia District Court held ten hearings, the first five of which were adjourned because A.I. had not been properly summoned. The court gave judgment on 19 April 1999, awarding the applicant BGL 75,000 compensation for pecuniary and BGL 266,000 for non‑pecuniary damage. It found that there was no valid insurance contract between the insurance company and A.I.", "and for this reason held that the compensation was due solely by the latter. 8. On 29 April 1999 the applicant appealed, arguing that she had suffered more serious injuries and that the compensation awarded was inadequate. A.I. also appealed.", "As the Sofia District Court, through which the appeals had been filed, did not process them until October 2000, the applicant made a complaint about delays. As a result, on 10 November 2000 the chairman of the Sofia City Court instructed the district judge in charge of the case to send it without delay to the Sofia City Court for examination. 9. After holding a hearing on 7 June 2001, in a judgment of 11 July 2001 the Sofia City Court partly reversed the lower court’s judgment and found that A.I.’s insurance company was liable. The court also increased the award in respect of non‑pecuniary damage to 350 Bulgarian levs (BGN).", "However, the applicant’s contention that her skull had been fractured in the car accident and that this had resulted in permanent injuries was considered unsubstantiated, as no evidence in support of that had been submitted. 10. On 10 August 2001 the applicant appealed on points of law. In November 2002, while the proceedings were pending, the 1952 Code of Civil Procedure was amended and provided that henceforth the Supreme Court of Cassation had jurisdiction to hear only cases in which the amount in issue was higher than BGN 5,000. The amendment entered into force with immediate effect and was applicable to pending cases.", "Accordingly, in a decision of 25 November 2002 the Supreme Court of Cassation terminated the proceedings on the ground that the amount of the compensation claimed was below the minimum for which that court had jurisdiction to hear cases. The applicant was informed of the decision in a letter of 9 December 2002. She did not appeal against it. THE LAW I. PRELIMINARY REMARK 11.", "The Court notes that the applicant died on 3 March 2006, while the case was pending before the Court, and that two of her heirs, Ms Nevenka Nikolaeva Stefanova‑Istatkova and Ms Anka Nikolaeva Stefanova-Petrova, expressed the wish to pursue the application on her behalf. It has not been disputed that they are entitled to do so and the Court sees no reason to hold otherwise (see, among many other authorities, Horváthová v. Slovakia, no. 74456/01, §§ 26 and 27, 17 May 2005). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 12.", "The applicant complained under Article 6 § 1 of the Convention that her civil action had not been examined within a “reasonable time”. Article 6 § 1 provides 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 13. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 14. The period to be taken into consideration began on 4 June 1997 and ended on 9 December 2002. It thus lasted a little over five and a half years for three levels of jurisdiction. 15. According to the Court’s settled case‑law, 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, Rachevi v. Bulgaria, no.", "47877/99, § 73, 23 September 2004). 16. The parties presented various arguments as to the way in which these criteria should apply in the instant case. 17. The Court does not consider that the case presented any particular complexity, as A.I.’s responsibility for the accident had already been established in prior proceedings (see Rachevi, cited above, § 76).", "The only truly contentious issues were the extent of the damage suffered by the applicant and whether A.I. had been validly insured. It does not seem that the applicant was responsible for any major delays, which were mainly the result of the authorities’ failure to summon A.I. properly for five hearings, process the appeals against the Sofia District Court’s judgment in a timely fashion and examine the applicant’s appeal on points of law for more than one year and three months. Seen against the backdrop of what was at stake for the applicant – payment of compensation for serious injures sustained in a road accident (ibid., § 91, with further references) – these delays and the global duration of the proceedings cannot be seen as reasonable.", "18. There has therefore been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 19. The applicant complained under Article 6 § 1 of the Convention that the damages which she had been awarded had been too low.", "She further complained under the same provision that following the amendment to the 1952 Code of Civil Procedure her case had ceased to be reviewable by the Supreme Court of Cassation. Finally, she complained under Article 13 of the Convention that domestic law did not provide an effective mechanism for the vindication of her civil rights. 20. 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. 21.", "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 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’s heirs each claimed BGN 550, plus interest as from 31 July 1996, as compensation in respect of the non‑pecuniary damage suffered as a result of the alleged unfairness of the proceedings. They also claimed BGN 500 each as compensation in respect of the non‑pecuniary damage suffered on account of the excessive length of the proceedings. 24. The Government did not comment on the claims. 25.", "The Court observes that in the present case an award of just satisfaction can only be based on the violation of the reasonable‑time requirement of Article 6 § 1 of the Convention. Ruling in equity, as required under Article 41 of the Convention, it awards each of the applicant’s two heirs, who continued the proceedings in her stead, the full amount claimed, which, converted into euros (EUR), comes to EUR 256. To those amounts should be added any tax that may be chargeable to the applicant or her heirs. B. Costs and expenses 26.", "The applicant’s heirs sought the reimbursement of BGN 900 for costs and expenses incurred before the domestic courts and the Court. 27. The Government did not comment on the claims. 28. According to the Court’s case‑law, applicants are entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 400, plus any tax that may be chargeable to the applicant’s heirs, 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 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, 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) to Ms Nevenka Nikolaeva Stefanova‑Istatkova, EUR 256 (two hundred fifty‑six euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to Ms Anka Nikolaeva Stefanova‑Petrova, EUR 256 (two hundred fifty‑six euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) jointly to Ms Nevenka Nikolaeva Stefanova‑Istatkova and Ms Anka Nikolaeva Stefanova‑Petrova, EUR 400 (four hundred euros), plus any tax that may be chargeable to them, in respect of costs and expenses; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the claim for just satisfaction. Done in English, and notified in writing on 1 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1].", "On 5 July 1999 the Bulgarian lev was revalorized. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL)." ]
[ "THIRD SECTION CASE OF KRSMANOVIĆ v. SERBIA (Application no. 19796/14) JUDGMENT STRASBOURG 19 December 2017 FINAL 19/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Krsmanović v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Luis López Guerra,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková,Jolien Schukking, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 28 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "19796/14) 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 Serbian national, Mr Đorđe Krsmanović (“the applicant”), on 5 March 2014. 2. The applicant was represented by Mr A. Cvejić, a lawyer practising in Belgrade. 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.", "The applicant complained of the lack of an effective investigation into the ill-treatment he had allegedly sustained during his arrest and while in police custody. He relied on Articles 3, 6 § 1 and 13 of the Convention. 4. On 1 September 2015 the application was communicated to the Government. The questions were put under the procedural limb of Article 3 of the Convention.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in Zemun. A. Background to the case 6.", "On 12 March 2003 the Serbian Prime Minister, Mr Zoran Đinđić, was assassinated by members of a criminal group known as the Zemun Clan (Zemunski klan). 7. The Prime Minister’s assassination prompted the Serbian Government to declare a state of emergency and introduce measures in accordance with the State of Emergency Act 1991 (Zakon o merama za slučaj vanrednog stanja, Official Gazette of the Republic of Serbia, no. 19/1991). 8.", "During that time a large-scale police operation known as Operation Sabre (Sablja) took place. Approximately 10,000 people were arrested during the operation and placed in pre-trial detention. 9. The state of emergency lasted until 23 April 2003. B.", "The applicant’s treatment during his arrest, questioning and subsequent detention 10. The applicant was a member of a criminal group linked to the Zemun Clan. During Operation Sabre all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister’s assassination. Those arrested were also questioned about other crimes such as murders, abductions and drug trafficking. 11.", "The applicant’s arrest took place at around 4 p.m. on 1 April 2003, when five members of the Special Anti-Terrorist Unit broke into the apartment in which he was hiding with five friends. 12. The applicant claims that on the arrival of the Special Anti-Terrorist Unit he was subjected to physical and verbal abuse. Its members immediately started to kick and beat him indiscriminately all over his body and face. They put a pillowcase over his head, verbally abused him and made threats aimed at his family.", "The maltreatment continued for an hour. On the recording of his arrest, which was broadcast on national television at the beginning of April 2003, he was shown with visible bruises on his face. 13. At around 6 p.m. the applicant and his friends were taken to the police station and left in the corridor. According to the applicant, police officers passing by sporadically hit and kicked him and his friends.", "He could not identify them as his face was still covered with a pillowcase. 14. At some point two police officers came and took the applicant for questioning. He was taken to an office in which seven to nine people were present. Two or three of them were women.", "15. According to the applicant, the maltreatment continued there. He was beaten with baseball bats and police truncheons. He was beaten on the soles of his feet and the palms of his hands. A truncheon was inserted several times into his anus.", "At one point, a nylon bag was put over the pillowcase which made him lose consciousness. During all that time the applicant remembered hearing his friends screaming. 16. At around 3.30 a.m. on 2 April 2003 two police officers took him to a solitary confinement cell. He was unable to walk so the officers carried him.", "In the cell his handcuffs were taken off and a detention order was put before him for signature. 17. As alleged by the applicant, approximately half an hour later two police officers entered the cell. They handcuffed him, put a bag over his head and took him for questioning. During that time he was again beaten, kicked and maltreated.", "Throughout this time, he was not allowed to drink any water. 18. In the applicant’s version of events, after approximately two hours of maltreatment he was returned to the solitary confinement cell. He was kept there for eleven days. During the first five days no food was given to him.", "Afterwards, he was given one sandwich per day. Throughout that period police officers routinely questioned and ill-treated him in the same way as before. 19. At approximately 10 p.m. on 12 April 2003 the applicant was transferred to Belgrade District Prison (Okružni zatvor), where he remained for a year and two months pending the outcome of the criminal proceedings instituted against him. 20.", "On 15 April 2003 a prison doctor examined him and issued a medical certificate, which contained an extensive list of his injuries. These included large haematomas on the soles of his feet, palms of his hands, face, shoulders and buttocks, as well as conjunctival hyperaemia (redness) on the external parts of his eyes. The certificate also contained a statement that the applicant had been “beaten in the police station”. 21. During the first sixty days of his detention in Belgrade District Prison he was placed in a solitary confinement cell and only had contact with the doctors who examined him.", "After two months he had fully recovered from the ill-treatment he had suffered. 22. On 13 October 2003 the applicant was charged with illegal production and trafficking of drugs (neovlašćena proizvodnja i stavljanje u promet opojnih droga), abduction (otmica) and unlawful deprivation of liberty (protivpravno lišenje slobode). On 22 June 2004 he was sentenced to four years and ten months’ imprisonment. He was released from pre-trial detention on 25 June 2004 pending the outcome of appeal proceedings.", "C. The investigation concerning the alleged ill-treatment 23. On 18 May 2004 the applicant’s mother lodged a complaint with the Inspector General’s Service of the Ministry of the Interior (Generalni inspektorat Ministarstva unutrašnjih poslova), alleging that her son had been tortured by members of the Special Anti-Terrorist Unit and police officers working for the Narcotics Department of the Criminal Police Directorate (Odeljenje za suzbijanje narkomanije Uprave kriminalističke policije, also known as the Fourth Department) in Belgrade. 24. On 11 May 2005, 26 May 2005, 8 June 2005 and 12 January 2006 the applicant’s mother submitted additional information complaining that her son had been ill-treated, and that moveable property had been confiscated from his home. 25.", "On 24 February 2006 the applicant was invited to the Inspector General’s Service to give a statement about his mother’s allegations. He confirmed that he had been ill-treated. 26. On 16 March 2006 the Inspector General’s Service interviewed D.S., the Deputy District Public Prosecutor (zamenik Okružnog javnog tužioca) in Belgrade, who stated that in April 2003 he had been at the police station during the applicant’s questioning. D.S.", "gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant. On the contrary, the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected. D.S. also claimed that the applicant had had no complaints about his treatment. 27.", "On 13 June 2006 statements were taken from two police officers, R.P. and A.K. Both claimed that they had not participated in the immediate arrest, but had entered the apartment after the members of the Special Anti-Terrorist Unit had already arrested the applicant and his friends. In the apartment they had seen several people dressed in only their underwear, being handcuffed and lying face down. They denied having seen any bruises or injuries on those arrested.", "28. On 10 July 2006 the Inspector General’s Service interviewed the applicant’s wife, who made no complaints about the applicant’s treatment during his arrest or while in detention. She only complained about the confiscation of certain movables from their home. 29. On 28 September 2006 the chief of the Fourth Department of the Criminal Police Directorate in Belgrade (Načelnik četvrtog odeljenja UKP SUP), Z.K., gave a statement to the Sector for the Internal Control of the Police.", "He said that he had had no knowledge of the applicant or his friends having been subjected to any ill-treatment. 30. On 21 March 2007 the applicant’s mother’s complaint of ill-treatment of her son was rejected by the Inspector General’s Service for lack of evidence of a crime. 31. On 1 July 2007 the applicant lodged a criminal complaint with the First Municipal Public Prosecutor’s Office (Prvo opštinsko javno tužilaštvo – “the prosecutor’s office”) against a number of the unknown perpetrators as well as against three police officers identified only by surname.", "32. On 20 July 2007 the prosecutor’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant’s arrest and questioning, and an investigative judge to question the applicant. He was interviewed on 9 October 2007. 33. On 30 November 2007 the Sector for the Internal Control of the Police identified three police officers, V.M., S.P., and Z.K., in connection with the applicant’s arrest and questioning.", "The officers stated that no violence had ever been used against the applicant. On 27 December 2007 the prosecutor’s office dropped the charges against them for lack of evidence. 34. At the same time the case against the unidentified police officers remained open because, according to the prosecutor’s office, “it transpired from the evidence gathered that Krsmanović Đorđe had sustained injuries while in detention” (iz prikupljenih dokaza utvrđeno je da je Krsmanović Đorđe zadobio povrede u periodu dok mu je bio određen pritvor). It would appear that the case is still open.", "35. After learning of that decision, on 23 January 2008 the applicant took over the criminal proceedings as a subsidiary prosecutor (oštećeni kao tužilac) by requesting to have an investigation opened against V.M., S.P., and Z.K. 36. On 21 April and 18 November 2008 the investigating judge to whom the case was assigned interviewed three doctors who worked at the prison hospital. On 15 January 2009 he also interviewed the police officers accused of ill-treatment.", "On 24 March 2009 he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of. On 23 September 2009 the pre-trial chamber of the First Belgrade Municipal Court upheld the decision of the investigating judge. The applicant appealed. On 13 April 2010 the Belgrade Appellate Court upheld that decision. 37.", "On 10 July 2010 the applicant lodged an appeal on points of law with the prosecutor’s office, which was rejected on 11 October 2010. 38. On 11 July 2010 the applicant also lodged a constitutional appeal. He complained principally about the lack of an effective investigation into the events under Articles 21, 25, 27, 29, 32, 33 and 36 of the Constitution and Articles 3, 6, 13 and 14 of the Convention. On 23 July 2013 his constitutional appeal was rejected by the Constitutional Court, whose decision was served on the applicant on 11 September 2013.", "The court primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. As to the applicant’s complaint under Article 3 of the Convention, the Constitutional Court found it to be outside its temporal jurisdiction in view of the date of entry into force of the Constitution itself. In respect of the other complaints, the Constitutional Court held, inter alia, that: “it is not enough to allege a violation of one’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant’s subjective estimation or evaluation, but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right, and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the Constitution. This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal, because only a causal link presented in such manner may compel the Court to find a violation or denial of a certain right.” II. RELEVANT DOMESTIC LAW A.", "Constitution of the Republic of Serbia (Ustav Republike Srbije, published in Official Gazette of the Republic of Serbia no. 98/2006) 39. The relevant provision reads as follows: Article 25 “Physical and mental integrity is inviolable. Nobody may be subjected to torture, inhuman or degrading treatment or punishment, nor subjected to medical and other experiments without their free consent.” B. Criminal Code 1977 (Krivični zakon, published in the Official Gazette of the Socialist Republic of Serbia nos.", "26⁄77, 28⁄77, 43⁄77, 20⁄79, 24⁄84, 39⁄86, 51⁄87, 6⁄89, 42⁄89 and the Official Gazette of the Republic of Serbia nos. 16⁄90, 21⁄90, 26⁄91, 75⁄91, 9⁄92, 49⁄92, 51⁄92, 23⁄93, 67⁄93, 47⁄94, 17⁄95, 44⁄98, 10⁄02, 11⁄02, 80⁄02, 39⁄03 and 67⁄03) 40. The Criminal Code was in force from 1 July 1977 until 1 January 2006. The relevant provision reads as follows: Article 66 (Ill-treatment by public officials acting in an official capacity) “Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment of from three months to three years.” C. Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 70/01, amendments published in OG FRY no.", "68/02 and in OG RS nos. 58⁄04, 85⁄05, 115⁄05, 49⁄07, 122⁄08, 20⁄09, 72⁄09 and 76⁄10) 41. The Code of Criminal Procedure was in force from 28 March 2002 until 1 October 2013. Articles 19, 20, 46 and 235, read together, provided that formal criminal proceedings (krivični postupak) could be instituted at the request of an authorised prosecutor. For crimes subject to prosecution by the State the authorised prosecutor was the public prosecutor.", "His or her authority to decide whether to press charges, however, was bound by the principle of legality which required that he or she had to act whenever there was a reasonable suspicion that a crime subject to public prosecution had been committed. It made no difference whether the public prosecutor had learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he or she had only heard rumours to that effect. 42. Article 61 provided that if the public prosecutor decided that there were no grounds to press charges, the victim had to be informed of that decision and would then have the right to take over the prosecution of the case him or herself in the capacity of a “subsidiary prosecutor” within eight days of notification. 43.", "Articles 64 § 1, 239 § 1 and 242, taken together, provided that when the alleged perpetrator of a crime remained unknown a subsidiary prosecutor was entitled to request that the investigating judge undertake specific additional measures aimed at establishing the perpetrator’s identity (pojedine predistražne radnje) prior to deciding whether or not to apply to have a formal judicial investigation (pokretanje istrage) opened. If the investigating judge rejected that request it would, pursuant to Article 243 § 7, be for the pre-trial chamber of the same court to rule on the matter. 44. Article 257 § 2 provided that once a formal judicial investigation had been completed the investigating judge had to provide the public prosecutor with the case file, who would then have fifteen days to decide how to proceed, that is to say whether to ask for additional information from the investigating judge, lodge an indictment with the court, or drop the charges in question. 45.", "Article 259 § 2 provided, inter alia, that the provisions of Article 257 § 2 also applied, mutatis mutandis, to a subsidiary prosecutor. D. Police Act 2005 (Zakon o policiji, published in Official Gazette of the Republic of Serbia nos. 101⁄05, 63⁄09 – decision of the Constitutional Court, 92⁄11 and 64⁄15) 46. The Police Act was in force until 5 February 2016. Section 86 provided that whenever force was used the police officer concerned had to submit a written report to his superior within twenty-four hours.", "The latter would then establish whether the force used was justified and lawful. 47. Sections 84, 85 and 88 to 109 set out various types of coercive measures and the specific situations in which they could be applied, while emphasising the importance of proportionality in this regard. E. Inspector General’s Service Ordinance 2001 (Pravilnik o radu Službe generalnog inspektora RJB, published in an internal gazette of the Ministry of Interior on 12 March 2001) 48. The first Inspector General was appointed in June 2003.", "The Inspector General’s Service was answerable to the Minister of Interior. It could suggest certain measures in cases of misconduct committed by police officers and was later reorganised and renamed to the Sector for the Internal Control of the Police. III. RELEVANT INTERNATIONAL DOCUMENTS A. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 49. In its report to the Government on its visit to Serbia and Montenegro from 16 to 28 September 2004 (CPT/Inf (2006) 18; 18 May 2006) the CPT stated, among other things: “30.", "The CPT delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. ... Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody. A certain number of persons interviewed by the delegation alleged that they had been beaten with baseball bats, while forced to wear bullet-proof vests in order to prevent their injuries becoming visible. Some others alleged that they had been handcuffed to a radiator for several hours in painfully contorted positions.", "A number of allegations received included recent accounts of: beating on the palms of the hands; beating on the soles of the feet (a practice known as ‘falakaʼ); placing a plastic bag over the detainee’s head to cause temporary asphyxiation; the infliction of electric shocks on different parts of the body, including the genitals; sleep deprivation for prolonged periods; being forced to eat salt without being offered water to drink for the whole day. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture. ... 32. In almost all of the police stations visited in Belgrade, the delegation found baseball bats and other non-standard and unlabelled objects (such as metal bars or wooden sticks) in offices used for interrogation purposes. This lends further credibility to the allegations received that persons deprived of their liberty by the police had been beaten with such objects.", "... 34. The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours of police custody, and that on occasion such persons may be subject to severe ill-treatment (or even torture). The number and severity of allegations of police ill-treatment received and documented by the delegation calls for urgent action by the national authorities; senior officials did not contest that the ill-treatment of persons deprived of their liberty by the police represents a serious problem in Serbia. Constant vigilance will be required if the absolute prohibition of torture and inhuman or degrading treatment is to be upheld.” B. United Nations Human Rights Committee 50.", "The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16 December 1966, entered into force in respect of Serbia on 12 March 2001. The relevant part of the “concluding observations” on Serbia of the UN Human Rights Committee, the body of independent experts set up to monitor the implementation of the treaty, reads as follows (document CCPR/CO/81/SEMO of 12 August 2004, § 15): “While taking note of the establishment in Serbia of [Inspector General’s Service] in June 2003, the Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations. The State party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 51. The applicant complained that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment by police officers during his arrest and detention.", "He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Temporal jurisdiction (a) The parties’ submissions 52. The Government submitted that according to Court’s well-established case-law the Court did not have jurisdiction ratione temporis in cases where an event happened before 3 March 2004, when the Convention entered into force in respect of the respondent State in question. They argued that those principles were set out in the Grand Chamber judgment Blečić v. Croatia ([GC], no. 59532/00, § 77-82, ECHR 2006‑III) and were applicable to this case.", "53. The applicant argued that the obligation imposed on the respondent Government was set out in Stanimirović v. Serbia (no. 26088/06, 18 October 2011), which made it clear that failures of a respondent Government to provide an effective investigation were not affected by temporal jurisdiction for events and facts before ratification. (b) The Court’s assessment 54. The Court has consistently held that the procedural obligation to investigate under Articles 2 and 3 of the Convention is not a procedure of redress in respect of an alleged violation that may have occurred before the entry into force of the Convention with respect to the State concerned.", "On the contrary, an obligation to carry out an effective investigation has its own distinct scope of application and operates independently from the substantive limb of Articles 2 and 3 (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 136, ECHR 2009). Throughout the Court’s case-law, that obligation has evolved into a separate and autonomous duty, capable of binding the State even when the death or ill-treatment took place before ratification (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009; Stanimirović, cited above, §§ 28-29; and Otašević v. Serbia, no. 32198/07, § 24, 5 February 2013).", "The obligation is of a continuing nature, in the sense that it binds the State throughout the period in which the authorities can reasonably be expected to take measures with the aim of elucidating the circumstances of the death or ill-treatment and establishing responsibility for them (see Šilih, cited above, § 157). 55. However, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation under Articles 2 and 3 in respect of death or ill-treatment that occurred before ratification is not open-ended (ibid., § 161). Where the impugned events occurred before ratification, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction (ibid., § 162). Furthermore, there must be a genuine connection between the death or ill-treatment and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Articles 2 and 3 to come into effect.", "For that connection to be established, two cumulative criteria must be met: firstly, the lapse of time between the death or ill-treatment and the entry into force of the Convention must have been reasonably short (not exceeding ten years) and secondly, it must be established that a significant proportion of the procedural steps that were decisive for the course of the investigation were or ought to have been carried out after the ratification of the Convention by the State concerned (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 145-148, ECHR 2013). 56. In the present case, it is to be noted that no significant time elapsed between the alleged ill-treatment of the applicant and the ratification of the Convention by the State. In addition, although no investigation into applicant’s allegations was ever initiated by the competent authorities, all of the pre-investigative steps were conducted after the Convention came into force.", "As both criteria have been satisfied, the Court dismisses the Government’s objection ratione temporis. 2. Six-month time-limit (a) The parties’ submissions 57. The Government contended that the applicant’s complaint had been lodged out of time. In particular, they argued that a constitutional appeal had not been an effective legal remedy in his case.", "He should therefore have lodged an application with the Court no later than 13 November 2010, six months after the decision of the Belgrade Appellate Court was served on him. 58. In the alternative, the Government claimed that the applicant had also failed to comply with the six-month rule because he had omitted to promptly inform the domestic authorities of the alleged ill-treatment and so act diligently. He should have lodged the application with the Court as soon as he had become aware that the investigation at domestic level was not effective. 59.", "The applicant contested these arguments, claiming that he had acted diligently and that at the time when he had lodged his complaints with the Constitutional Court, a constitutional appeal had been an effective legal remedy. (b) The Court’s assessment 60. The Court reiterates that the purpose of the six-month rule is to promote security of the law. It should ensure that it is possible to ascertain the facts of a case before that possibility fades away, making a fair examination of the question in issue next to impossible (see Stanimirović, cited above, § 30). 61.", "The six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. The Court has already held that a constitutional appeal should, in principle, be considered an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced against Serbia after 7 August 2008 (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 84, 25 March 2014, and Vinčić and Others v. Serbia, nos. 44698/06 and others, § 51, 1 December 2009). It sees no reason to depart from this practice in the present case.", "If the applicant had raised a substantive complaint under Article 3 concerning the events in 2003, the complaint would have been (as the Constitutional Court also established) incompatible with the provisions of the Convention ratione temporis. However, the applicant’s complaint concerns the procedural obligation to conduct an effective investigation. The applicant raised this complaint in his appeal to the Constitutional Court but the reply he received did not deal with the specific complaint. The Government’s contention, that the remedy was not capable of addressing the issues because of the temporal limitation on the Constitutional Court’s jurisdiction, is therefore not convincing. No other argument has been made which would suggest that the applicant could not reasonably have expected that the Constitutional Court was able to consider a complaint concerning the procedural obligation, and so the Court accepts that the six month period should be calculated from the moment when the applicant received the decision of the Constitutional Court.", "62. As for the Government’s objection that the applicant had failed to act diligently at domestic level, and that he should have lodged his application with the Court as soon as he had become or ought to have become aware that the criminal investigation into his ill-treatment was not effective, the Court reiterates that in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are or should have become aware of the lack of an effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 263, ECHR 2014 (extracts); Bulut and Yavuz (dec.), cited above; Bayram and Yıldırım (dec.), cited above; and Atallah v. France (dec.), no. 51987/07, 30 August 2011). 63.", "The Court has already clarified that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, applicants must contact the domestic authorities promptly concerning progress in the investigation and, on the other, they must lodge their application promptly with the Court as soon as they become or should have become aware that the investigation is not effective (see Mocanu and Others, § 264, cited above; Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011; Akhvlediani and Others v. Georgia (dec.), no. 22026/10, §§ 23-29, 9 April 2013; and Gusar v. Moldova (dec.), no. 37204/02, §§ 14-17, 30 April 2013). 64.", "The first aspect of the duty of diligence – that is, the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, the Court has held that an applicant’s delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of an assault which occurred in the presence of police officers – as the authorities’ duty to investigate arises even in the absence of an express complaint (see Velev v. Bulgaria, no. 43531/08, §§ 59-60, 16 April 2013). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for him or her to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012).", "65. The Court notes that the applicant was kept in solitary confinement, at least until 12 June 2003, during which time he had no contact with anyone apart from the doctors monitoring his state of health. He was released from detention on 25 June 2004, by which time a complaint of ill-treatment had been submitted by his mother (see paragraphs 23 and 24 above). 66. With regard to the second aspect of this duty of diligence – that is, the duty on an applicant to lodge an application with the Court as soon as he or she realises or ought to realise that an investigation is not effective – the Court has stated that the issue of identifying the exact point in time that that stage occurs necessarily depends on the circumstances of the case, and that it is difficult to determine it with precision (see Nasirkhayeva, cited above).", "The Court has rejected as out of time applications where there were excessive or unexplained delays on the part of applicants once they became or ought to have become aware that no investigation had been instigated or that the investigation had lapsed into inaction or become ineffective and, in any of those eventualities, there was no immediate, realistic prospect of an effective investigation being provided in the future (see, among other authorities, Narin v. Turkey, no. 18907/02, § 51, 15 December 2009, and Aydinlar and Others v. Turkey (dec.), no. 3575/05, 9 March 2010). 67. Turning to the circumstances of the present case, the Court notes that in 2007, after his mother’s complaint had been rejected (see paragraph 30 above), the applicant lodged a criminal complaint with the prosecutor’s office (see paragraph 31 above).", "After his criminal complaint was dismissed (see paragraph 33 above), he took over the criminal proceedings as a subsidiary prosecutor (see paragraph 35 above). According to the Court’s well established case-law, where a national system allows a victim of ill-treatment to take over the prosecution of the case him or herself in the capacity of a “subsidiary prosecutor”, such post-ratification proceedings must also be taken into account (see Otašević, cited above, § 25, and Butolen v. Slovenia, no. 41356/08, § 70, 26 April 2012). The applicant thus appropriately pursued the legal remedies available to him in challenging the decisions of the judicial bodies regarding his subsidiary criminal prosecution. 68.", "Having regard to the above considerations, the Court finds that by lodging his application within six months of 11 September 2013 (see paragraph 38 above), the date of service of the Constitutional Court’s decision, the applicant complied with the six-month time-limit provided for in Article 35 § 1 of the Convention. The Government’s objection is therefore dismissed. 3. Conclusion The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Submissions by the parties 69. The applicant complained that the respondent Government had failed to conduct an independent, effective and thorough investigation into his ill-treatment during his arrest and while in detention.", "He complained that the State authorities had been inefficient and that his complaint had been dismissed on the grounds that the offenders could not be identified. In the applicant’s view, the people responsible for his ill-treatment were easily identifiable to the respondent Government. 70. The Government contended that the investigation carried out in the present case had met the procedural requirements of Article 3 of the Convention and had been thorough and effective. They submitted that the allegations raised by the applicant’s mother in her initial complaint could not be considered credible as she had learned of them from the applicant’s friends and the applicant’s wife failed to reaffirm them.", "They, also, submitted that the effectiveness of a remedy did not depend on the certainty of a favourable outcome for the applicant and that the domestic authorities had carried out all the necessary steps to examine the complaint raised by the applicant’s mother; that is: they had examined all the relevant forensic evidence, collected medical documentation and related reports, and conducted interviews with the applicant, his mother, his wife and other witnesses. 71. The Government also indicated that in 2007, after the applicant had lodged his criminal complaint, the relevant authorities had once again examined all the allegations. 72. They lastly submitted that the positive obligation under the procedural limb of Article 3 of the Convention was not an obligation of result, but of means.", "Their decisions to dismiss the complaints raised by the applicant and his mother had been based on findings that no excessive force had been used against the applicant and that the members of the Special Anti-Terrorist Unit had acted lawfully. 2. The Court’s assessment (a) General principles 73. The Court reiterates that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police or other such agents of the State 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 (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions, 1998‑VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV).", "Whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Besides, the authorities must take into account the particularly vulnerable situation of victims 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 Stanimirović, cited above, § 39, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 133, ECHR 2004-IV). 74. Even though the obligation to investigate is not an obligation of result, but of means, there are several criteria an investigation has to satisfy for the purposes of the procedural obligation under Articles 2 and 3 of the Convention (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no.", "52391/99, §§ 323-346, ECHR 2007‑II). Firstly, an effective investigation is one which is adequate, that is an investigation which is capable of leading to the identification and punishment of those responsible (see Labita [GC], cited above, § 131; Boicenco v. Moldova, no. 41088/05, § 120, 11 July 2006; and Stanimirović, cited above, § 40). Secondly, for an investigation to be considered 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, which means not only a lack of hierarchical or institutional connection but also a practical independence (see Ramsahai and Others [GC], cited above, § 325; see also Đurđević v. Croatia, no. 52442/09, § 85, ECHR 2011 (extracts), and the authorities citied therein).", "Thirdly, the investigation has to be thorough, which 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, cited above, §§ 103; see also Stanimirović, cited above, § 40). Fourthly, there is an obligation to react promptly and take action 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 ill-treatment has been used (see Stanimirović, cited above, § 39). Fifthly, an effective investigation is one which affords a sufficient element of public scrutiny to secure accountability. While the degree of public scrutiny may vary, the complainant must be afforded effective access to the investigatory procedure in all cases (see Đekić and Others v. Serbia, no.", "32277/07, § 33, 29 April 2014). (b) Application of those principles to the present case 75. Turning to the circumstances of the present case, the Court is mindful that the alleged ill-treatment of the applicant happened in a state of emergency following the assassination of the Serbian Prime Minister in 2003. The Court is aware that the applicant was arrested and detained in the context of Operation Sabre, when a large number of people were arrested and placed in pre-trial detention. 76.", "When a person raises a credible assertion for the purposes of the positive obligation to investigate under Article 3, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih, cited above, § 195, and Bouyid v. Belgium [GC], no. 23380/09, § 121, ECHR 2015). 77. As to the question whether such an assertion was raised in the present case, the Court notes that the applicant and his mother lodged complaints with the relevant domestic authorities. The complaints were sufficiently detailed, containing precise dates, locations and the possible perpetrators.", "The medical certificate in which numerous injuries on the applicant’s body were recorded was also at the disposal of the authorities (see paragraph 20 above). In addition, there was a video broadcast on national television which showed the applicant with visible bruises on his face (see paragraph 12 above). 78. The complaints submitted by the applicant and his mother, the medical evidence and the video in question justified an “arguable claim” within the meaning of Article 3 of the Convention that the applicant had been subjected to ill-treatment during his arrest and while in detention. That being so, the Serbian authorities were under an obligation to conduct an effective investigation.", "79. It has not been disputed by the parties that certain investigative steps into the applicant’s alleged ill-treatment were carried out by three different authorities – the Inspector General’s Service, the prosecutor’s office and an investigative judge. 80. However, all three investigations terminated because of an alleged absence of evidence, either of the ill-treatment or of someone’s guilt. The Court notes that the investigations were mainly confined to interviews with several police officers involved in the incident.", "The applicant and his mother were not allowed to participate effectively in those investigations or to have the police officers questioned and corroborate their allegations. Besides, little attention was given to the applicant’s allegations despite their being substantiated by the medical certificate, and their allegations were not seriously assessed. 81. Whilst it is true that the domestic authorities were presented with sufficient evidence of the applicant’s ill-treatment, they failed to identify those involved. The mere fact that no possible eyewitnesses to the applicant’s ill-treatment were ever identified amounts to a significant shortcoming in the adequacy of each investigation and all three investigations together.", "In the Court’s view, after being alerted to the applicant’s allegations of ill-treatment, the investigative authorities should have conducted interviews with the other people present during his arrest or in the detention facility or corroborated his statement with the statements of those interviewed. However, they failed to do so. 82. The specific measures aimed at establishing the potential perpetrators’ identities in all three investigations were carried out by police officers answering to the same chain of command as the officers under investigation. 83.", "In the final analysis, the fact that the investigations conducted by the State authorities proved incapable of even identifying the State agents who abused the applicant – even though it had been proven that the applicant was subjected to ill-treatment while under the control of the police (see paragraphs 20 and 34 above) – reinforces the Court’s doubts as to the effectiveness of the investigation. 84. These findings are enough for the Court to consider that the applicant did not have the benefit of an effective investigation. There has accordingly been a violation of the procedural obligation under Article 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 85. The applicant also complained that the investigation into his alleged ill-treatment had been unfair and lengthy, and that because of that the people responsible had remained unpunished. He relied on Article 6 § 1 of the Convention, the relevant parts of which read: Article 6 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” 86. The Court reiterates that the Convention does not guarantee the right to have third parties prosecuted, save in certain circumstances not relevant to the present case (compare and contrast Perez v. France [GC], no.", "47287/99, § 70, ECHR 2004‑I). The applicant’s complaint under Article 6 § 1 is, therefore, ratione materiae incompatible with the Convention and must accordingly be declared inadmissible. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 87. The applicant complained that he had not had an effective remedy at his disposal.", "He relied on Article 13 of the Convention, which reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 88. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 89. Since the applicant’s complaint relating to Article 13 amounts to a repetition of his complaint under Article 3 and having regard to the finding relating to Article 3 (in paragraph 84 above), it is not necessary to examine whether there has also been a violation of Article 13 in this case. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 90. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 91. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 92.", "The Government contested that claim. 93. The Court awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 94.", "The applicant also claimed EUR 4,200 for costs and expenses. 95. The Government did not comment. 96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "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 4,200 covering costs and expenses. C. Default interest 97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning Article 3 under its procedural limb and Article 13 of the Convention admissible; 2.", "Declares the complaint under Article 6 § 1 of the Convention inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb; 4. Holds that there is no need to examine separately 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, the following sums, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,000 (four thousands euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,200 (four thousands two hundreds euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelena JäderblomRegistrarPresident" ]
[ "FOURTH SECTION CASE OF DOROTA KANIA v. POLAND (No. 2) (Application no. 44436/13) JUDGMENT STRASBOURG 4 October 2016 FINAL 06/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dorota Kania v. Poland (No.", "2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44436/13) 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 Dorota Kania (“the applicant”), on 30 June 2013. 2.", "The applicant was represented by Mr S. Hambura, a lawyer practising in Berlin, Germany. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The applicant alleged that her right to freedom of expression had been breached, in violation of Article 10 of the Convention. 4.", "On 10 September 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Warsaw. A.", "The article published in Wprost 6. On 30 March 2007 the applicant, who was at that time a journalist of the weekly magazine Wprost, contacted A.C., the then rector of the University of Gdańsk, in order to inform him that she considered him to be a long-term informant for the communist secret services in the past. She did not refer to any relevant documentary evidence in her possession. 7. On 2 April 2007 the applicant published an article in Wprost entitled “Agents Wearing Ermine”, alleging that during the communist times A.C. had been an informant for the communist secret police.", "The article had the subheading “Leaders of university anti-vetting revolt collaborated with communist secret services”. A photo showing A.C. in the course of his official duties alongside the article had the caption: “A.C., rector of the University of Gdańsk, used to be an informant for the communist secret services under the name Lek”. The article did not quote its sources, referring in general terms to unspecified documents. 8. The article was also published on the magazine’s website (www.wprost.pl), where it was available until 8 April 2007.", "9. On 9 May 2007 the applicant obtained consent from the President of the Institute of National Remembrance (Instytut Pamięci Narodowej –“the IPN”) to access its files. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. On 10 May 2007 the applicant checked its files registered as Virginia no. 23461, IPN Gd 003/190.", "10. On an unspecified date A. C. informed the prosecution authorities that he had been libelled by the author of the article. On 10 May 2007 the Regional Prosecutor in Warsaw refused to institute a criminal investigation and informed A.C. that the offence alleged could only be prosecuted by way of private prosecution. 11. A.C.’s lawyer requested Wprost to publish an apology rectifying the allegations against him and his reply to them.", "On 15 May 2007 the magazine refused to do so. 12. On 14 May 2007 the magazine published an article written by the applicant (but signed R.P.) entitled “The Party of Fear”. It was available on the magazine’s website until 20 May 2007.", "Its main thrust was that high‑society former informants opposed amendments to vetting legislation introduced in 2006 (see paragraphs 36 below) for fear that their past would come to light. It referred to A.C. as a former informant and contained his photo as rector of the University of Gdańsk. 13. On 15 May 2007 the Media Ethics Council (Rada Etyki Mediów), a body composed mainly of media representatives designated to observe whether journalists followed the applicable rules of professional ethics, sent a letter to the applicant. It criticised the articles in so far as they alleged A.C.’s involvement with the communist secret services, saying that the arguments presented by the applicant in the articles were not sufficiently convincing.", "It also criticised the applicant for her failure to refer to the precise sources of her allegations. It further referred to a previous public plea to the media requesting them to deal with allegations of collaboration with the communist secret services with the utmost diligence, seriousness and caution, so as not to cause detriment to anyone and to avoid a sensationalist approach to a very serious issue. It recommended that only thoughtful discussion should be held about themes of such importance as collaboration with the secret services and the manner in which vetting legislation should be applied, commensurate with the gravity of the issues involved. 14. On 12 August 2007 the same magazine published an article “New Documents about the Chancellor – Informant”.", "It was available on the magazine’s website until 19 August 2007. Its thrust was also that A.C. was a former informant. The article did not quote its sources and merely referred generally to unspecified documents. A photo of A.C. was again published alongside it. B.", "The action for libel brought by A.C. and the vetting proceedings in respect of A.C. 15. On 14 August 2007 A.C. brought a private bill of indictment against the applicant and S.J., the editor-in-chief of the magazine at that time. It was argued that they had libelled him by publishing the articles and by disseminating untrue information alleging secret and conscious collaboration with the communist secret services. It was submitted that this publication could discredit him in the eyes of the public and result in him losing the confidence necessary to perform his duties as a public university rector, a criminal offence punishable under Article 212 of the Criminal Code. 16.", "Criminal proceedings were instituted against the applicant and S.J., but were subsequently stayed in May 2010 to obtain information about the result of the vetting process (procedura lustracyjna) in respect of A.C. which was pending at the time. 17. At a hearing on 15 March 2011 in the latter proceedings, the Gdańsk Regional Court held, referring to documents stored by the IPN, that A.C. had made a true vetting statement to the effect that he had not been an informant for the communist secret services. The court established that he had been registered as such, but without his consent or knowledge. It further noted that on 15 April 2003 A.C. had obtained the security certificate issued by the Internal Security Agency guaranteeing him access to classified information.", "He had therefore already been positively vetted for integrity by the authorities of a democratic State prior to the judgment. 18. The Gdańsk Court of Appeal upheld the first-instance judgment on 7 July 2011. C. The applicant’s conviction by the first-instance court 19. On 11 October 2011 the criminal proceedings against the applicant were resumed.", "20. On 15 February 2012 the Warsaw District Court held that the applicant and editor were guilty of libel under Article 212 § 2 of the Criminal Code. 21. The court found that the plaintiff had been working at the University of Gdańsk since 1974. He had been questioned by the communist secret police on several occasions before 1989, when the communist system in Poland had collapsed.", "The applicant had contacted him, apparently by telephone, prior to publication of the first article of 2 April 2007 claiming to know that he had been an informant. She had neither informed him about any IPN documents on which she would be basing her allegations nor sought to meet him in person. 22. The applicant stated before the court that she had written the articles motivated by the public interest. A.C. was a well-known personality and society should be made aware of persons in positions of responsibility who were former informants for the communist secret police.", "23. The court considered that while before it the applicant had referred to IPN documents, neither the documents she had submitted originating from these files nor the full file obtained by the court had supported the conclusion that A.C. had been an informant. Certain documents did not refer to him at all, while others did not indicate that he had been an informant. He had never declared willingness to become one. The court referred to a document in the IPN’s files which noted his reluctance to be involved with the services when urged by them to turn into an informant.", "In these files he was only referred to as being on the staff of the university in the 1970s. They also demonstrated that he had been questioned by the communist services after coming back to Poland following a scholarship in the United States. 24. The court concluded that the documents it had before it in evidence were manifestly insufficient to hold that the plaintiff had been an informant. 25.", "In the light of the documents available, the thesis advanced by the applicant was not only devoid of factual basis, but also incompatible with her obligation to show proper journalistic diligence. She had only obtained access to the full set of IPN files concerning A.C. after her first article had been published. She had only received a decision from the director of the IPN allowing her to access the documents on 9 May 2007, after the article had been published and created a considerable media stir. She had failed to contact A.C. prior to the publication to try to check the veracity of the information, apart from her telephone call to him whereby she had only informed him that she would be publishing the article. 26.", "The Warsaw District Court concluded that the applicant had failed to show the journalistic diligence required of her under section 12 of the 1984 Press Act. The impugned articles contained unreliable information, which she had assessed in a superficial manner. Being an informant for the communist secret police was perceived in society in an extremely negative manner. It was therefore not open to doubt that allegations made by the applicant could stigmatise A.C. and undermine public confidence in his capacity to hold office within the meaning of Article 212 of the Criminal Code. The mere fact that the court had gathered more material relevant to establishing the facts concerning A.C.’s past than the applicant had had at her disposal prior to the publication of the impugned articles demonstrated that she had formulated her allegations without a sound factual basis.", "In the light of that material, it had to be concluded that the statements made in the article were untrue, or at least unfounded. 27. The court referred to the Court’s case-law on Article 10 of the Convention on freedom of the press. It noted that that freedom carried duties and responsibilities on the part of journalists. It was limited by the criterion of truthfulness on the one hand, and the necessity to protect important values such as dignity, reputation, honour and the private life of individuals on the other.", "In the present case, the applicant had not had sufficient knowledge at her disposal to support the factual thesis she had advanced in the articles. She had therefore overstepped the limits of acceptable criticism, defamed the plaintiff and thereby committed a criminal offence. 28. The court imposed fines on the applicant and her co-defendant, the magazine’s editor-in-chief. It determined the amount of the applicant’s fine at 3,000 Polish zlotys (PLN - approximately 750 euros (EUR)) and ordered her to pay PLN 2,500 (approximately 625 EUR) to charity.", "The court observed that the amount of the fine had been determined with regard to the degree of the applicant’s guilt. The publication of the articles had been her idea and she had written them. However, the fine imposed on her was lower than that imposed on the editor, regard being had to the fact that her income was lower than his. The court further noted that the plaintiff had demanded that a custodial sentence be imposed on the applicant. However, the court was of the view that a non-custodial sentence was sufficient in the circumstances, commensurate with the gravity of the offence.", "It further ordered that the judgment be made public, having regard to a request submitted by the plaintiff and Article 215 of the Criminal Code, which obliged the court to allow such requests in cases involving convictions based on Article 212 of that Code. D. The applicant 29. The applicant and her co-accused appealed, raising many procedural arguments. 30. On 26 September 2012 the Warsaw Regional Court upheld the judgment, essentially sharing the findings and views of the first-instance court.", "The defendants’ appeals were considered by the court to be unfounded. The court ordered the applicant to pay PLN 300 (approximately EUR 85) in costs to the State Treasury. It further ordered her and her co‑accused to pay jointly the plaintiff’s costs before the appellate court, amounting to PLN 3,100 (approximately EUR 775). II. RELEVANT DOMESTIC LAW A.", "The Constitution 31. Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 32. Article 54 § 1 guarantees freedom of expression. It states, in so far as relevant: “Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.” B.", "Criminal Code 33. Article 212 of the Criminal Code provides, in so far as relevant: “1. Whoever imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such or characteristics as may lower that person, group or entity in public esteem or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year. 2. If the perpetrator commits the act described in paragraph 1 through the media he shall be sentenced to a fine, a restriction of liberty or imprisonment not exceeding two years.” 34.", "Article 213 of the Code provides as follows: “1. The offence specified in Article 212 § 1 is not committed if the allegation made in public is true. 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life, evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone or corruption of a minor.” C. Other relevant domestic law 35. In accordance with section 12(1)(1) of the Press Act, a journalist is under a duty to act with particular diligence in gathering and using information, and is, in particular, required to verify the truthfulness of information obtained.", "36. On 3 August 1997 the 1997 Lustration Act entered into force. It imposed on certain categories of persons exercising public functions an obligation to make a declaration that prior to 1989 they had not been informants collaborating with the communist secret services. Collaboration within the meaning of this Act was to mean intentional and secret collaboration with operational or investigative branches of the State’s security services as a secret informer or assistant in the information gathering process. 37.", "The Law of 18 December 1998 on the Institute of National Remembrance (Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu – “the IPN Act”) entered into force on 19 January 1999. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. Right of access to those documents was guaranteed primarily to “injured parties” as defined in the IPN Act. 38. The IPN Act was amended by the Law of 18 October 2006 on disclosing information about documents of the State security services from the period between 1944 and 1990 and their content (ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944‑1990 oraz treści tych dokumentów – “the 2006 Lustration Act”).", "The amendments entered into force on 15 March 2007. They essentially reiterated an obligation for persons holding public offices to make a declaration that they had not been informants. 39. The 2006 Lustration Act and IPN Act were further amended by the Law of 14 February 2007. The amendments entered into force on 28 February 2007.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 40. The applicant complained of a breach of her right to freedom of expression under Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 41. The Government contested that argument. A. Admissibility 42.", "The applicant submitted in her application form that the judgment given by the appellate court on 26 September 2012 (see paragraph 30 above) had been served on her lawyer on 2 January 2013. No document confirming the date of service was submitted to the Court at that time. The applicant was requested to do so. She stated in reply that she had requested the registry of the domestic court for a copy of a service confirmation slip and submitted its refusal to make the document available to her. 43.", "The Government expressly acknowledged that the applicant had complied with the requirement to lodge her application with the Court within a period of six months from the date on which the final decision was taken. 44. On numerous occasions, the Court has considered the six‑month rule a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004‑II). It is not open to the Court to set aside the application of that rule solely because a respondent Government have not made a preliminary objection based on that rule (see Walker v. the United Kingdom (dec.), no.", "34979/97, ECHR 2000-I). However, in the present case the Government have addressed this issue. Given their express acceptance of the applicant’s compliance with the requirement to lodge an application within six months, and regard being had to the document submitted by the applicant and her difficulties in obtaining evidence relating to the date of service of the judgment on her lawyer (see paragraph 42 above), the Court accepts that she complied with that requirement. 45. The Court has held in previous cases that if a Government do not plead an applicant’s failure to exhaust applicable remedies, it is not for the Court to consider this matter of its own motion (see Rydz v. Poland, no.", "13167/02, § 72, 18 December 2007 and Rybacki v. Poland (dec.), no. 52479/99, 9 October 2007). The Court notes that the Government accepted expressly that the applicant exhausted relevant domestic remedies. 46. The Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments (a) The applicant 47.", "The applicant disagreed with the Government’s argument that the statements about A.C.’s involvement in the communist secret services were statements of fact. She submitted that the contested articles had been based on reliable sources she had verified. Her assessment of the IPN files available had led her to the conclusion that the plaintiff had collaborated with these services in the past. 48. The applicant disagreed that her opinions should be assessed in terms of truth or falsehood.", "Acting in her capacity as a journalist, she had a right to share her findings and value judgments about A.C. with the public. The domestic courts, having before them as evidence the same IPN files, had reached different conclusions as to the nature of his involvement. Such a divergence of opinions should be considered normal in a democratic society, had it not been for the subsequent negative consequences for the applicant, namely her criminal conviction. 49. The applicant had formed her opinion on the basis of many other sources, not only the files referred to above.", "It would have been unreasonable to expect her to abstain from expressing any views unless she had been in possession of evidence proving her point beyond reasonable doubt. In such cases, it was hardly ever possible to get hold of a complete file or written declaration confirming collaboration with the former communist secret services. The applicant had never declared that she had had access to full documentation concerning the plaintiff’s contacts with these services. Her opinions had been neither immoderate nor expressed in bad faith. 50.", "She further argued that the impugned articles related to a public debate on a subject of general concern, as the issue of collaboration of Polish academics with the communist security services was of considerable significance. She referred in this context to the Court’s judgment in the case of Braun v. Poland (no. 30162/10, § 50, 4 November 2014) where the Court had confirmed this. Furthermore, the Court had held in that case that it had been unable to accept the domestic court’s approach that the applicant had been obliged to prove the veracity of his allegations. The same approach should be applied in the applicant’s case.", "51. The applicant was of the view that the interference had been excessive. The fine and order to pay damages could have a chilling effect on freedom of expression, all the more so as she had been prosecuted in a criminal trial for expressing her views. 52. Finally, she argued that the domestic courts had failed to have due regard to the standards of Article 10 of the Convention as the appellate court had made no reference whatsoever to this freedom in its judgment.", "(b) The Government 53. The Government averred that the interference had a legal basis, namely Article 212 § 2 of the Criminal Code (see paragraph 33 above), thus the limitation on freedom of expression was prescribed by the domestic law and served a legitimate aim. 54. They further argued that the impugned articles about the alleged past of A.C. as a secret and conscious service’s informant were undoubtedly factual statements. 55.", "The applicant had presented information selectively. A.C.’s requests to rectify untrue information published about him had been ignored (see paragraph 11 above). The domestic courts had found that the applicant had not acted with due diligence while gathering and verifying her materials. In so far as the applicant had testified that she had relied on the file from the IPN, the court had examined the relevant files in detail. Importantly, it had found that it had provided no basis for a conclusion that the plaintiff had been an informant.", "56. The Government emphasised that the courts had noted that the applicant had contacted A.C. prior to the publication of the first article, but merely to tell him that she had planned to publish the article containing allegations about him. The articles had subsequently been published despite his protestations. 57. The applicant’s good or bad faith should be assessed in the light of the fact that she had only obtained access to the IPN files after the first article containing the allegations against A.C. had been published.", "She had actually read the files on 10 May 2007 (see paragraph 9 above), several weeks afterwards. She had failed to react in any way to the opinions voiced by the Media Ethics Council, which had regarded her article as an improper breach of A.C.’s rights (see paragraph 13 above). Information published in the articles had amounted to a distortion of the facts, regard being had in particular to the titles given to the texts. The applicant had therefore failed to respect the requirements of responsible journalism. 58.", "The Government further argued that the defendant had been rector of the University of Gdańsk at the material time. The allegations against him had been of such a nature as to seriously affect his reputation and good name. The impugned articles had been published both in paper format and online. The general public had therefore had access to them for a relatively long period of time. This had made the damage suffered by A.C. even more serious.", "The issues involved in the articles fell within the notion of public debate on a subject of general public concern. However, freedom of expression could not render an infringement of personal rights by way of dissemination of untrue information legitimate. Nothing had exonerated the applicant from her obligations to act ethically and to protect the personal rights of persons concerned by her texts. 59. The Government stressed that the courts had referred to the Court’s case‑law on Article 10 of the Convention on freedom of the press.", "60. As to the severity of the penalties imposed, the Government submitted that the court had determined the fine to be imposed on the applicant, taking into consideration her personal, family and financial situation. 2. The Court’s assessment (a) The applicable principles 61. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment (see Lingens v. Austria, § 41, 8 July 1986, Series A no.", "103, and Braun, cited to above, § 57). 62. In this context, the safeguards to be afforded to the press are of particular importance (Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999‑I and Delfi AS v. Estonia [GC], no. 64569/09, § 132, 16 June 2015).", "Not only does the press have the task of imparting 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” in imparting information of serious public concern (see, among other authorities, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and Gawęda v. Poland, no. 26229/95, § 34, ECHR 2002‑II). Although the press must not overstep certain boundaries, particularly in respect of the reputation and rights of others and the need to prevent disclosure of confidential information, its duty is nevertheless to impart information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no.", "298, and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997‑I). 63. Nonetheless, Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of this provision, freedom of expression carries with it duties and responsibilities, which also apply to the media even with respect to matters of serious public concern. The protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, § 65, ECHR 1999‑III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; Rusu v. Romania, no. 25721/04, § 24, 8 March 2016; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos.", "3002/03 and 23676/03, § 42, ECHR 2009). The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including, and of relevance to the instant case, his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (see Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015).", "64. Furthermore, Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of this provision, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. By reason of these “duties and responsibilities”, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996‑II; Fressoz and Roire [GC], cited above, § 54; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos.", "21279/02 and 36448/02, § 67, ECHR 2007‑IV). 65. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Bladet Tromsø and Stensaas [GC], cited above, § 66).", "These factors, in turn, require consideration of other elements such as the authority of the source, whether the newspaper had conducted a reasonable amount of research before publication (see Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner (Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (Bergens Tidende and Others, cited above, § 58). 66. In this connection, the Court reiterates that the journalists’ obligations referred to above require that the media should be able to reasonably regard their sources as reliable with respect to the allegation they make, and that the more serious an allegation is, the more solid the factual basis has to be (see Pedersen and Baadsgaard, cited above, § 78; McVicar v. the United Kingdom, no.", "46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas [GC], cited above, § 66; and Wołek, Kasprów and Łęski v. Poland (dec.), no. 20953/06, 21 October 2008). 67. In the exercise of its supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in cases such as the present, namely freedom of expression protected by Article 10 on the one hand, and the right of the person concerned to protect his reputation on the other, a right enshrined in Article 8 of the Convention as part of the right to respect for private life (see Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 43, 3 December 2013).", "68. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009 and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011).", "Accordingly, the margin of appreciation should in principle be the same in both cases. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012). 69. Furthermore, the Court has reiterated on many occasions that in assessing the proportionality of an interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, among many other authorities, Weigt v. Poland (dec.), no.", "74232/01, 11 October 2005; Skałka v. Poland, no. 43425/98, § 38, 27 May 2003; and Sokołowski v. Poland, no. 75955/01, § 51, 29 March 2005). (b) Application of these principles to the circumstances of the present case 70. The Court notes that it is undisputed that the criminal proceedings against the applicant amounted to an “interference” with the exercise of her right to freedom of expression.", "The Court also finds, and the parties agreed on this point, that the interference complained of was prescribed by law, namely Article 212 of the Criminal Code (see paragraph 33 above), and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention to protect “the reputation or rights of others”. Thus, the only point at issue is whether the interference was “necessary in a democratic society” to achieve that aim. 71. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention. 72.", "The applicant published a series of articles accusing A.C., rector of a public university at that time, of collaborating with the communist secret services in the past. The Court accepts that the past of a rector of a public university is an issue of public interest. Furthermore, it has already confirmed on numerous occasions that similar issues concerning the establishment of facts and expressing opinions about the historic involvement of public officials with institutions of the communist regime fall within the ambit of public debate in a democratic society (see Petrina v. Romania, no. 78060/01, § 43, 14 October 2008; see also, mutatis mutandis, Ungváry and Irodalom Kft v. Hungary, cited above, § 63). 73.", "The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG [GC], cited above, § 83). The Court takes note that the accusation was serious for Mr A.C. To call somebody a secret collaborator with the communist-era security services carries a negative assessment of his behaviour in the past and is surely an attack on his good name.", "The domestic authorities were therefore faced with the task of balancing two conflicting values, namely freedom of expression of the applicant on the one hand and Mr A.C.’s right to respect for his reputation on the other (see Axel Springer AG [GC], cited above, § 84). 74. It is noted in this connection that the domestic courts were aware of the weight and seriousness of the applicant’s allegation and stressed that in their judgments. They were of the view that the subject matter of the case imposed on journalists special obligations with a view to striking an appropriate balance between their right to freedom of expression and the need to respect individuals’ rights to good name, honour and reputation. In this respect, it is worth noting that the Warsaw District Court expressly made a reference to the Court’s case-law on Article 10 of the Convention on freedom of the press (see paragraph 27 above).", "The Court is satisfied that in this regard the domestic authorities examined the applicant’s case also in the light of the standards of Article 10 of the Convention (compare and contrast Sokołowski, cited above, § 46; Zakharov v. Russia, no. 14881/03, §§ 29 and 30, 5 October 2006; see, mutatis mutandis, Błaja News Sp. z o.o. v. Poland, no. 59545/10, § 65, 26 November 2013).", "75. The Court further observes that the courts examined the circumstances of the case in detail. The first-instance court first instituted proceedings against the applicant following a private bill of indictment against her brought by A.C., but subsequently decided to stay them because vetting proceedings concerning the latter were at that time pending before another court (see paragraph 16 above). It considered the outcome of these proceedings relevant for the examination of the case against applicant and wished to be able to proceed on the basis of the lustration court’s findings as to A.C.’s alleged involvement in the communist secret services. The Court cannot overlook, for the purposes of the examination of the present case, that the lustration court found his declaration that he had not been an informant truthful (see paragraph 17 above).", "76. Subsequently, when the defamation proceedings were resumed, the court had before it the IPN file concerning A.C (see paragraph 23 above). It is not for the Court to take a stand as to whether the IPN files were capable of providing decisive evidence as to whether a person had been an informant for the communist secret services. However, it is satisfied that the domestic courts based their conclusions on ample evidence. 77.", "The courts further examined whether the research done by the applicant before the publication of her allegations had been in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sources (Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 64‑65, 14 February 2008, and Kania and Kittel v. Poland, no. 35105/04, §§ 45‑46, 21 June 2011). The District Court noted that the applicant had contacted A.C. by telephone prior to the publication of the first article. However, it observed that on this occasion she had not referred to any evidence in her possession at that time.", "She had merely claimed to know that he had been an informant. 78. The Warsaw District Court further established that the applicant had not sought to meet A.C. in person before the publication of the first article in the series (see paragraph 21 above). 79. In the same vein, the domestic courts found, and it was not in dispute in the proceedings before the Court, that the applicant had obtained access to the IPN files on 9 May 2007 and had actually read A.C.’s files the following day, over a month after the first article had been published on 2 April 2007 (see paragraphs 9 and 25 above).", "It has not been argued, let alone shown, either before the domestic courts or in the proceedings before the Court, that the applicant had tried to have access to relevant documents stored by the IPN prior to the publication of the first article. 80. As to the basis on which the applicant advanced her allegations in the subsequent two articles, the Court notes that the national courts had negatively assessed conclusions the applicant had drawn from the material she had presented to the court during the domestic proceedings. In particular, the first-instance court emphasised that the IPN documents she had obtained access to in May 2007 did not provide, contrary to her assertions, a sound basis for the allegations contained in the articles. Quite to the contrary, the court observed, inter alia, that the documents noted A.C.’s unwillingness to become an informant (see paragraphs 23 and 24 above).", "81. To sum up, the applicant’s conviction was based essentially on the findings of fact to the effect that she had failed to comply with her journalistic obligations of diligence. In these circumstances, the domestic courts’ conclusion that the applicant had published the first article having failed to take steps that can reasonably be expected to provide some factual basis for her allegations is not open to criticism. 82. The Court concludes that the domestic authorities, when justifying the interference at issue in the present case, relied on grounds which were both relevant and sufficient.", "83. The Court further notes that in deciding on the penalty to be imposed on the applicant the Warsaw District Court carefully weighed the possibilities open to it under domestic law, declined to impose a custodial penalty, and determined the amount of the fine imposed on the applicant with regard to her income (see paragraph 28 above). It has not been argued, let alone shown, that the amounts the applicant was obliged to pay had a disproportionate impact on her financial situation. The Court is therefore satisfied that the penalty was moderate and reasonably proportionate to the damage to his reputation that the victim of the offence had suffered. 84.", "Having regard to the above, the Court is satisfied that the authorities struck a fair balance between the interests of the protection of the plaintiff’s reputation on the one hand and the applicant’s right to exercise her freedom of expression where issues of public interest are concerned on the other and that this assessment was done in conformity with the criteria laid down in the Court’s case-law (see paragraph 68 above). 85. Having regard to the circumstances of the case seen as a whole, the Court is of the view that the interference complained of may be regarded as “necessary in democratic society” within the meaning of paragraph 2 of Article 10 of the Convention. 86. There has accordingly been no violation of that provision.", "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 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás SajóRegistrarPresident" ]
[ "CASE OF LEE v. THE UNITED KINGDOM (Application no. 25289/94) JUDGMENT STRASBOURG 18 January 2001 This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of Lee v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrJ.-P. Costa,MrA. Pastor Ridruejo,MrG.", "Bonello,MrP. Kūris,MrR. Türmen,MrsF. Tulkens,MrsV. Strážnická,MrP.", "Lorenzen,MrM. Fischbach,MrV. Butkevych,MrJ. Casadevall,MrsH.S. Greve,MrA.B.", "Baka,MrsS. Botoucharova,MrM. Ugrekhelidze, judgesLord Justice Schiemann, ad hoc judge, and also of Mr M. de Salvia, Registrar, Having deliberated in private on 24 May and 29 November 2000, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”),[1] by the European Commission of Human Rights (“the Commission”) on 30 October 1999 and by the United Kingdom of Great Britain and Northern Ireland (“the Government”), on 10 December 1999 (Article 5 § 4 of Protocol No.", "11 and former Articles 47 and 48 of the Convention). 2. The case originated in an application (no. 25289/94) against the United Kingdom lodged with the Commission under former Article 25 of the Convention by a British citizen, Mr Thomas Lee (“the applicant”), on 4 May 1994. 3.", "The applicant alleged that planning and enforcement measures taken against him in respect of his occupation of his land in his caravan violated his right to respect for home, family and private life contrary to Article 8 of the Convention. He complained that these also disclosed an interference with the peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention and disclosed a denial of education to his grandchildren contrary to Article 2 of Protocol No. 1. He further complained that he was subject to discrimination as a gypsy contrary to Article 14 of the Convention.", "While he invoked Article 10 of the Convention before the Commission, he did not pursue this complaint in the proceedings before the Court. 4. The Commission declared the application admissible on 4 March 1998. In its report of 25 October 1999 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 8 of the Convention (18 votes to 8), that there had been no violation of Article 1 of Protocol No. 1 (20 votes to 6), that there had been no violation of Article 2 of Protocol No.", "1 (20 votes to 6), that there had been no violation of Article 10 of the Convention (unanimously) and that there had been no violation of Article 14 of the Convention (18 votes to 8). [2] 5. Before the Court the applicant, who had been granted legal aid, was represented by Mr Mark Tilbury, a solicitor practising in King’s Lynn. The United Kingdom Government were represented by their Agent, Mr Llewellyn of the Foreign and Commonwealth Office. 6.", "On 13 December 1999, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Lord Justice Schiemann to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 7.", "The applicant and the Government each filed a memorial. Third-party comments were also received from European Roma Rights Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3). 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 24 May 2000 (Rule 59 § 2). There appeared before the Court: (a) for the respondent GovernmentMr H. Llewellyn,Agent,Mr D. Pannick Q.C.,Mr D. Elvin Q.C.,Mr M. Shaw, Counsel,Mr D. Russell,Mr S. Marshall-Camm,Advisers; (b) for the applicantMr R. Drabble Q.C.,Mr T. Jones,Mr M. Hunt,Counsel,Mr M. Tilbury,Solicitor.", "The Court heard addresses by Mr Drabble and Mr Pannick. 9. On 29 November 2000, Mr Makarczyk, who was unable to take part in further consideration of the case, was replaced by Mr Bonello (Rules 24 § 5 (b) and 28). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10.", "The applicant and his wife are gypsies by birth. They were born and bred in Kent. They have a nomadic lifestyle and have travelled extensively around the south of England in pursuit of work and to attend traditional gypsy social gatherings. 11. Throughout the years, the applicant was prosecuted frequently for illegal encampment.", "Over a four year period he claimed to have been evicted from more than 40 sites. To rectify this situation, in 1991 he bought a plot of land which measures approximately 0.4 hectares. 12. The applicant’s land was situated on a hillside of the Stour Valley to the east of the village of Chartham. The surrounding land was mostly open agricultural land but in the valley bottom there was mineral working and industrial development.", "The land contained three caravans, which were occupied by the applicant, his wife, two children and grandchildren. It also had an area for grazing horses and contained a stable. The site was in an area designated within the relevant development plan as a Special Landscape Area where special planning policies applied. 13. The applicant’s grandchildren attended school regularly receiving an education that in the past they frequently had not had the opportunity to receive.", "14. The applicant and his family have mainly been employed in agricultural work all their lives. He bought the site with the intention that it would provide a settled home and also a living from market garden produce and horticulture. 15. On 20 November 1992, an enforcement notice was issued by Canterbury City Council (“the Council”), requiring the applicant to cease the use of the land for the stationing of residential caravans.", "He was given six months within which to remove the caravans. 16. In January 1993, the applicant lodged an appeal against the enforcement notice. An Inspector was appointed by the Secretary of State for the Environment to determine the appeal. 17.", "On 20 September 1993, the Inspector, in a decision letter, denied planning permission and dismissed the appeal. He stated inter alia: “6. From my inspection of the site and the surrounding area and from the written representations I consider that the main issues are whether the impact of the residential caravans on the surrounding area is acceptable having regard to relevant planning policies, and also, if the impact is not acceptable whether the stationing of residential caravans is nevertheless justified by the agricultural needs of the proposed enterprise or by the needs of the three gypsy families involved. 7. There are three approved development plans for the area: the 1990 Kent Structure Plan; the 1983 Kent Countryside Local Plan; and the 1982 Stour Valley Countryside Plan.", "Policy S6 of the Structure Plan imposes a general presumption against development of fresh land in the countryside although policy RS6 recognises that the needs of agriculture may constitute an exception. However even so policy RS1 requires that all development shall be appropriate in location and appearance while policies in all the plans provide that in such Special Landscape Areas as this conserving the landscape will normally have priority over other planning considerations. 8. The site is in a corner of an open field on the southern hillside of the Stour Valley and surrounded by agricultural land. In this position it is highly visible at various points along the Cockering Road below and from the A28 in the valley bottom.", "It is also visible from footpaths in the vicinity and particularly from one that runs along the back of the site. The group of three caravans within the fenced site is a most conspicuous and alien form of development in this exposed rural location and is in conflict with the character and appearance of its surroundings. An attempt has been made to screen the caravans on the hillside by planting evergreens but many have died. However neither screening nor painting the caravans, as offered, is likely to make the development less obtrusive in such an isolated and open situation, and there is no doubt in my mind that it seriously conflicts with the policies designed to conserve and enhance the countryside. ... 11.", "... In my opinion, and on the evidence submitted the proposed enterprise <market gardening and horticulture> even taking into account the further land available is not likely to support the three families who would be engaged in it so as to justify their living on the site. 12. As regards the agricultural need for living on the site, I am not satisfied that the type of horticulture outlined demands living on the site ... I do not doubt that the families wish to continue earning their living from agricultural pursuits but the offer to tie their occupation to agriculture ... does not overcome the lack of agricultural need to live on the site which might justify setting aside the strong amenity objection.", "... 13. In support of allowing the development as a gypsy caravan site it is stated that <the applicant> has been evicted from 40 sites over a 4 year period and was exasperated by the Council’s inability to provide suitable sites. He took the opportunity to acquire the present site to provide a permanent home and an income. This <he claims> is in line with the guidance in DOE Circular 28/77 which recognises that even in sensitive locations it may be necessary to accept the establishment of caravan sites or to refrain from enforcement actions until sites are available. 14.", "The Council recognise that, despite being a ‘designated area’ under the 1968 Act, there is a shortfall of some 22 pitches and further provision needs to be made. A number of sites are being evaluated and in addition the draft local plan contains a policy for permitting gypsies to establish sites on their own land providing it is suitable. The Council do not consider that the Department’s guidance implies that private sites should be allowed without regard to the consequences. 15. Having considered the evidence, I accept that there is a shortfall of pitches in the Canterbury area but I recognise too <the applicant’s> willingness, if not a preference, for providing a small site for the family group and I do not consider it unlikely that a less inappropriate place can be found.", "While therefore I accept that the loss of the present site would create a need for an alternative, in the circumstances of this case I find that the complete unsuitability of the present site outweighs that need. I have considered whether a temporary permission might be granted for this small group until the Council’s provision of other sites comes to fruition and I have taken account of <the applicant’s> willingness to accept a planning condition restricting the number of caravans on the site so as not to create a precedent for the use of adjoining land. However I can see no way of preventing it from being a precedent if other gypsy families sought to acquire plots of land nearby. ... I am satisfied that even a temporary planning permission could be a signal for the establishment of other sites which would have a very harmful effect on the landscape of this attractive valley.", "...” 18. The applicant then applied for permission to use the land for winter stationing of three caravans for residential purposes. 19. On 1 March 1994, after having requested the applicant to explain what change in material considerations had taken place, the Council declined to determine the above application in accordance with Section 70A of the Town and Country Planning Act 1990. The Council did not considerthat there were material differences between the planning application for winter stationing of caravans and the applicant’s earlier application.", "20. The applicant now lives under the threat of criminal prosecution and forcible eviction. 21. While the applicant had been on a number of occasions offered places on official sites, he refused primarily because the sites in question were in a very poor state. One site, at Broomfield was next to a rubbish tip and the other, at Vauxhall Road, was built on an old sewage bed and adjacent to an operational sewage works and with a steel works adjoining the southern boundary of the site, which operated 24 hours per day.", "The applicant stated that they were unfit for human habitation (photographs were attached to his application in support of his contention) and that the noise of the steelworks deprived inhabitants of the site of sleep. While the Government disputed before the Commission that the Broomfield site was unfit for habitation, referring to repairs being carried out when required due to the vandalism of occupants, the Government confirmed at the hearing before the Court that this site had now closed. The Government also provided the information that planning permission had been granted for the upgrading and extension of the site at Vauxhall Road and that a grant was made by the Secretary of State for this purpose. The original 16 pitches had now been refurbished, and two further pitches added, at a cost of GBP 495,000. The Council had served a Noise Abatement Notice on the steelworks with a view to improving the residential environment for the gypsy site and discussions were ongoing regarding the creation of a boundary between the two sites.", "22. The Government also stated that in 1998 in the Canterbury area there were two official sites comprising 30 pitches (with eight currently vacant) and in addition 28 caravans on authorised private sites and 14 caravans on unauthorised private sites. The July 1999 Department of the Environment figures showed however that the number of authorised private sites had dropped from 28 to 8, the number of public sites fell from 27 to 21, while the number of unauthorised encampments almost tripled from 14 to 38. 23. The applicant stated that planning permission had been given to a non-gypsy to station a caravan on the site adjacent to the applicant’s.", "Outline planning permission had also been given for a development of 600 residential units 600 yards from his site. The Government have provided information and documents concerning both developments. Temporary planning permission was granted for two years in August 1994 for a caravan on a site called Larkey Wood Farm. The purpose of this was to enable the owner to establish the viability of his pig unit and the permission limited to occupation by an agricultural worker. Permission was granted recently for a permanent dwelling of the site given the established agricultural need and the owner’s establishment of the viability of his pig farm.", "In the Inspector’s decision of 17 August 1994, he found that this site did not have as unfortunate effect on the landscape as the applicant’s, though it did detract from the openness of the countryside and the natural appearance of the landscape. The Government have also explained that in the 1990’s a hospital (St. Augustine’s), which was a large complex of buildings, closed down and it has been considered by the Council as suitable for residential development. The outline planning permission was granted to accommodate 600 houses and took into account the need to landscape the site. The applicant provided photographs of his own site and the Larkey Wood Farm site and the Government provided an aerial photograph identifying the locations of these developments relative to the applicant’s land. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. General planning law 24. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).", "25. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). 26. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State.", "It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). 27. If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).", "28. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. 29. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289).", "Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. 30.", "Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). B. The Caravan Sites Act 1968 31. Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as: “persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”.", "32. Section 6 of the 1968 Act provided that it should be the duty of local authorities: “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area”. 33. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 34.", "Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act). 35. The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). 36. In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of section 10.", "C. The Cripps Report 37. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”). 38.", "Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: “Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.” 39. The report made numerous recommendations for improving this situation. D. Circular 28/77 40.", "Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. 41. Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies’] applications for planning permission and site licences”.", "Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area. E. Circular 57/78 42. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone’s advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”. 43. In addition, approximately GBP 100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.", "F. The Criminal Justice and Public Order Act 1994 44. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. 45. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”.", "46. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 47. In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation.", "He commented that: “For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils... For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used.", "The culmination of the tensions underlying the history of non-compliance was the enactment of ...the Act of 1994...” G. Circular 1/94 48. New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above). Councils were told that: “In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para.", "20) However: “As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22). It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).", "H. Circular 18/94 49. Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments: “6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g.", "toilets, a skip for refuse and a supply of drinking water. 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9.", "The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 50. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children andthe housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.", "I. Gypsy sites policies in development plans 51. In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision.", "It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process. J. 1998 ACERT research into provision for private gypsy sites 52.", "The Advisory Council for the Education of Romany and Other Travellers (ACERT) which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in its 1998 report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers underthe 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected. 53. The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations).", "Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively. 54. The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since.", "Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable. K. Overall statistics concerning gypsy caravans 55.", "In January 2000, the Department of the Environment, Regions and Transport figures for caravans in England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites. L. Local authority duties to the homeless 56. Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997.", "Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation. III. RELEVANT INTERNATIONAL TEXTS A.", "The Framework Convention for the Protection of National Minorities 57. This Convention, opened for signature on 1 February 1995, provides inter alia: “Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.", "2. The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1.", "The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.” 58. The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998.", "It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28. 59. The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition.", "B. Other Council of Europe texts 60. Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies, as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia: “6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.", "7. Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.” Its recommendations included: “xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; ... xviii. further programmes should be set up in the member states to improve the housing situation, education... of those Gypsies who are living in less favourable circumstances. ...” 61.", "In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included: “... to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing and education. ... ... to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; ...” C. The European Union 62. On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time.” 63.", "Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations. D. The Organisation for Security and Co-operation in Europe (OSCE) 64. The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments - the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities - also concern protection of Roma and Sinti as minorities.", "65. On 7 April 2000, the High Commissioner’s Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report dealt with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma were nowsedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization: “It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp.", "98-99) 66. The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need: “... The effect is to place nomadic Roma in the position of breaking the law - in some countries, committing a crime - if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109) 67.", "The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found: “Under current law, Gypsies have three options for lawful camping: parking on public caravan sites - which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property...” (pp.", "112-113). 68. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated: “... This scheme allows wide play for the exercise of discretion - and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as ‘a daunting one laced with many opportunities for failure’.", "In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remainsthat there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates.", "Moreover, there are indications that the situation has deteriorated since 1994. ... In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114) 69. The report’s recommendations included the following: “...in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp.", "126 and 162) THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 of the CONVENTION 70. The applicant complained that the refusal of planning permission to station caravans on his land and the enforcement measures implemented in respect of his occupation of his land disclosed a violation of Article 8 of the Convention. “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.” 71. The Government disputed those allegations. The Commission by eighteen votes to eight found that there had been no violation of this provision. 72.", "The Court recalls that it has already examined complaints about the planning and enforcement measures imposed on a gypsy family who occupied their own land without planning permission in the case of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports 1996-IV, p. 1271). Both parties have referred extensively to the findings of the Court in that case, as well as the differing approach of the Commission. The Court considers that, while it is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Since the Convention is firstand foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, amongst other authorities, the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 14, § 35).", "A. As to the rights in issue under Article 8 of the Convention 73. The applicant submitted that measures threatening his occupation in caravans on his land affected not only his home, but also his private and family life as a gypsy with a traditional lifestyle of living in mobile homes which allow travelling. He refers to the consistent approach of the Commission in his own and similar cases (see, for example, the Buckley case, cited above, Comm. Rep. 11.1.95, § 64).", "74. The Government accepted that the applicant’s complaints concerned his right to respect for home and stated that it was unnecessary to consider whether the applicant’s right to respect for his private life and family life was also in issue (see the Buckley judgment, cited above, §§ 54-55). 75. The Court considers that the applicant’s occupation of his caravan is an integral part of his ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children.", "Measures which affect the applicant’s occupation of his caravans have therefore a wider impact than on the right to respect for home. They also affect his ability to maintain his identity as a gypsy and to lead his private and family life in accordance with that tradition. 76. The Court finds therefore that the applicant’s rights to respect for his private life, family life and home are in issue in the present case. B.", "Whether there was an “interference” with the applicant’s rights under Article 8 of the Convention? 77. The Government accepted that there had been “an interference by a public authority” with the applicant’s right to respect for his home disclosed by the refusal of planning permission to allow him to live in his caravans on his own land and the pursuit of enforcement measures against him. 78. The applicant contended that, in addition to these measures constituting an interference with his rights, the framework of legislation and planning policy and regulations disclosed a lack of respect for those rights as they effectively made it impossible for him to live securely as a gypsy – either he was forced off his land and would have to station his caravans unlawfully, at risk of being continually moved on or he would have to accept conventional housing or “forced assimilation”.", "79. The Court considers that it cannot examine legislation and policy in the abstract, its task rather being to examine the application of specific measures or policies to the facts of each individual case. There is no direct measure of “criminalisation” of a particular lifestyle as was the case in Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45), which concerned legislation rendering adult consensual homosexual relations a criminal offence. 80.", "Having regard to the facts of the present case, the Court finds that the decisions of the planning authorities refusing to allow the applicant to remain on his land in his caravans and the measures of enforcement taken in respect of that occupation constituted an interference with his right to respect for his private life, family life and home. It therefore examines below whether this interference was justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims. C. Whether the interference was “in accordance with the law”? 81. It was not contested by the applicant that the measures to which he was subjected were “in accordance with the law”.", "The Court finds no reason to reach a different conclusion. D. Whether the interference pursued a legitimate aim? 82. The Government submitted that the measures in question pursued the enforcement of planning controls which were in the interests of the economic well-being of the country and the preservation of the environment and public health. 83.", "The applicant accepted that the measures pursued the legitimate aim of protecting the “rights of others” in the sense of environmental protection. He did not accept that any other legitimate aim was concerned. 84. The Court notes that the Government have not put forward any detail concerning the aims allegedly pursued in this case and that they rely on a general assertion. It is also apparent that the reasons given for the interferences in the planning procedures in this case were expressed primarily in terms of environmental policy.", "In these circumstances, the Court finds that the measures pursued the legitimate aim of protecting the “rights of others” through preservation of the environment. It does not find it necessary to determine whether any other aims were involved. E. Whether the interference was “necessary in a democratic society”? 1. Arguments before the Court (a) The applicant 85.", "The applicant submitted that, in assessing the necessity of the measures in this case, the importance of what was at stake for him weighed very heavily in the balance, as it not only concerned the security of his home but also his right to live, with his family, the traditional gypsy lifestyle. The growing international consensus about the importance of providing legal protection to the rights of minorities, as illustrated, inter alia, by the Framework Convention for the Protection of Minorities emphasised that this was also of significance to the community as a whole as a fundamental value of a civilised democracy. In these circumstances, any margin of appreciation accorded to the domestic decision-making bodies should be narrower, rather than wider. 86. The applicant argued that the procedural safeguards in the decision-making process only gave limited recognition to those considerations in his case.", "Planning inspectors approached their decisions constrained by the laws and policies applying to development of land, which placed, for example, particular weight on the protection of Special Landscape Areas. The interest of gypsies in residing on their land was not seen as a useful or indispensable land-use feature and therefore automatically carried much less weight in the domestic balancing exercise. Thus, the “personal circumstances” of the gypsies could seldom outweigh the more general planning considerations. 87. The applicant also submitted that there must exist particularly compelling reasons to justify the seriousness of the interference disclosed by measures of eviction from his land, where there had not been shown to be an alternative site to which he could be reasonably expected to move.", "He pointed out that in his case he and his family had moved onto his land after being harassed and moved on over 40 times. This enabled his grandchildren to attend school. During the planning procedures, it was acknowledged that there were no official sites available in the Canterbury area and that there was a shortfall of sites notwithstanding designation of the area. Now he and his family lived on their land under the threat of further enforcement action, including physical eviction with still no secure alternative site to go to. The site at Broomfield Road had been closed and the site at Vauxhall Road was unfit for human habitation, in particular as it was next to a sewage works and a steel works which operated 24 hours a day.", "(b) The Government 88. The Government emphasised that, as recognised by the Court in the Buckley case (cited above, §§ 74-75), in the context of town and country planning, which involved the exercise of discretionary judgment in implementing policies in the interests of the community, national authorities were in a better position to evaluate local needs and conditions than an international court. It was not for the Court to substitute its view of what would be the best planning policy or the most appropriate measure in a particular case. 89. While the applicant was entitled to have his interests carefully considered by the national authorities and weighed in the balance as against the needs of planning control, an examination of the applicable system, and the facts of this case, showed that the procedural safeguards contained in national law as to the way in which planning judgments were made (an assessment by a qualified independent expert, an Inspector, followed by judicial review in the High Court) were such as to give due respect to his interests.", "The Government pointed out that local planning authorities were encouraged to adopt a sympathetic approach to any question of enforcement action under Circular 18/94 (see paragraphs 49-50 above) and that large numbers of caravans on unauthorised sites were tolerated (see the statistics cited at paragraph 55 above). However, gypsies could not claim the right to live wherever they liked in defiance of planning control, particularly when they were now seeking to live a settled existence indefinitely on their own land. 90. The Government further submitted that the Planning Inspector had found it likely that other sites would be available in the area and pointed out that it was open to the applicant to travel to other caravan sites outside that local authority area. They pointed out that the applicant took up residence on his land, which was in an Special Landscape Area, without obtaining, or even applying for the prior planning permission necessary to render that occupation lawful.", "When he did apply for planning permission, the applicant had the opportunity of presenting the arguments in his favour in proceedings conducted by an Inspector, who gave his personal circumstances careful consideration. However, the Inspector found that his occupation of his land was very harmful to the landscape of the attractive area. The applicant could not rely on Article 8 as giving his preference as to his place of residence to outweigh the general interest. Finally, it should be noted that the applicant has not been subject to any prosecutions. (c) Intervention by the European Roma Rights Centre 91.", "The European Roma Rights Centre drew to the attention of the Court the recently published “Report on the Situation of Roma and Sinti in the OSCE Area” prepared by the OSCE High Commissioner on National Minorities and other international texts and materials concerning the position of Roma. They submitted that there had emerged a growing consensus amongst international organisations about the need to take specific measures to address the position of Roma, inter alia, concerning accommodation and general living conditions. Articles 8 and 14 should be interpreted therefore in the light of the clear international consensus about the plight of the Roma and the need for urgent action. 2. The Court’s assessment (a) General principles 92.", "An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, amongst other authorities, the Lustig-Prean and Beckett v. the United Kingdom judgment of 27 September 1999, to be reported in Reports 1999-..., §§ 80-81). 93. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions (see the Dudgeon v. the United Kingdom judgment 22 October 1982, Series A no.", "45, p. 21, § 52; the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 22, § 55). 94. The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the Court is not well equipped to challenge. It can not visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on.", "Because Planning Inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the Court to weigh the arguments. Hence, as the Court observed in Buckley (loc. cit. p. 1292, § 75 in fine), “in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation.", "In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see the Buckley judgment, cited above, p. 1292-3, §§ 76-77). 95. The applicant urged the Court to take into account recent international developments, in particular the Framework Convention for the Protection of Minorities, in reducing the margin of appreciation accorded to States in light of the recognition of the problems of vulnerable groups, such as gypsies. The Court observes that there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see paragraphs 56-60 above, inparticular the Framework Convention for the Protection of Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community. 96.", "However, the Court is not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. The Framework Convention, for example, sets out general principles and goals but signatory states were unable to agree on means or implementation. This reinforces the Court’s view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection and the interests of a minority with possibly conflicting requirements, renders the Court’s role a strictly supervisory one. 97. Moreover, to accord to a gypsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention.", "98. Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases (loc. cit., pp. 1292-95, §§ 76, 80, 84).", "To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, § 31, the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49 and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31). 99.", "It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved. 100. The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8.", "This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States (see paragraphs 95-96 above). 101. It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right.", "While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision. 102. In sum, the issue for determination before the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom’s undertakings in international law, but the narrower one whether the particular circumstances of the case disclose a violation of the applicant’s, Mr Lee’s, right to respect for his home under Article 8 of the Convention. 103.", "In this connection, the legal and social context in which the impugned measure of expulsion was taken against the applicants is, however, a material factor. 104. Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection (see paragraph 83). When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move.", "Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community. 105. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available.", "The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation. 106. The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned – his or her family requirements and financial resources – and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment. (b) Application of the above principles 107.", "The seriousness of what is at stake for this applicant is demonstrated by the facts of this case. The applicant followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites. He took up residence on his own land by way of finding a long term and secure place to station his caravans. Planning permission was however refused for this and he has been required to leave. He remains on his land under threat of enforcement measures.", "It would appear that the applicant does not in fact wish to pursue an itinerant lifestyle. He has been resident on the site from about 1993 to the present day. Thus the present case is not concerned as such with traditional itinerant gypsy life styles. 108. It is evident that individuals affected by an enforcement notice have in principle, and this applicant had in practice, a full and fair opportunity to put before the Planning Inspector any material which he regarded as relevant to his argument and in particular his personal, financial and other circumstances, his views as to the suitability of alternative sites and the length of time needed to find a suitable alternative site.", "109. The Court recalls that the applicant moved onto his land in his caravans without obtaining the prior planning permission which he knew was necessary to render that occupation lawful. In accordance with the applicable procedures, the applicant’s appeal against the enforcement notice were conducted in a public enquiry by an Inspector, who was a qualified independent expert. The Inspector saw the site himself and considered the applicant’s representations. 110.", "The Inspector identified the main issue of the appeal as whether the impact of the caravans on the landscape was justified by the needs of the applicant’s family as gypsies. The site, located in an open situation, was obtrusive and seriously conflicted with the applicable policies of conserving and enhancing the countryside. He identified the risk that planning permission could lead to the establishment of other sites with a very harmful effect to an attractive valley in a Special Landscape Area. Conversely, it was not unlikely that a less inappropriate place could be found by the applicant for placing his caravans. Thus, he concluded that the complete unsuitability of the site outweighed the applicant’s needs.", "111. Consideration was given to the applicant’s arguments, both concerning the work that he had done on the site by painting and screening and concerning the difficulties of finding other sites in the area. However, the Inspector weighed those factors against the general interest of preserving the rural character of the countryside found that the latter prevailed. 112. It is clear from the report cited at paragraph 17 above that there were strong, environmental reasons for the refusal of planning permission and that the applicant’s interests have also been taken into account in the decision-making process.", "The Court notes that appeal to the High Court would have been available to the applicant if he had felt that the Ispector, or Secretary of State, had not taken into account a relevant consideration or had based the contested decision on irrelevant considerations. In the event however, the applicant declined to make such appeal. 113. The Court observes that during the planning procedures it was acknowledged that there was a shortfall of sites in the district. The Government have pointed out that official sites in the district and elsewhere in the county did exist offering alternative possibilities for stationing the applicant’s caravans and also that the applicant was free to seek sites outside the county.", "Notwithstanding that the statistics show that there is a shortfall of local authority sites available for gypsies in the country as a whole, it may be noted that many gypsy families still live an itinerant life without recourse to official sites and it cannot be doubted that vacancies on official sites arise periodically. 114. Moreover, given that there are many caravan sites with planning permission, whether suitable sites were available to the applicant during the long period of grace given to him was dependent upon what was required of a site to make it suitable. In this context, the cost of a site compared with the applicant’s assets, and its location compared with the applicant’s desires are clearly relevant. Since how much the applicant has by way of assets, what outgoings need to be met by him, what locational requirements are essentialfor him and why they are essential are factors exclusively within the knowledge of the applicant, it is for the applicant to adduce evidence on these matters.", "He has not placed before the Court any information as to his financial situation, or as to the qualities a site must have before it will be locationally suitable for him, nor does the Court have any information as to the efforts he has made to find alternative sites. The Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Special Landscape Area. As stated in the Buckley case, Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest (judgment cited above, p. 1294, § 81). If the applicant’s problem arises through lack of money, then he is in the same unfortunate position as many others who are not able to afford to continue to reside on sites or in houses attractive to them. 115.", "In the circumstances, the Court considers that proper regard was had to the applicant’s predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting his interests under Article 8 and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of his case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant’s rights. 116. The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every gypsy family has available for its use accommodation appropriate to its needs.", "Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued. (c) Conclusion 117. In conclusion, there has been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 of Protocol no.", "1 to THE CONVENTION 118. The applicant claims that he has been denied the right to live peacefully on his land and has therefore suffered a breach of the right to peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 119.", "The applicant argues that notwithstanding the admittedly broad discretion left to national planning decision-makers a fair balance has not been struck between his interests and those of the general community. He submits that the fact that he took up residence on his land without prior permission is irrelevant and that the findings of the Planning Inspector concerning the impact on visual amenity of his caravans are not so significant if taken in context of the policy framework governing their decisions. If however the Court finds a violation of Article 8, he accepts that no separate issue arises under this provision. 120. The Government, adopting the views of the majority of the Commission, submitted that a fair balance had been struck between the individual and general interest, in particular having regard to the fact that the applicant occupied his land in contravention of planning law and to the findings of the Planning Inspector concerning the detrimental impact of his occupation.", "121. For the same reasons given under Article 8 of the Convention, the Court finds that any interference with the applicant’s peaceful enjoyment of his property was proportionate and struck a fair balance in compliance with the requirements of Article 1 of Protocol No. 1 of the Convention. There has, accordingly been no breach of this provision. III.", "Alleged violation of Article 2 of protocol no. 1 122. The applicant complains that the measures taken against him violated Article 2 of Protocol No. 1 which provides as relevant: “No person shall be denied the right to education. ...” 123.", "The applicant referred, before the Commission, to the risk posed to his grandchildren, currently receiving a proper education, by the refusal of permission for him and his family to remain on his own land. This threatened him with the prospect of having again to move on from place to place. He placed great importance on the stability of his grandchildren’s education from his own experience of being illiterate. 124. The Government argued that there was no right under the above provision for children to be educated at any particular school and that in any case there was no evidence that the enforcement measures had had the effect of preventing the applicant’s grandchildren from going to school.", "125. The Court notes that the applicant’s grandchildren have been attending school near their home on the applicant’s land. It finds that the applicant has failed to substantiate his complaints that his grandchildren have effectively been denied the right to education as a result of the planning measures complained of. There has, accordingly, been no violation of Article 2 of Protocol No. 1 to the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 Of THE CONVENTION 126. The applicant complained that he had been discriminated against on the basis of his status as a gypsy, contrary to Article 14 which provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 127. The applicant submitted that the legal system’s failure to accommodate his traditional way of life, by treating gypsies as if they were the same as members of the majority population, or disadvantaging them relative to members of the general population, amounted to discrimination in the enjoyment of his rights under the Convention based on his status as a member of an ethnic minority. For example, gypsies alone were singled out for special treatment by the policy which declared that gypsies sites are inappropriate in certain areas, and unlike house dwellers, they did not benefit from a systematic assessment of and provision for their needs.", "In his own case, the grant of planning permission on nearby sites for a caravan used for agriculture and for a large residential development demonstrated that preservation of landscape as a priority concern, and the concern with visual amenity, was applied differentially between different types of applicants for planning permission, to the detriment of gypsy applicants. Further, the application to gypsies of general laws and policies failed to accommodate their particular needs arising from their tradition of living andtravelling in caravans. He referred, inter alia, to the Framework Convention on Minorities, as supporting an obligation on the United Kingdom to adopt measures to ensure the full and effective equality of gypsies. 128. The Government, referring to the Commission’s majority opinion, found that any difference in treatment pursued legitimate aims, was proportionate to those aims and had in the circumstances reasonable and objective justification.", "No discrimination was disclosed by the planning permissions granted to two sites nearby as these developments were different in character, scenic impact and purpose from the applicant’s. 129. Having regard to its findings above under Article 8 of the Convention that any interference with the applicant’s rights was proportionate to the legitimate aim of preservation of the environment, the Court concludes that there has been no discrimination contrary to Article 14 of the Convention. While discrimination may arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v. Greece judgment of 6 April 2000, to be reported in Reports 2000-..., § 44), the Court does not find, in the circumstances of this case, any lack of objective and reasonable justification for the measures taken against this applicant. 130.", "Accordingly there has been no violation of Article 14 of the Convention. FOR THESE REASONS, THE COURT 1. Holds by ten votes to seven that there has been no violation of Article 8 of the Convention; 2. Holds unanimously that there has been no violation of Article 1 of Protocol No. 1 to the Convention; 3.", "Holds unanimously that there has been no violation of Article 2 of Protocol No. 1 to the Convention; 4. Holds unanimously that there has been no violation of Article 14 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 January 2001. Luzius WildhaberPresidentMichele de SalviaRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) the joint dissenting opinion of Mr Pastor Ridruejo, Mr Bonello, Mrs Tulkens, Mrs Strážnická, Mr Lorenzen, Mr Fischbach and Mr Casadevall; (b) the separate opinion of Mr Bonello.", "L.W.M. de S. JOINT DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO, BONELLO, TULKENS, STRÁŽNICKÁ, LORENZEN, FISCHBACH AND CASADEVALL 1. We regret that we are unable to share the opinion of the majority that there has been no violation of Article 8 in this case. We refer to our joint dissenting opinion in the case of Chapman v. the United Kingdom (no. 27238, judgment of 18 January 2001), the leading case of the five applications brought before our Court concerning the problems experienced by gypsies in the United Kingdom.", "2. Identical considerations arise in this application. The applicant and his family followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites and being frequently moved on by police and local authority officials. Due to considerations of security and the education of his grandchildren, the applicant took the step of buying land on which to station his caravans. Planning permission was however refused for this and they were required to leave.", "He and his family remain on their land subject to the threat of further enforcement measures. His situation is insecure and vulnerable. During the planning procedures it was acknowledged that there was a shortfall of official sites in the area. No available alternative site was identified where the applicant to go either in the district or in the county as a whole. The Government referred to the Inspector’s opinion that it was not unlikely that other sites might be available in the area.", "While the applicant was subsequently offered places on two official sites, he has submitted that these were unfit for habitation. It appears that the Broomfield site, next to a rubbish tip, has since been closed down. The Vauxhall site, next to a sewage works and a steelworks operating 24 hours a day, has only recently been refurbished. The applicant’s allegations that the level of noise was such as to interfere seriously with the sleep of site residents were substantiated by the fact that the Council has issued a Noise Abatement Notice against the steelworks. The Government also said that the applicant was free to seek sites outside the county.", "It is apparent however that, notwithstanding the statistics relied on by the Government (see paragraph 55), there is still a significant shortfall of official, lawful sites available for gypsies in the country as a whole and that it cannot be taken for granted that vacancies exist or are available elsewhere. 3. Consequently, the measures taken to evict the applicant from his home on his own land, in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to him, were, in our view, disproportionate and disclosed a violation of Article 8 of the Convention. 4. We voted for non-violation of Article 1 of Protocol No.", "1 and Article 14 as, in light of our firm conviction that Article 8 had been violated in the circumstances of this case, no separate issues remained to be examined. SEPARATE OPINION OF JUDGE BONELLO I refer to the terms of my separate opinion in the Chapman v. the United Kingdom judgment of this date. [1]Notes by the Registry . Protocol No. 11 came into force on 1 November 1998.", "[2]. The full text of the Commission’s opinion and of the separate opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry." ]
[ "FOURTH SECTION CASE OF JEANNEE v. AUSTRIA (Application no. 56672/12) JUDGMENT STRASBOURG 11 April 2017 This judgment is final but it may be subject to editorial revision. In the case of Jeannée v. Austria, 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 Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 21 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "56672/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Wolfgang Jeannée, on 22 August 2012. He was represented before the Court by Ms M. Iro, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.", "On 9 December 2015 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS 4. The applicant was born in 1939 and lives in Vienna. He is a former lawyer who was admitted to the bar in 1969. 5.", "On 26 January 1999 the applicant renounced his right to practise as a lawyer because he had, as a result of his gambling addiction, committed criminal offences. On 28 June 1999 the applicant was convicted of aggravated fraud and embezzlement and sentenced to seven and a half years’ imprisonment. I. THE FIRST ROUND OF THE PROCEEDINGS 6. On 4 November 1999 the applicant applied to the Committee of the Vienna Bar Association (Ausschuss der Rechtsanwaltskammer; hereinafter, “the Committee”) for an invalidity pension.", "He argued that due to his gambling addiction – a recognised mental illness – he was no longer capable of practising as a lawyer. 7. On 7 March 2001 the applicant requested the Committee to inform him why it had still not decided on his application, despite his repeated requests. On 22 June 2001 the applicant was interviewed by a medical expert, who submitted his report on 20 July 2001. 8.", "On 5 February 2002 the competent division of the Committee (hereinafter, “the Committee’s division”) partly rejected as being lodged out of time and partly dismissed on the merits the applicant’s application for an invalidity pension. 9. On 8 March 2002 the applicant filed an objection (Vorstellung) against that decision. On 30 April 2002 the Plenary of the Committee (hereinafter, “the Plenary”) dismissed the objection. 10.", "On 17 June 2002 the applicant complained to the Administrative Court about the Plenary’s decision. On 20 October 2005 the Administrative Court quashed the Plenary’s decision as unlawful. II. THE SECOND ROUND OF THE PROCEEDINGS 11. On 14 June 2007, under Article 132 of the Federal Constitution (Bundes-Verfassungsgesetz), the applicant complained to the Administrative Court about the Plenary’s failure to decide (Säumnisbeschwerde).", "The applicant claimed that he had submitted a privately commissioned expert report on 30 March 2006 and requested a decision, but that the Plenary still had not taken any procedural steps. 12. On 4 July 2007 the Administrative Court requested the Plenary, within three months, either to issue a decision or explain why it had not yet done so. On 13 October 2007 an expert appointed by the Plenary submitted a report. On 16 October 2007 the Administrative Court, at the Plenary’s request, extended the time-limit for a decision until 20 January 2008.", "13. On 18 January 2008 the applicant requested the Administrative Court to decide on the merits, claiming that the Plenary still had not issued a decision. In addition, it had appointed another expert only at the end of the extended time-limit. Subsequently, the Administrative Court was informed by the head of the Bar Association that the expert opinion had arrived but that it required supplementation, and that a decision would be issued within one month. On 25 January 2008 the expert submitted his report and on 11 February 2008 he submitted a supplementary report.", "14. On 8 April 2008 the Committee’s division dismissed the applicant’s application for an invalidity pension. Consequently, on 26 June 2008 the Administrative Court closed the proceedings regarding the applicant’s complaint of 14 June 2007 about the Plenary’s failure to decide (see paragraph 11 above), and awarded costs to the applicant. 15. On 21 April 2008 the applicant filed an objection against the Committee’s division’s decision of 8 April 2008.", "On 15 July 2008 the Plenary granted the objection and referred the case back to the Committee’s division. 16. On 20 October 2008 the applicant complained to the Administrative Court about the Plenary’s decision. On 17 December 2009 the Administrative Court quashed the Plenary’s decision, holding that the Committee’s division had not been competent to issue its decision of 8 April 2008 (see paragraph 14 above), as the case had been pending before the Plenary after the Administrative Court had quashed the latter’s decision of 30 April 2002 (see paragraph 10 above). Therefore, the Plenary should have quashed the Committee’s division’s decision of 8 April 2008 and decided on the merits itself.", "III. THE THIRD ROUND OF THE PROCEEDINGS 17. On 15 July 2010, under Article 132 of the Federal Constitution, the applicant complained to the Administrative Court about the Plenary’s failure to decide. Two days earlier, on 13 July 2010, in a decision received by the applicant on 20 July 2010, the Plenary quashed the Committee’s division’s decision of 8 April 2008 (see paragraph 14 above) and dismissed the applicant’s objection against the Committee’s division’s decision of 5 February 2002 (see paragraph 9 above), confirming that the applicant was not entitled to an invalidity pension. Consequently, on 22 February 2012 the Administrative Court closed the proceedings regarding the applicant’s complaint of 15 July 2010 about the Plenary’s failure to decide, and awarded costs to the applicant.", "18. On 24 August 2010 the applicant complained to the Administrative Court about the Plenary’s decision of 13 July 2010. On 22 February 2012 the Administrative Court dismissed the complaint as unfounded. 19. That decision was served on the applicant on 5 March 2012.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. 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...” 21. The period to be taken into consideration began on 5 February 2002, when the Committee’s division partly rejected and partly dismissed the applicant’s application for an invalidity pension (see paragraph 8 above; see, mutatis mutandis, König v. Germany, 28 June 1978, § 98, Series A no. 27; Morscher v. Austria, no.", "54039/00, § 38, 5 February 2004; and Gassner v. Austria, no. 38314/06, § 35, 11 December 2012), and ended on 5 March 2012, when the Administrative Court’s decision of 22 February 2012 was served on the applicant (see paragraphs 18 and 19 above). It thus lasted ten years and one month for three levels of jurisdiction, during which the case was remitted to the lower instances several times. 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 23. The applicant submitted that the duration of the proceedings had been excessive.", "In particular, he pointed out that he had been 73 years old when the final decision was issued by the Administrative Court, and that his subsistence had depended on the outcome of the proceedings relating to his invalidity pension. 24. The Government submitted that the proceedings had been complex, as several expert opinions concerning the applicant’s ability to practise as a lawyer had to be obtained. 25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 26. The Court finds that the case was not particularly complex and that there were no delays which could be attributed to the applicant. Indeed, the Court notes that the applicant took a number of steps to accelerate the proceedings, including two complaints to the Administrative Court about the Plenary’s failure to decide (see paragraphs 11 and 17 above) and informal requests to the Plenary and the Administrative Court (see paragraphs 11 and 13 above). 27.", "As regards the conduct of the authorities, the Court observes that several periods of inactivity occurred during the proceedings. In particular, the Court notes that the Plenary twice failed to decide within the statutory time-limit (see paragraphs 11, 13 and 17 above). Moreover, the case was pending before the Administrative Court for more than three years and four months during the first round of the proceedings (see paragraph 10 above). These delays were solely attributable to the authorities. Finally, the Court observes that the present case concerns the applicant’s request for an invalidity pension, which calls, as a matter of principle, for a swift termination of the proceedings (see, mutatis mutandis, Otto v. Austria, no.", "12702/08, § 22, 22 October 2009). 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, among other authorities, Riepl v. Austria, no. 37040/02, §§ 39-42, 3 February 2005; Strobel v. Austria, no. 25929/05, §§ 27-28, 4 June 2009; Otto v. Austria, cited above, §§ 23-25; and Hackel v. Austria, no.", "43463/09, §§ 18-21, 21 June 2016). 29. 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 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 31. The applicant claimed 24,000 euros (EUR) in respect of non‑pecuniary damage. 32.", "The Government contested this claim. 33. The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards him EUR 10,400 under that head. B.", "Costs and expenses 34. The applicant also claimed EUR 12,120 for the costs and expenses incurred before the domestic courts and the Court. 35. The Government contested these claims. 36.", "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. The Court observes that the documents at its disposal indicate that those costs claimed by the applicant which were aimed at preventing or putting right the violation of the “reasonable time” requirement have already been reimbursed by the domestic courts (see paragraphs 14 and 17 above). The remainder of the costs incurred in the domestic proceedings were not related to the violation of Article 6 § 1 of the Convention. Therefore, the Court rejects the claim for costs and expenses concerning the domestic proceedings. In turn, it considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "C. Default interest 37. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 10,400 (ten thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiVincent A. De Gaetano Deputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF MARTZAKLIS AND OTHERS v. GREECE (Application no. 20378/13) JUDGMENT (Extract) STRASBOURG 9 July 2015 FINAL 09/10/2015 This judgment has 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 Martzaklis and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20378/13) 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 thirteen Greek nationals (whose names are appended) (“the applicants”), on 19 March 2013. 2. The applicants were represented by Mrs E.-L. Koutra and Mr R. Milonova, lawyers practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s deputy, Mr K. Georghiadis, member of the State Legal Council. 3.", "The applicants complained, in particular, of a violation of Article 3, taken alone or in conjunction with Articles 13 and 14 of the Convention. 4. On 8 April 2014 the complaints concerning Articles 3, 13 and 14 were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants are HIV-positive, with a minimum degree of disability of 67%. They are, or were, detained in Aghios Pavlos Hospital (psychiatric section) at Korydallos Prison. A. The applicants’ prison history 6. Andreas Martzaklis: imprisoned on 7 May 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court, a decision given by the Indictments Division of the Khalkida Criminal Court in 2010 ordering the execution of a sentence passed by the Athens Criminal Court of Appeal which had been stayed, and a judgment delivered by the Athens Court of Appeal sentencing him to four years’ imprisonment.", "Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 8 May 2013 but rearrested the same day and placed in preventive detention. 7. Christos Sarris: provisionally detained from 5 December 2011 to 14 December 2012, and detained by judgment of 14 December 2012 sentencing him to 6 years’ imprisonment and then by judgment of 19 March 2014 sentencing him to 6 years and 4 months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court.", "Released on licence on 9 May 2014 pursuant to section 19 of Act No. 4242/2014. 8. Christos Efstathiou: imprisoned on 14 February 2011. Detained pursuant to a decision given by the Indictments Division of the Khalkida Criminal Court on 22 December 2008, ordering the execution of the remainder of a sentence with suspensive effect, and pursuant to a judgment delivered by Athens Criminal Court, which merged the sentences into a total of 25 months.", "Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 June 2014 pursuant to Article 105 of the Criminal Code. 9. Efthymios Karatzoglou: imprisoned on 18 July 2011. Detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appel on 12 April 2013 sentencing him to two years and eight months’ imprisonment.", "Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 15 May 2013 pursuant to section 1 of Act No. 4043/2012. 10. Achilleas Papadiotis: imprisoned on 17 February 2011.", "Detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 10 June 2013 sentencing him to 10 years and 4 months’ imprisonment (starting date for serving the sentence: 8 December 2012). Detained as a convicted prisoner at the time of the application to the Court. Transferred to Patras Prison on 6 October 2014. 11. Dimitrios Nikolopoulos: imprisoned on 20 August 2012 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 9 February 2012 sentencing him to 10 years’ imprisonment, and a judgment delivered by the Athens Criminal Court on 1 December 2010 sentencing him to three months’ imprisonment.", "Detained as a convicted prisoner at the time of the application to the Court. Placed in Aghios Pavlos Hospital. 12. Spyridon Petrenitis: detained since 18 April 2012 pursuant to a judgment delivered by the Larissa Court of Appeal on 1 April 2013 sentencing him to two years’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court.", "Released on licence on 23 May 2013 under section 1 of Act No. 4043/2012. 13. Chrysafis Chatzikos: imprisoned on 13 July 2012 and detained ever since under the following decisions: 17 March 2010 judgment of the Athens Criminal Court sentencing him to ten months imprisonment; 23 February 2012 judgment of the Athens Criminal Court sentencing him to seven months’ imprisonment; 24 February 2012 judgment of the Athens Criminal Court sentencing him to ten months’ imprisonment; 8 June 2012 decision of the Indictments Division of the Chios Criminal Court ordering the execution of the remainder of a sentence with suspensive effect which had been passed by the Athens Criminal Court on 31 August 2011; and 5 April 2013 judgment of the Athens Criminal Court of Appeal sentencing him to 18 years’ imprisonment (in provisional detention from 16 August 2012 to 5 April 2013). 14.", "Christos Dorizas: imprisoned on 21 September 2012 and detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appeal on 11 November 2011, sentencing him to ten years’ imprisonment, followed by a judgment delivered by the same court on 14 December 2012 sentencing him to fifteen months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court and constantly since then. 15. Panagiotis Kormalis: imprisoned on 25 July 2012 and detained pursuant to a judgment delivered by the Crete Criminal Court of Appeal on 10 June 2013 sentencing him to five years and three months’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court.", "Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. His release warrant mentioned that he had contracted AIDS. 16. Aimilianos Chamitoglou: imprisoned on 5 April 2012 and detained: first of all, under a provisional detention order of 1 October 2013 (on charges of armed robbery); and secondly, pursuant to a judgment delivered by the Athens Court of Appeal on 25 February 2014 sentencing him to six years’ imprisonment (beginning on 27 March 2012).", "On 10 February 2014 the Athens Criminal Court of Appeal acquitted him of the armed robbery charge. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. 17. Antonios Poulopoulos: imprisoned on 19 August 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 20 June 2012 sentencing him to six years’ imprisonment.", "Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 13 September 2013 under Article 105 of the Penal Code. 18. Nikolaos Drosakis: imprisoned on 24 April 2012. Detained pursuant to a decision given by the Indictments Division of the Nafplio Criminal Court on 17 October 2012, and to the judgments of the Nafplio Criminal Court of Appeal and the Athens Criminal Court of Appeal of February and 24 April 2013 respectively, sentencing him to various prison terms.", "Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 March 2014 under section 1 of Act No. 4043/2012. Has since returned to prison. 19.", "According to the information supplied by the applicants who had been convicted under court judgments, which information was not disputed by the Government, the courts had not granted suspensive effect to their appeals (see Article 497 § 4 of the Code of Criminal Procedure). B. Conditions of detention at the Aghios Pavlos Hospital in Korydallos Prison 20. In a petition transmitted on 5 October 2012 under Article 572 of the Code of Criminal Procedure to the supervising public prosecutor responsible for Korydallos Prison, forty-five HIV-positive persons detained in the Aghios Pavlos Hospital, including the applicants, complained of their conditions of detention on the second floor of that hospital. They drew attention to the overcrowded premises, the uncontrolled admission of new patients, and the fact that they were held with other detainees suffering from cancer, asthma, hepatitis, venereal diseases, bronchitis, scabies, psoriasis and even tuberculosis, which diseases necessitated confinement to individual cells because several of them were transmissible.", "A small quantity of cream had been distributed to some of the HIV-positive detainees who were also affected with scabies. They had been advised to change their sheets and underwear every day and to wash them at high temperatures, even though the washing machine was out of order. When they had gone to fetch their medication the nurses had told them not to touch the bars through which they handed over the medicines in order to prevent the risk of infection. The administrative and medical staff had not given the detainees any official information in order to minimise the seriousness of the epidemic. 21.", "On 12 October 2012 the supervising public prosecutor had informed the detainees that “only 15 persons” were suffering from scabies. Relying on Article 6 of the Prison Code the HIV-positive detainees, including the applicants, had also complained to the Prison Hospital Board, but had received no reply. 22. A delegation of HIV-positive detainees had been received by the supervising public prosecutor to draw attention to the constantly increasing numbers of persons detained in the Aghios Pavlos Hospital and the intolerable conditions of detention. 23.", "The applicants submitted that the cells were so overcrowded that the personal space available for each detainee was less than 2 m², including beds and sanitary facilities. 24. The bathrooms fell short of minimum hygiene standards and cleaning in the premises was left to the discretion of the few HIV-positive persons in receipt of an allowance enabling them to purchase cleaning products. 25. The food was so poor in nutritional value that HIV-positive detainees risked developing AIDS owing to physical debilitation.", "26. The premises were under-heated, and detainees were exposed to low temperatures, particularly at night. 27. Nor had the problem of smoking been resolved. Several detainees smoked in the communal areas, the cells and the dormitories, and the non-smokers, especially those with respiratory problems, became passive smokers.", "28. The hospital staff did not include any infectious disease specialists, which placed HIV-positive detainees at risk because they were diagnosed by non-specialists. 29. During the distribution of medicines the nurse, wearing gloves, left the boxes on the floor outside the cell bars, and the HIV-positive persons had to stretch through the bars to retrieve them, avoiding touching the others, as recommended by the nurse. 30.", "The applicants also complained about the fact that diagnoses were conducted automatically and that the doctors always prescribed the same medicines without individually examining each patient. Any requisite transfers to outside hospitals were always carried out after long delays. Distribution of medication prescribed for some of the applicants was often interrupted without explanation for periods of between one week and one month. Other applicants had not yet begun their treatment, which delay the doctors explained by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”. 31.", "The applicants also complained of a lack of access to the outside world, news programmes and even use of the telephone, and the fact that the detainees were not held separately from the convicted prisoners. 32. Lastly, the applicants stated that a video on conditions of detention had been leaked in November 2014 and had induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way. ... THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 47. The applicants complained of their conditions of detention at the Aghios Savvas Hospital in Korydallos Prison, their “ghettoisation” in a separate wing of that hospital, and the failure of the authorities to consider whether those conditions were compatible with their state of health. They alleged a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention. Those provides read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in (this) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” ... B. Merits 60.", "The Government accepted that during the period from September to December 2011 there had been a shortage of medication for HIV-positive patients in the Korydallos Prison Hospital owing, on the one hand, to the increased number of such detainees and on the other, to insufficient funding for the purchase of such highly expensive medication. However, that issue had been resolved at the beginning of 2012. Follow-up treatment was provided for HIV-positive detainees at regular intervals, patients requiring hospital treatment were transferred to public hospitals, and biological tests on HIV-positive persons were sent to the relevant specialised laboratories. 61. The Government rejected the applicants’ use of the word “ghettoisation”, and explained that the HIV-positive detainees were accommodated on the second floor or the Aghios Pavlos Hospital because of the need to treat and provide for them, to protect them from infectious diseases, to provide them with quality meals, and to ensure that they had longer exercise periods and access to their own separate kitchens and washrooms.", "62. The applicants relied on the findings of the recent report by the Committee for the Prevention of Torture and Inhuman and Degrading Punishment or Treatment of 5 July 2013, which concerned the general conditions of detention in Korydallos Prison and other prisons, particularly as regards overcrowding and the segregation of detainees carrying the HIV virus. In particular connection with the conditions prevailing in the Aghios Pavlos Hospital at Korydallos, they submitted that the Greek press had published many articles on the situation in that hospital, and that the media coverage had extended beyond the national borders. Representatives of several political parties which had paid numerous visits to the hospital had described the conditions they had witnessed as “shocking”. Even the hospital staff had publicly stated that the conditions were problematical.", "A video on the conditions of detention had been leaked in November 2014 and induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way. 63. The applicants presented several recent press articles from 2013 and 2014 reporting on the worsening living conditions in the hospital, particularly the increasing numbers of HIV-positive detainees (128 out of a total of 209) and renewed delays and interruptions in the provision of treatment. 64. The Court reiterates its case-law to the effect that Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital so that he can have a particular kind of medical treatment.", "Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudla v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). 65. The Court also reiterates that the national authorities must ensure that the diagnoses and care provided in prisons, including prison hospitals, are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation (see Pitalev v. Russia, no. 34393/03, § 54, 30 July 2009).", "The Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). 66. Lastly, the Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities.", "Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection. What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of. The burden of proof is then shifted to the Government to provide explanations and supporting documents (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 132, 14 March 2013). 67.", "In the present case, the Court notes that it transpires from the applicants’ allegations that they are held in dormitories which are so overcrowded that the personal space available for each detainee is less than 2 m², including beds and sanitary facilities. The bathrooms fall short of minimum hygiene standards and cleaning in the premises is left to the discretion of a few detainees. The food is so poor in nutritional value that HIV-positive detainees risk developing AIDS through physical debilitation. The premises are under-heated and the detainees are exposed to low temperatures, particularly at night. 68.", "The applicants stated that diagnoses are conducted automatically and that the doctors always prescribe the same medicines without individually examining each patient. The staff hospital does not include any infectious disease specialists, which places HIV-positive detainees at risk because they are diagnosed by non-specialists. Any requisite transfers to outside hospitals are always carried out after long delays. Distribution of medication prescribed for some of the applicants is often interrupted without explanation for periods of between one week and one month. Other applicants have not yet begun their treatment, which delay the doctors explain by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”.", "69. The Court also notes that the Government have not really rebutted the applicants’ specific allegations, confining themselves to a few generalities concerning the Aghios Pavlos Hospital in Korydallos Prison. 70. The Court would not question the prison authorities’ initial intention to transfer such HIV-positive detainees as the applicants to the Prison Hospital in order to provide them with greater comfort and regular follow-up treatment. It takes note of the Government’s arguments to the effect that the applicants’ situation is not akin to “ghettoisation” because their placement in the psychiatric hospital had been justified by the need to improve their treatment, to protect them against infectious diseases, to ensure better nutrition, to enable them to exercise for longer periods and to give them access to their own separate kitchens and washing facilities.", "71. Therefore, any differential treatment implemented had pursued a “legitimate aim”, namely to provide them with better conditions of detention than were available to ordinary detainees. Nevertheless, a difference in treatment lacks objective and reasonable justification if, additionally, there is no “reasonable relation of proportionality” between the means used and the aim pursued. If an HIV-positive detainee were to be kept separate from other detainees, he would have to be transferred to premises which were tailored to his medical needs and well-being. 72.", "In that regard, the Court notes from the outset that the applicants were simply HIV-positive and had not developed AIDS, and, as such, there had been no need to isolate them in order to prevent the spread of a disease or the contamination of other detainees. Furthermore, the Court attaches great importance to the findings of the Ombudsman and the observations of the Justice Minister and the Prosecutor with the Court of Cassation, as well as those of the Parliamentary Assembly of the Council of Europe and the CPT .... These findings show that the authorities’ good intentions were doomed to failure in view of the situation prevailing in the psychiatric department of the Prison Hospital. In his report of 26 October 2012 the Ombudsman noted the irregular intervals at which the applicants received their treatment and the difficulty of treating them in a place where the risk of transmission of infectious diseases was very high. In a press release of 6 March 2014 the Ombudsman pointed out that the infrastructures were old and completely inappropriate, that there were insufficient medical staff and that the concentration of HIV-positive persons in one wing had created the conditions for “ghettoisation and stigmatisation” .... For its part, the CPT stressed that the fact that detainees were HIV-positive was not a valid public health reason for isolating them.", "73. In March 2014 the Parliamentary Assembly of the Council of Europe noted that the hospital, which had been designed for 60 patients, housed 200 detainees, most of whom were HIV-positive or suffered from infectious diseases such as tuberculosis and hepatitis, and that in such conditions it was impossible to provide the detainees with appropriate healthcare .... 74. In January 2014, according to the applicants’ allegations based on press articles which had been included in the case file, undisputed by the Government, the number of detainees in the Aghios Pavlos Hospital totalled 209 persons, 128 of whom carried the HIV virus. The articles once again noted interruptions and delays in the administration of medication. 75.", "Under those conditions, the Court deems proven the poor material and health conditions at the Aghios Pavlos Hospital, as well as the irregularities in the administration of appropriate treatment. It holds that the applicants were – and some of them possibly still are – exposed to physical and mental suffering that went beyond the suffering inherent in imprisonment. It therefore finds that they sustained inhuman and degrading treatment and that their segregation had no objective and reasonable justification because it was not necessitated by the circumstances. There has accordingly been a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention. ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 2.", "Holds that there has been a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention; ... Done in French, and notified in writing on 9 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle BerroRegistrarPresident" ]
[ "THIRD SECTION CASE OF ARCHIP v. ROMANIA (Application no. 49608/08) JUDGMENT STRASBOURG 27 September 2011 FINAL 27/12/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Archip v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Mihai Poalelungi, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 6 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49608/08) 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 Constantin Archip (“the applicant”), on 8 October 2008. 2. The applicant was represented by Ms L. Bejenaru, a lawyer practising in Piatra Neamţ. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 3.", "The applicant alleged that he had been subjected to ill-treatment in violation of Article 3 of the Convention and that the authorities had not carried out a prompt and effective investigation of that incident. 4. On 12 January 2010 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS 5.", "The applicant was born in 1976 and lives in Podoleni. I. THE CIRCUMSTANCES OF THE CASE A. The incident of 7 November 2005 6. On 7 November 2005, at about 12 noon, the applicant went to Podoleni Town Hall to cash his monthly sickness benefit.", "Having noticed that the sum cashed was smaller than the amount he had received in previous months he expressed dissatisfaction to the mayor and the deputy mayor. 7. Unsatisfied with the explanations received, the applicant started to insult the civil servants working at the town hall. A few of the witnesses to the incident stated that the applicant was under the influence of alcohol. The applicant denied it.", "8. As the applicant could not be calmed down, the mayor and the deputy mayor took him to the police station, which was situated close to the town hall. 9. The applicant alleged that the mayor had hit him at the police station. He did not submit any medical certificate in this connection.", "10. On the ground that the applicant continued to behave aggressively and to address threats to those around him, the chief police officer, P.E., handcuffed him to a tree in the courtyard of the police station. 11. According to the applicant and several witnesses, he was kept handcuffed for about two hours and forty-five minutes. The Government averred that the handcuffing lasted one hour and forty-five minutes.", "12. As the police station was located in the centre of the village, many inhabitants of the village passed by and saw the applicant handcuffed to the tree in the courtyard. One of them informed the press and the local television station. Reporters arrived at the scene and took pictures of the handcuffed applicant. The incident was covered by an article on 10 November 2005 in the local newspaper Realitatea called ‘The chief police officer of Podoleny molests a fellow citizen’.", "13. Five months before the events in question, the applicant had had surgery on his left femur. According to the documents submitted by him, he was hospitalised in the orthopaedics section of Neamţ Hospital between 12 November and 2 December 2002 and between 30 May and 15 June 2005. At the time of the events he was suffering from coxarthrose (arthritis of the hip) and was receiving sickness benefit for that reason. 14.", "According to the applicant, being kept handcuffed outdoors for such a long time on a cold and wet November day worsened his medical condition. On the basis of a medical certificate issued on 16 January 2008 the applicant had been designated disabled (at medium level) by a medical board. 15. On the day the incident took place, police officer P.E. drafted a report stating that he had had to use force and the handcuffs in order to prevent the applicant from deliberately self-harming.", "He stated that he had kept the applicant handcuffed for twenty to thirty minutes and that he had stayed close to him all this time. However, his statement was contradicted by the statement of M.D., the former deputy mayor of the village, who testified that the applicant was alone and the police station was closed when he passed by the front of the building on 7 November 2005. B. The criminal proceedings initiated by the applicant 16. On 9 November 2005 the applicant lodged a criminal complaint with the Piatra Neamţ District Court against police officer P.E.", "and the mayor, accusing them of causing bodily harm and insulting behaviour. 17. By a judgment rendered on 20 January 2006, that court remitted the file to the prosecutor’s office attached to the Neamţ County Court for investigation of the incident. It gave a new legal classification to the offences mentioned in the applicant’s complaint, namely abuse of position and deprivation of liberty. 18.", "On 24 October 2006 the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation, on the grounds that it was permissible to handcuff an aggressive person. 19. On 21 November 2005 the applicant lodged another criminal complaint against the chief police officer, the deputy chief police officer, the mayor and the deputy mayor. He accused them of deprivation of liberty (under Article 189 § 1 of the Criminal Code). 20.", "On 17 March 2006 the applicant made a statement at the prosecutor’s office. He stated that he had not been hit by any of the defendants, as he had stated in his initial complaint. He added that he had been persuaded to lodge a criminal complaint by the previous mayor, by a member of the local council of the village, and by the president of an organisation fighting against corruption and for the protection of human rights (Asociaţia Naţională Impotriva Corupţiei, Abuzurilor şi Pentru Drepturile Omului – ANICADO). He also stated that he had been handcuffed for less than ten minutes and that it was legitimate, taking into account his own behaviour. He concluded by stating that he wanted to withdraw his complaint.", "Afterwards, during the proceedings before the courts, the applicant alleged that he had been forced to make that statement and that nothing in it was true. 21. By a decision delivered on 23 March 2006, the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation. It held that police officer P.E. had taken the necessary measures in order to calm down the applicant, who was using coarse language and insulting the civil servants working at the town hall, and was behaving in an especially insulting way towards the mayor of the village.", "It also held that handcuffing the applicant was in accordance with the provisions of Law no. 218/2002 regarding the organisation and functioning of the Romanian police (“the Police (Organisation and Functions) Act 2002”), and Order no. 130 of 10 September 2004 regarding the General Inspectorate of Police. It stated that the applicant had not been hit by any police officers. 22.", "Relying on Article 2781 of the Code of Criminal Procedure, the applicant lodged complaints against the decisions of 23 March and 24 October 2006. The two complaints were joined by the chief prosecutor. On 11 June 2007 the chief prosecutor dismissed the complaints and upheld the previous decisions. 23. The applicant’s complaint against the last prosecutor’s decision was dismissed by the Neamţ County Court on 21 February 2008.", "It held that the immobilising of the applicant with handcuffs in the courtyard of the police station had been done in accordance with the applicable legislation, and had been necessary, taking into account the applicant’s attitude. 24. An appeal on points of law lodged by the applicant was dismissed by the Bacău Court of Appeal on 17 April 2008, upholding the judgment of the Neamţ County Court. C Criminal proceedings instituted against the applicant with regard to the events of 7 November 2005 25. On 22 February 2006 the prosecutor’s office attached to Piatra Neamţ District Court indicted the applicant for outrage against public morals and disturbance of public order under Article 321 § 1 of the Criminal Code.", "26. By a judgement of 20 June 2006, the Piatra Neamţ District Court convicted the applicant as charged and sentenced him to one month’s imprisonment, suspended. The judgment remained final, as the applicant did not lodge an appeal on points of law. II. RELEVANT DOMESTIC LAW 27.", "The definition of the offence of outrage against public morals and disturbance of public order was, at the material time, provided for by Article 321 of the Criminal Code and read as follows: Article 321 “Actions by a person who publicly acts or makes gestures, uses words or expressions, or behaves in any other way which is against public morals or which leads to public scandal, are punishable by imprisonment of between three months and two years or by a fine. If the actions stipulated in paragraph 1 seriously disturb public order, the applicable penalty shall be imprisonment of between six months and five years.” 28. The conditions regarding the use of handcuffs by police officers are provided for by the Police (Organisation and Functions) Act 2002. The relevant articles read as follows: Article 34 (1) “In order to deter, prevent and neutralise aggressive behaviour by people who disturb public order and which cannot be brought to an end by other means, police can use protective shields, helmets, rubber truncheons (...) rubber bullet guns and handcuffs, dogs and other means of restraint which do not endanger life or cause serious bodily harm. (2) The means referred to in the above paragraph may be used against people who: a) behave in such a way as to threaten the physical integrity, health or property of others; b) try to enter, enter or refuse to leave the premises of public authorities, political parties, institutions and public or private organisations, jeopardise in any way their integrity or security or prevent them from carrying out their normal activity; c) Insult or attack those who are exercising public functions; d) Offer resistance or fail to comply, in any way, with the orders of a police officer, but only if there is a legitimate fear that by their actions they could jeopardise the physical integrity or the life of that police officer.", "(3) The use of the means described under the first paragraph must not exceed the level necessary to prevent or neutralise the aggressive behaviour.” Article 36 “The use of the means provided by Articles 34 and 35 is prohibited against women with visible signs of pregnancy, against persons with visible evidence of disability and against children, except in cases when they engage in armed attack or in a group, which poses a threat to the life or the integrity of one or more people.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained under Article 3 of the Convention that he had been ill-treated on 7 November 2005 and that the investigation of his complaint had not been effective. The Court considers that the applicant’s complaint should be examined under the substantive and procedural limbs of Article 3 of the Convention. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1.", "Submissions of the parties 30. The Government argued that the applicant had not exhausted domestic remedies, since he had failed to take every legal action available under Romanian law in order to complain about his ill-treatment. In this respect, they averred that the applicant could have lodged a civil action for damages on the basis of Articles 998-99 of the Civil Code. They submitted that such a remedy was not only sufficiently certain in theory and practice but was also effective and accessible. 31.", "The applicant did not submit any observation in this respect. 2. The Court’s assessment 32. The Court reiterates that in cases where an individual has an arguable claim under Article 3 of the Convention, the notion of an effective remedy entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see Selmouni v. France [GC], no. 25803/94, § 79, ECHR 1999-V, and Egmez v. Cyprus, no.", "30873/96, § 65, ECHR 2000‑XII). 33. The Court has held on many occasions that this requirement cannot be satisfied solely by instituting civil proceedings (see, among others, Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September 2004). It has also held that for complaints about treatment suffered in police custody, criminal proceedings are one of the means of obtaining redress (see, for example, Parlak and Others v. Turkey (dec.), nos.", "24942/94, 24943/94 and 25125/94, 9 January 2001). 34. In the present case the Court notes that the applicant lodged a criminal complaint but it did not lead to the conviction of those who had allegedly subjected him to ill-treatment. In this respect, the Court reiterates that where several remedies are available the applicant is not required to pursue more than one and it is normally that individual’s choice as to which (see, mutatis mutandis, Hilal v. the United Kingdom, no. 45276/99, ECHR 2001‑II, and Airey v. Ireland, 9 October 1979, § 23, Series A no.", "32). Consequently, the Court considers that the applicant cannot be required to avail himself of an additional legal avenue in the form of a civil action. It is satisfied that the applicant has thus exhausted domestic remedies. Consequently, the Government’s objection must be dismissed and the complaint declared admissible. B.", "Merits 1. Submissions of the parties 35. The Government denied any ill-treatment of the applicant on 7 November 2005. They stated that it had been necessary to immobilise the applicant with handcuffs because of his aggressive behaviour. In this respect, they maintained that it was for such behaviour that the Bacău Court of Appeal had convicted the applicant of outrage against public morals and disturbance of public order, by a final decision rendered on 17 April 2007.", "36. The Government further submitted that the applicant had been immobilised in accordance with the applicable law. They averred that the domestic courts considered that the police’s reaction was proportional to the applicant’s violent behaviour and that there were no elements that might cast any doubt on their assessment of facts and evidence before it. They also submitted that the present case is similar to Berliński v. Poland (nos. 27715/95 and 30209/96, 20 June 2002), where the Court found that the use of force against the applicant was not excessive, given the circumstances.", "37. They maintained that the immobilisation of the applicant had not lasted two hours and forty-five minutes but one hour and forty-five minutes. They added that all this time police officer P.E. had been present and had stayed close to the applicant. 38.", "The Government also averred that the applicant did not submit any medical certificate or report proving that he had been subjected to ill­treatment. Therefore, they concluded that the applicant had not substantiated his allegations of ill-treatment. 39. They pointed out that the applicant’s medical history revealed that he had been suffering from several health problems before the incident of 7 November 2005. They concluded that the applicant had not proved “beyond reasonable doubt” that he had been ill-treated, taking into account that no medical record pointed out any causal link between the medical problems he suffered and the incident of 7 November 2005.", "40. Finally, the Government pointed out that the Romanian authorities had carried out a thorough and effective investigation, which had revealed that the applicant’s allegations were totally unsubstantiated. 41. The applicant submitted that his medical condition had worsened as a direct consequence of the incident of 7 November 2005. Thus, he contended that after the incident he was qualified as disabled by a medical board.", "42. In respect of the criminal proceedings initiated against him for outrage against public standards of behaviour, he contended that he had never been summoned and that he had only received the final decision, without having known of the existence of the trial. 43. He stressed that the statements of police officer P.E. during the proceedings were variable: thus, while in his first statement he had stated that he had handcuffed the applicant for ten minutes, in his next statement he had stated that it had been for one hour and finally he had admitted that it had lasted for more than two and a half hours.", "44. The applicant submitted that being handcuffed in the courtyard of the police station for two hours and forty-five minutes in November had caused him not only physical but also mental suffering. He also alleged that handcuffing him had been an excessive and unnecessary measure in view of the actual circumstances. 2. The Court’s assessment (a) Concerning the alleged ill-treatment 45.", "The Court reiterates that Article 3 enshrines one of the fundamental values of a democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits, in absolute terms, torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998‑VIII). 46. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” –, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no.", "26772/95, § 121, ECHR 2000‑IV). 47. In the present case, the Court observes that the applicant’s statement that he was kept handcuffed in the courtyard of the police station was not contested by the Government. All that was contested was the duration of the handcuffing; thus, while the Government maintained that the handcuffing lasted one hour and forty-five minutes, the applicant and several witnesses alleged that it lasted two hours and forty-five minutes. 48.", "The Court reiterates in that connection that where domestic proceedings have taken place, as in the present case, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no.269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny. 49.", "The Court observes, and it is not in dispute between the parties, that the applicant had a recalcitrant attitude and addressed insults and threats to the mayor and the deputy mayor. The Court further observes that the Government’s submissions indicate that, in the face of the applicant’s refusal to calm down, the chief police officer and his deputy ordered the applicant to stop his unruly behaviour, but the applicant again refused to comply. The Court observes that, as has been established at the national level, the applicant’s resistance to the order to calm down and go home consisted of threats and coarse language directed at the officers and the civil servants working at the town hall. 50. The Court accepts that in these circumstances the officer may have needed to take measures to prevent further disruption and calm the applicant down.", "The question before the Court is whether the use of force was in compliance with the requirements of Article 3 of the Convention. 51. The Court notes that the applicant centred his grievance on what he described as the gratuitous and humiliating use of handcuffs on him. 52. Therefore, it does not lose sight of the fact that for at least an hour and forty-five minutes the applicant remained handcuffed to a tree in the courtyard of the police station.", "It is apparent from the Government’s submissions that the handcuffing was intended to help the police officer to calm the applicant down and restore order. The Court reiterates that the use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997‑VIII, and Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005). However, the manner in which the applicant is subjected to the measure in issue should not go beyond the threshold of a minimum level of severity envisaged by the Court’s case-law under Article 3 of the Convention (see, mutatis mutandis, Nevmerzhitsky v. Ukraine, no.", "54825/00, § 94, ECHR 2005–II). 53. The Court notes that the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26, and Raninen, cited above, § 56). 54.", "In the instant case, the Court considers that the manner in which the applicant was handcuffed to a tree in the courtyard of the police station located in the centre of the village, and thus visible to the public, was liable to arouse in him feelings of anguish and inferiority that were capable of humiliating and debasing him beyond what is reasonable. Moreover, the press and local television, informed about the incident by an inhabitant who had seen the applicant handcuffed, were present and taking pictures of him, aggravating the applicant’s feeling of humiliation. 55. The Court observes that the applicant contended that the handcuffing had not only humiliated him but had also caused him severe physical pain. In this regard, the Court considers that handcuffing a person outdoors on a cold and wet day in November could cause intense physical pain, not only to a person suffering from coxarthrose, but also to a person in good health.", "56. In addition, the Court also notes that according to Article 36 of the Police (Organisation and Functions) Act 2002, handcuffs may not be used against persons with visible evidence of disability. The disability of the applicant was obvious and was known to the police officers, the mayor and the deputy mayor, who were present at the police station when the applicant was handcuffed to the tree. 57. Therefore, it is questionable for the Court whether handcuffing him in such a place, exposed to the gaze of all the inhabitants of the village passing by, on a cold and wet day in late autumn, without taking into account his precarious state of health, and for such a long time, was conducive to the desired result, and whether the possibility of using other means was considered.", "58. Even accepting that the applicant refused to comply with the police orders to calm down, the Court, having regard to the above considerations, cannot see on what basis the domestic authorities satisfied themselves that the force used against the applicant had not been excessive. 59. The Court therefore concludes that the State is responsible for a violation of Article 3 under its substantive limb on account of the inhuman and degrading treatment to which the applicant was subjected. (b) Concerning the alleged inadequacy of the investigation 60.", "The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by agents of the State 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 investigation (see, among others, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII). 61. An obligation to investigate is an obligation of means; not every investigation should necessarily 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). 62. Any investigation into “arguable” allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov, cited above, § 103 et seq.). 63.", "On the basis of the evidence in the present case, the Court has found that the respondent State is responsible under Article 3 for the ill­treatment of the applicant. The applicant’s complaint in this regard is therefore “arguable”. The authorities thus had an obligation to carry out an effective investigation into the circumstances in which the applicant was ill­treated (see Krastanov v. Bulgaria, cited above, § 58). 64. In this respect, the Court notes that the prosecuting authorities, who had been made aware that the applicant had been handcuffed, carried out a preliminary investigation which did not result in criminal proceedings against the perpetrators.", "The applicant’s complaints against the refusal of the prosecutors to institute criminal proceedings were also examined by the domestic courts at two levels of jurisdiction. They confirmed the prosecutor’s decisions, that the measures taken against the applicant were lawful. 65. In the Court’s opinion, the issue is consequently not so much whether there was an investigation, since the parties did not dispute that there had been one, but whether it was conducted diligently, whether the authorities were determined to identify and take adequate action and if considered necessary to prosecute those responsible and, accordingly, whether the investigation was “effective”. 66.", "Without providing many details about the actual circumstances and apparently without careful consideration of the facts and circumstances of the incident, the judicial authorities concluded that the applicant’s handcuffing was lawful and necessary. They did not try to obtain explanations as to why the police officer did not pursue other means of calming down the applicant, who did not pose enough of a threat to the police officers and civil servants at the town hall to justify such extreme measures. 67. The Court notes some discrepancies capable of undermining the reliability and effectiveness of the investigation. Firstly, a thorough evaluation was not carried out with respect to the period of time the applicant spent handcuffed in the courtyard of the police station.", "Thus, while the chief police officer mentioned twenty to thirty minutes in his report, the applicant and several witnesses stated that he had been handcuffed for two hours and forty-five minutes. The Government acknowledged that he had been handcuffed for one hour and forty-five minutes. 68. Furthermore, it was not made clear whether the chief police officer was present near the applicant while he was handcuffed or whether the applicant was alone and the police station was closed. 69.", "Although the chief police officer mentioned in his report of 7 November 2005 that the main reason for handcuffing the applicant was to prevent him from self-harming, no evidence was produced in this respect. 70. Moreover, the Court observes a selective and somewhat inconsistent approach to the assessment of evidence by the investigating authorities. It is apparent from the decisions submitted to the Court that the judicial authorities based their conclusions mainly on the report drafted by the chief police officer immediately after the incident and the statements given by the police officers and the mayor involved in the incident. 71.", "Having regard to the above-mentioned failings on the part of the Romanian authorities, the Court finds that the investigation into the applicant’s allegations of ill-treatment was not thorough, adequate or effective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 73. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and 700,000 euros (EUR) in respect of non-pecuniary damage. 74. The Government contended that the applicant did not submit any conclusive evidence regarding the merits of the case. Therefore, they concluded that he had not proved the alleged pecuniary and non-pecuniary damage.", "75. The Court rejects the claim in respect of pecuniary damage, as the applicant did not submit any documents to justify it. On the other hand, having regard to its findings concerning the applicant’s complaint under Article 3 of the Convention, the Court considers that the applicant suffered damage of a non-pecuniary nature which is not sufficiently redressed by the finding of a violation of his rights under the Convention. 76. For the foregoing reasons, having regard to the specific circumstances of the present case and its case-law in similar cases and deciding on an equitable basis, the Court awards EUR 10,000 under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 77. The applicant did not claim the reimbursement of any costs and expenses. 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 the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the handcuffing of the applicant in the courtyard of the police station; 3. Holds that there has been a violation of Article 3 of the Convention in respect of the absence of a thorough, adequate and effective investigation; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Romanian lei at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep Casadevall Registrar President" ]
[ "FOURTH SECTION CASE OF BRITANIŠKINA v. LITHUANIA (Application no. 67412/14) JUDGMENT STRASBOURG 9 January 2018 FINAL 09/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Britaniškina v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Paulo Pinto de Albuquerque,Faris Vehabović,Egidijus Kūris,Carlo Ranzoni,Georges Ravarani,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 5 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "67412/14) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Libė Britaniškina (“the applicant”), on 9 October 2014. 2. The applicant was represented by Mr M. Kazlauskas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3.", "On 13 September 2016 the complaint under Article 1 of Protocol No. 1 to the Convention concerning the fact that the applicant had not been provided with a new plot of land of equal value and the overall delays in finalising the restitution process 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 was born in 1930 and lives in Vilnius.", "5. On 29 December 2001 the applicant’s husband asked the national authorities to restore his property rights to a house and a plot of land in Vilnius which had belonged to his grandfather before nationalisation. On 28 February 2002 the applicant’s husband specified his initial request and asked to have the plot of land restored in natura to him if possible, or to provide him with another plot of land in Vilnius. 6. The property rights of the applicant’s husband were restored to some premises (a storehouse) in Vilnius in 2003 and it was decided to pay him monetary compensation for the other premises that had not been returned to him in natura.", "7. On 10 April 2003 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored to 0.1638 hectares of land for residential purposes. 8. On 11 June 2003 the Vilnius Municipality informed the Vilnius County Administration that a plot of land of 0.1007 hectares had been formed near the buildings owned by the applicant’s husband. 9.", "In November 2003 the Vilnius City First District Court established as a legal fact that the grandmother of the applicant’s husband had owned a plot of land in Vilnius measuring 362 square “fathoms” (sieksnis – 1 fathom equals 1.82 m). 10. On 12 March 2004 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored and that he was a candidate to receive a plot of land measuring 0.1638 hectares in natura. In July 2004 the Vilnius County Administration issued a document stating that the applicant’s husband had a right to a plot of land of 0.1638 hectares. 11.", "In August 2006 the authorities replied to the applicant husband’s letter asking why only a plot of land of 0.1007 hectares instead of 0.1638 hectares had been formed near the house, and stated that the plot of land 0.1007 hectares where the premises had been situated, would be divided for several co-owners of the premises and the rest of the land would be returned to the applicant’s husband by the means he chose. 12. On 16 May 2007 the applicant’s husband died and the applicant became his heir. 13. On 27 March 2009 the applicant’s son, as the representative of the applicant, asked the authorities to restore the property rights of his father to the plot of land of 0.1171 hectares by paying compensation in securities.", "14. On 9 April 2009 the property rights of the applicant’s husband were restored in natura to 0.0467 hectares of land and it was provided that compensation of approximately 1,642 euros (EUR) would be paid in securities for the remaining 0.1181 hectares of land. On 24 July 2009 this decision was changed and it was decided to restore the applicant’s husband’s property rights to a plot of land of 0.0362 hectares in natura and to pay compensation in securities for the plot of land of 0.1286 hectares, amounting to approximately EUR 1,788. 15. In October 2009 the applicant lodged a complaint with the Vilnius Regional Administrative Court, claiming that the compensation in securities, established by the national authorities, was unjust, and asking to have the value of the plot of land measuring 0.1286 hectares recalculated.", "In February 2010 the applicant applied to have the administrative proceedings suspended and to have the matter of calculation of compensation referred to the Constitutional Court. 16. On 10 February 2010 the Vilnius Regional Administrative Court held that the Vilnius County Administration had calculated the compensation in accordance with the methodology approved by the Government (see paragraph 33 below). However, the calculation of the municipality provided that the market value of the plot was approximately EUR 786,029 and the market value of the plot as calculated by the Centre of Registers was approximately EUR 750,313. The court stated that in comparison with these numbers, the value of the plot of land provided by the Vilnius County Administration (see paragraph 14 above) was 327.5 times lower, and it could not conform to the principle of equal value.", "Moreover, in accordance with the methodology approved by the Government, the calculation was the same for plots of land in the city centre and outside the city. The court thus decided to suspend the administrative proceedings and to refer the matter to the Constitutional Court. 17. In April 2013 the National Land Service informed the applicant that the relevant laws had been changed and that she could change the form of restoration of the property rights to 0.1286 hectares of land. Instead of securities she could choose one of the following: to be assigned a new plot of land of equivalent value to the one held previously; to have the liabilities to the State legally voided; to be assigned a new plot of land for individual construction; to receive monetary compensation.", "It appears that the applicant did not reply to this letter. 18. On 30 September 2013 the applicant was included on the list of persons to receive a plot of land for construction of an individual house. 19. After the matter had been resolved by the Constitutional Court (see paragraph 35 below), the Vilnius Regional Administrative Court rejected the applicant’s claim on 4 November 2013.", "The court analysed the domestic regulation regarding the calculation of the value of the land and observed that this matter had been referred to the Constitutional Court, which held that the methodology approved by the Government setting down the principles of calculation of the value of the land was in accordance with the law. The Vilnius Regional Administrative Court also held that the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and persons could, before 1 July 2013, choose other means to restore their property rights than by payment of securities. If no other means were chosen, the property rights had to be restored by paying monetary compensation. The court further observed that the authorities had suggested the applicant choose other means to have her property rights restored (see paragraph 17 above), and that in September 2013 it had been decided to include the applicant on the list of persons to receive a plot of land for construction of an individual house. The decision the applicant complained of, that is to say the calculation of the compensation to be paid in securities, had not been of legal importance to the applicant because the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and it had become impossible to restore the property rights in securities.", "The decision to restore the applicant’s property rights by paying her compensation in securities had to be changed to monetary compensation. Because the applicant had been included on the list of persons to receive a new plot of land for individual construction, she could use another way to restore her property rights. 20. The applicant appealed. On 29 May 2014 the Supreme Administrative Court upheld the first-instance decision.", "The court also emphasised the argument of the Constitutional Court that, in calculating the compensation, it was justified to pay heed not only to the market value of the property but also to its value at the time of nationalisation and to the changes in the quality and the value of property. The Supreme Administrative Court also held that the applicant had complained about the length of the court proceedings. The court held that the applicant had lodged the complaint on 4 November 2009; it had been accepted by the Vilnius Regional Administrative Court on 17 November 2009. On 10 February 2010 the Vilnius Regional Administrative Court had decided to apply to the Constitutional Court, which had adopted its decision on 11 September 2013. The proceedings in the administrative case had recommenced on 16 September 2013 and the decision had been adopted on 4 November 2013.", "Given the complexity of the case and referral of the matter to the Constitutional Court, the length of proceedings had not breached the reasonable time requirement. 21. On 11 November 2014 the National Land Service informed the applicant’s son, as the applicant’s representative, that on 1 November 2014 it had become possible to restore the property rights by receiving a plot of forest of equal value. The applicant was asked to express her wish before 1 March 2015. It appears that she never replied to this letter.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 22. Article 23 of the Constitution reads as follows: “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 for.” 23.", "Article 102 of the Constitution reads as follows: “The Constitutional Court shall decide whether the laws and other acts of the Seimas are in conflict with the Constitution, and whether the acts of the President of the Republic and the Government are in conflict with the Constitution or laws. ...” 24. In accordance with Article 63 § 3 of the Law on the Constitutional Court, the Constitutional Court examines cases concerning compliance of Government acts with the Constitution and laws. 25. Article 98 § 1 (4) of the Law on Administrative Proceedings provides that the administrative case is suspended when the court applies to the Constitutional Court asking to decide whether a law or another legal act, that has to be applied in a specific case is in accordance with the Constitution.", "26. At the material time, Article 5 § 2 (1) of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property of 1997 (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas, hereinafter – the Law on Restitution) provided that property rights to land that until 1 June 1995 had been within the boundaries of a city were to be restored by returning in natura the land that was unoccupied to a citizen or citizens by a right of joint property, and by giving the plots of land to the citizens who had buildings on them, except when the land was State redeemable or a citizen did not want to have it returned in natura. 27. At the material time, Article 16 § 1 of the Law on Restitution provided that the State had to compensate citizens for titles to existing real property which had been bought by the State, as well as for titles which had existed prior to 1 August 1991 but had been subsequently annulled as a result of decisions adopted by the State or local authorities. Article 16 § 2 provided that when the State had to compensate citizens for real property which, in accordance with this Law, had not been returned in natura, the principle of equal value had to be applied to both the property that had not been returned and property which had been given in kind as compensation for property acquired by the State.", "Article 16 § 3 provided that the value of State redeemable property and property that citizens did not want to receive in natura was to be calculated in accordance with the methodology approved by the Government. One of the forms of compensation for land, forest and riparian rights acquired by the State was compensation in the form of securities (Article 16 § 9 (3)). 28. On 1 February 2012, Article 16 § 9 (6) the Law on Restitution was amended by providing, for the first time, for payments in cash as one of the ways of compensating for land compulsorily bought by the State. 29.", "On 8 November 2012, the Law on Restitution was amended (the amendment entered into force on 22 November 2012) by annulling the compensation in the form of securities and providing that if a citizen asked to restore his or her property rights in the form of securities, he or she could, by 1 July 2013 change his or her wish regarding the form in which the ownership rights to the real property were restored. If a final decision on restitution in the form of securities had already been taken, the relevant authority could, upon the request of the citizen, change that decision. 30. As from 1 November 2014, Article 21 § 4 of the Law on Restitution provided that a citizen who had already asked for his or her property rights to a plot of land to be restored, could by 1 March 2015 express or change his or her wish regarding the form in which the ownership rights to the real property were restored and choose a plot of forest of equal value, provided that a final decision on restitution had not been taken or, if it had been taken, had not yet been executed or had been executed in part. 31.", "At the material time, Government Resolution of 29 September 1997, no. 1057, provided that compensation for the property that the citizens did not want to receive in natura was to be calculated in accordance with the methodology approved by the Government Resolution on 24 February 1999, No. 205 (hereinafter – “the Methodology”). If the citizens were to be compensated in the form of securities, the value of the securities was to be calculated in accordance with the order approved by the Government on 12 July 2002 by resolution No. 1130.", "32. The Methodology was amended on 10 April 2013, removing the option of compensation in the form of securities. 33. The Methodology provided that the value of State redeemable land or forest was calculated by multiplying the area of land by the value of the land. In cities, the value of the land used for other purposes was 6,000 Lithuanian litai (LTL) per hectare (approximately EUR 1,738) (Point 4.2.).", "If the plot of land was within the territories of Vilnius and Kaunas before 1 June 1995, the value had to be multiplied by eight (Point 6.1.1.). 34. 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). 35. On 11 September 2013 the Constitutional Court examined, whether the Methodology was in accordance with the Constitution and the Law on Restitution.", "The Constitutional Court referred to its ruling of 30 September 2003, where it held that Lithuania had chosen restricted restitution, not restitutio in integrum. The Constitutional Court further held that since the beginning of the restitution process in 1991, the Law on Restitution had established that the provision of restricted restitution meant that compensation for State redeemable property had been calculated having regard to the real value of the property at the time of redemption, with the expenses for amelioration of the property deducted. The Government approving the Methodology thus had had to apply the provisions of existing domestic law. The Constitutional Court referred to its rulings of 2 April 2001 and 4 March 2003 where it had held that the legislature had had wide discretion to establish the conditions and order of restoration of property rights and this discretion had been objectively preconditioned by the fact that the system of property relationship had changed over time. The Constitutional Court also referred to its rulings of 23 August 2005, 5 July and 6 September 2007, 9 March 2010 and 30 May 2013 where it had held that payment of compensation had not been contrary to the principle of inviolability of property because just compensation had also ensured the restoration of property rights.", "When restoring justice in respect of property owners, the State could not ignore its duty to ensure that justice was done vis-à-vis society as a whole. Thus in the process of restoration of property rights, it had to strike a balance between the persons whose rights had to be restored and the interests of the entire society. The State could not establish a method of compensation that would be a financial burden on society and the State. When deciding whether compensation for property that had not been returned in natura was adequate, account had to be taken not only of the market value of that property, but also of the value of the property at the moment of nationalisation, as well as of changes in the quality and value of the property. It was clear from the material available in the constitutional‑justice case at issue that the Government had linked the amount of compensation for State redeemable land in urban areas to the average price of the land at the time of nationalisation or unlawful expropriation by other means.", "This had not breached the Constitution and the Law on Restitution. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 36. The applicant complained that the State authorities had breached her rights by failing to restore her property rights by providing her with a new plot of land.", "She was also dissatisfied with the overall length of the restitution process in her case. The applicant relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 37.", "The Government argued that the applicant had failed to exhaust the domestic remedies with regard to her complaint about the overall delay in finalising the restitution process. The Government stated that the applicant could have started court proceedings, claiming non-pecuniary damages for the alleged delay in finalising the restitution process and she could have lodged a claim with the domestic courts, asking them to oblige the authorities to act in due time. 38. The applicant did not comment on this issue. 39.", "The Court is unable to share the Government’s view that the applicant should have started new court proceedings for damages if she 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 necessarily bringing a tangible result (see Paukštis v. Lithuania, no. 17467/07, § 56, 24 November 2015, Kavaliauskas and Others v. Lithuania, no. 51752/10, § 46, 14 March 2017, Valančienė v. Lithuania, no. 2657/10, § 49, 18 April 2017).", "40. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies. 41. The Court also 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 42. The applicant firstly argued that the Lithuanian authorities had failed to act diligently, had included her without her having requested on the list of persons to receive a plot of land for construction of an individual house, and as a consequence she had been precluded from restoring her rights to 0.1286 hectares of land.", "Furthermore, the process of restitution in her case had not come to an end and it was still not clear when, where and what plot of land would be offered to the applicant for construction of an individual house. 43. The Government noted at the outset that in the 1990’s Lithuania had striven to re-establish justice and to reinstate the violated property rights of citizens whose property had been nationalised during Soviet times. It had chosen restricted restitution, however, not restitutio in integrum. The restitution process had thus sought to balance the interests of those whose rights were being remedied and the interests of society as a whole.", "44. The Government further submitted that the applicant’s husband had only started restitution proceedings at the end of 2001, ten years after the process of restitution had begun in Lithuania. Moreover, the entitlement to restore the applicant’s husband’s property rights had been confirmed by the authorities in 2004, but up to 2009, when a decision to restore the property rights to the applicant’s husband had been taken, the applicant had merely been a candidate to have her property rights restored in a certain way (see paragraphs 10 and 14 above). Also, the restoration of the property rights by way of securities had been chosen upon the explicit request of the applicant (see paragraph 13 above). However, afterwards she had decided to start court proceedings because she had thought that the compensation calculated in the form of securities had been too low.", "This, and the fact that the applicant’s request to refer the issue to the Constitutional Court had been satisfied, had protracted the restitution process. The Government explained that during the court proceedings the possibility to have one’s property rights restored in the form of securities had been annulled because there had been no securities left, and the applicant had been informed of her right to have her property rights restored by another method. As she had failed to do so, the authorities had included her on the list of persons to receive a plot of land for individual construction. This list had been prepared taking into account the date of the initial request – in the applicant’s case it was 2001 – and it was constantly updated. In September 2016 the applicant had been 3,046th in line, and in October 2016 the first 1,000 claimants were invited to choose a plot of land for construction of an individual house.", "Moreover, after the change in the Law on Restitution in 2014, the applicant had been informed of the possibility to restore her property rights through receipt of a plot of forest of equal value, but she had not availed herself of this possibility (see paragraph 21 above). Lastly, the applicant was still able to receive monetary compensation, but she had never expressed a wish to do so. It was clear that the process of restitution had been partly complicated and further delayed by the applicant’s own conduct. 2. The Court’s assessment 45.", "The Court notes that the applicant’s husband applied to have his property rights restored in 2001. His entitlement to have his property rights restored was confirmed in 2004 and the decision to restore part of his property rights in natura and part in the form of securities was taken in 2009 (see paragraphs 10 and 14 above). Since the applicant was included on the list of persons to receive a plot of land for construction of an individual house in 2013 but she has not yet received it, the Court holds that there was an interference with her right to peaceful enjoyment of her possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. It remains to be ascertained, whether or not that interference was justified.", "46. For the purposes of the above-mentioned provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52, and Nekvedavičius v. Lithuania, no. 1471/05, § 86, 10 December 2013). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Străin and Others v. Romania, no.", "57001/00, § 44, ECHR 2005‑VII, and Tunaitis v. Lithuania, no. 42927/08, § 31, 24 November 2015). 47. In the context of property rights, particular importance must be attached to the principle of good governance (see Nekvedavičius, cited above, § 87). In that connection it should be stressed that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [GC], no.", "33202/96, § 120, ECHR 2000‑I, see also Berger‑Krall and Others v. Slovenia, no. 14717/04, § 198, 12 June 2014, Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008, Moskal v. Poland, no. 10373/05, § 51, 15 September 2009).", "48. The Court takes cognisance of the fact that the present case concerns the restitution of property and is not unmindful of the complexity of the legal and factual issues that a State faces when resolving such questions. It follows that certain impediments to the realisation of an applicant’s right to the peaceful enjoyment of his or her possessions are not in themselves open to criticism (see Aleksa v. Lithuania, no. 27576/05, § 86, 21 July 2009; Igarienė and Petrauskienė v. Lithuania, no. 26892/05, § 58, 21 July 2009; Paukštis, cited above, § 84; and Šimaitienė v. Lithuania, no.", "55056/10, § 45, 21 February 2017). 49. Even so, the state of uncertainty in which an applicant might find her or himself as a result of delays attributable to the authorities is a factor to be taken into account in assessing a State’s conduct (see Broniowski v. Poland [GC], no. 31443/96, §§ 151 and 185, ECHR 2004‑V, and Igarienė and Petrauskienė, cited above, § 58). 50.", "In the circumstances of the present case, the Court notes that the applicant’s property rights were restored by the decision of the authorities of 2009 (see paragraph 14 above). However, after six months, the applicant started court proceedings as she felt that the compensation calculated in the form of securities had been too low (see paragraph 15 above). During the court proceedings, the relevant provisions of the Law on Restitution were changed and the restitution of the property rights in the form of securities was annulled (see paragraph 29 above). The applicant was subsequently informed about the forms of restitution available to her by the authorities, she was asked to express her preference regarding the forms of restitution in 2013 (see paragraph 17 above). As no response had been received from her, the authorities decided to include her on the list of persons to receive a plot of land for construction of an individual house, because as one of the options in his initial request to restore his property rights, her husband had indicated that he would like to receive a plot of land in Vilnius (see paragraph 5 above).", "After the relevant provisions of the Law on Restitution were changed and it became possible to receive a plot of forest of equivalent value as a form of restitution, the applicant was informed of this fact but no response was received from her (see paragraphs 21 and 30 above). Moreover, the right to receive monetary compensation was not annulled but the applicant’s written request was needed in order to pay it (see paragraphs 28 and 29 above). Although the Court does not lose sight that there were some delays on the part of the authorities, in particular that the proceedings before the Constitutional Court lasted for more than three years, it observes that the applicant herself decisively contributed to the fact that her property rights had not yet been restored and to the lengthy restitution process. 51. The Court notes that the national authorities acted within the margin of appreciation afforded to the respondent State when striking a fair balance between the general interest and the applicant’s rights.", "Having regard to the applicant’s own complaints to the domestic courts and later her own inactivity, the Court considers that the fact that the applicant’s property rights have not yet been restored and the delays in the restitution process were not such as to amount to a violation of Article 1 of Protocol No. 1 to the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 1 of Protocol No.", "1 to the Convention. Done in English, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident" ]
[ "SECOND SECTION CASE OF HASKO v. TURKEY (Application no. 20578/05) JUDGMENT STRASBOURG 17 January 2012 FINAL 17/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hasko v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20578/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Dündar Hasko (“the applicant”), on 7 June 2005. 2. The applicant was represented by Ms H.S. Özyavuz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.", "3. The applicant alleged, in particular, that the length of the criminal proceedings against him had been incompatible with Article 6 § 1 of the Convention and that his right to adversarial proceedings had been breached by the non-communication of the Principal Public Prosecutor’s opinion to him. 4. On 10 February 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 (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1930 and lives in Istanbul. 6. In 1991 the inspection board of a State-owned bank (Türkiye Vakıflar Bankası Teftiş Kurulu – “the Board”) issued a report claiming, inter alia, that the applicant, who was a lawyer, had withdrawn substantial amounts of expropriation compensation on behalf of several persons by submitting false powers of attorney.", "In 1993, on the basis of the Board’s report, the bank requested the institution of criminal proceedings against the applicant. 7. On 26 September 1993 the Beyoğlu Public Prosecutor filed an indictment against the applicant for knowingly using false powers of attorney. 8. On 21 March 1994 the Istanbul Assize Court acquitted the applicant, stating that the powers of attorney had been issued by a notary and conveyed to the applicant by third parties and that there was insufficient evidence to prove that the applicant knew these documents to be false.", "On 8 December 1994 the Court of Cassation quashed the judgment of the first-instance court, stating that the court had failed to examine certain major witnesses. 9. After examining these witnesses, on 20 March 1996 the Istanbul Assize Court once again acquitted the applicant. The statements of one of the civil parties, N.K., were taken in the absence of the applicant. Nevertheless, her statements were read during the hearing of 26 June 1995 and the applicant had the opportunity to submit his arguments against them.", "10. On 13 May 1997 the Court of Cassation quashed the judgment of the first-instance court, this time stating that the court had failed to evaluate the authenticity of the signatures on the powers of attorney. 11. On 23 January 2001, taking into account expert reports on the authenticity of the signatures, the Istanbul Assize Court again acquitted the applicant. However, this judgment was quashed by the Court of Cassation on 8 October 2002.", "The higher court stated that the first-instance court had erred in its judgment and that the applicant should have been sentenced. 12. On 17 July 2003, following six hearings, two of which were conducted with the attendance of N.K., the Istanbul Assize Court found the applicant guilty as charged and sentenced him to four years and eight months’ imprisonment. The court mainly relied on the expert reports and indicated that the witness statements were not adequate to clarify whether the applicant had used the false powers of attorney knowingly. 13.", "During the appeal proceedings, the Principal Public Prosecutor at the Court of Cassation submitted his written observations to that court. However, those observations were not forwarded to either the applicant or his lawyer. On 22 December 2004 the Court of Cassation upheld the judgment of the Istanbul Assize Court. 14. Subsequently, the applicant requested the suspension of the execution of his sentence on account of his age and poor state of health, submitting several doctors’ reports which stated that he was suffering from cerebrovascular and vertebral insufficiency as well as hypertension.", "On 16 February 2005 the Istanbul Assize Court refused his request. 15. Following the entry into force of the new Criminal Code (Law no. 5237) in 2005, the Istanbul Assize Court re-examined the applicant’s sentence on 13 February 2006 and reduced it to three years and nine months’ imprisonment. The applicant did not appeal against that decision.", "16. In July 2010, an additional arrest warrant was issued against the applicant. II. RELEVANT DOMESTIC LAW 17. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no.", "36590/97, § 34, ECHR 2002‑V). 18. On 2 January 2003 Article 316 of the Code of Criminal Procedure was amended to provide that the written opinion of the Principal Public Prosecutor at the Court of Cassation must be notified to the parties. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19.", "The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been incompatible with the “reasonable time” requirement. He further maintained under the same provision that the principle of equality of arms had not been respected during the criminal proceedings against him as the written opinion submitted by the Principal Public Prosecutor to the Court of Cassation had not been communicated to him, depriving him of the opportunity to submit his counter-arguments. 20. The Government contested that argument. A. Admissibility 21.", "The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They maintained firstly that the applicant had not appealed against the first-instance court’s judgment mitigating his sentence. Secondly, they stated that he had failed to lodge a new request for the suspension of the execution of his sentence following the entry into force of the recent Code on the Execution of Criminal Penalties (Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun). 22. The applicant disputed the Government’s arguments.", "He submitted that the decision dated 13 February 2006 merely concerned the re-evaluation of his case in the light of the new Criminal Code. In this respect, he maintained that he had not been informed that a re-evaluation would take place and that the court had decided to reduce his sentence on the basis of the case file, without holding a hearing. 23. The Court reiterates that the obligation to exhaust domestic remedies requires only that an applicant make normal use of effective and sufficient remedies, that is those capable of remedying the situation at issue and affording redress for the breaches alleged (see Karakullukçu v. Turkey, no. 49275/99, § 27, 22 November 2005).", "It notes that the re-evaluation conducted by the court subsequent to the entry into force of the new Criminal Code was of a procedural nature, aiming to apply the more favourable provisions of that Code. Accordingly, that procedure did not have an overall effect on the fairness of the criminal proceedings against the applicant. As for the Government’s argument concerning the applicant’s failure to make an additional request for suspension of the execution of his sentence, the Court considers that the preliminary objection concerns the complaint raised under Article 3 of the Convention and that in any case the applicant had recourse to that remedy once following the decision of the Court of Cassation. The Court therefore concludes that the Government’s preliminary objections cannot be upheld. 24.", "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.", "As to the complaint concerning the excessive length of proceedings 25. The applicant complained that the criminal proceedings against him had not been concluded within a reasonable time. 26. The Government stated that the length of the impugned proceedings had been compatible with Article 6 § 1 of the Convention, taking account of the complexity of the case, the applicant’s conduct and that of the competent authorities. They further maintained that the Istanbul Assize Court had delivered five judgments during the course of the proceedings and that there had been no period during which the judicial authorities had been inactive.", "27. The Court notes that in the instant case the criminal proceedings began on 26 September 1993, when the public prosecutor filed an indictment against the applicant, and ended on 22 December 2004 with the decision of the Court of Cassation. They thus lasted for a period of eleven years and two months at two levels of jurisdiction. 28. The Court observes that it has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among others, Er v. Turkey, no.", "21377/04, § 23, 27 October 2009; Şahap Doğan v. Turkey, no. 29361/07, § 39, 27 May 2010; and Fırat Can v. Turkey, no. 6644/08, § 74, 24 May 2011; see also, mutatis mutandis, Frydlender v. France [GC], no. 30979/96, §§ 42‑46, ECHR 2000‑VII, and Daneshpayeh v. Turkey, no. 21086/04, §§ 26‑29, 16 July 2009).", "The Court notes in the present case that the Court of Cassation quashed the judgment of the first-instance court as many as three times. It reiterates that the repeated quashing and remittal of lower court decisions for re-examination are usually ordered as a result of errors committed by the latter, which, within one set of proceedings, discloses a deficiency in the operation of the legal system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003, and Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008). 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, it considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 30. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the excessive length of the criminal proceedings. 2.", "As to the non-communication of the Principal Public Prosecutor’s opinion 31. The applicant contended that the domestic courts had violated his right to adversarial proceedings in that the written opinion of the Principal Public Prosecutor concerning his appeal request had not been communicated to him. 32. The Government maintained that the applicant’s lawyer should have asked to examine the case file, which included the Principal Public Prosecutor’s opinion when it arrived at the registry of the Court of Cassation. They further submitted that the Code of Criminal Procedure foresees that the opinion would be served on the defendant party.", "33. The Court notes that it has already examined similar grievances in the past and found a violation of Article 6 § 1 of the Convention (see, among others, Göç, cited above, § 58; Hakan Duman v. Turkey, no. 28439/03, §§ 54-56, 23 March 2010; and Çamyar and Berktaş v. Turkey, no. 41959/02, §§ 52-54, 15 February 2011). In the Göç judgment (cited above) the Court held that, having regard to the nature of the Principal Public Prosecutor’s submissions and to the fact that the applicant had not been given an opportunity to make written observations in reply, there had been an infringement of the applicant’s right to adversarial proceedings.", "34. 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. Moreover, there is nothing in the case file to prove that the opinion of the Principal Public Prosecutor was served on the applicant in compliance with the Code of Criminal Procedure (contrast Ayhan Işık v. Turkey, no. 33102/04, § 38, 30 March 2010). 35.", "The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention as regards the non-communication of the Principal Public Prosecutor’s written opinion to the applicant. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. Relying on Article 3 of the Convention, the applicant argued that he would be subjected to inhuman and degrading treatment if his sentence were executed. In support of this complaint, he submitted that he was eighty years old and suffered from several diseases which required him to live under constant medical supervision.", "37. The Government contested that argument. They maintained that the applicant lacked victim status as he has not yet served his sentence. 38. The Court observes that if ill-treatment is to fall within the scope of Article 3, it must attain a minimum level of severity.", "The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI). 39. In the instant case, the applicant relies on his age and his state of health. The Court notes that advanced age is not a bar to pre-trial detention or a prison sentence in any of the Council of Europe’s member States.", "However, age in conjunction with other factors, such as state of health, may be taken into account either when sentence is passed or while the sentence is being served (see Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001‑VI) (for instance, when a sentence is suspended or imprisonment is replaced by house arrest). 40. While none of the provisions of the Convention expressly prohibits imprisonment beyond a certain age, the Court has already had occasion to note that, under certain circumstances, the detention of an elderly person over a lengthy period might raise an issue under Article 3.", "Nonetheless, regard is to be had to the particular circumstances of each specific case (see Priebke v. Italy (dec.), no. 48799/99, 5 April 2001; Sawoniuk v. the United Kingdom (dec.), no. 63716/00, 29 May 2001; and Papon, cited above). 41. The Court notes that in the present case the applicant has not started serving his sentence despite an additional arrest warrant having been issued against him in July 2010.", "Nor has he requested the suspension of the execution of his sentence during the six years that have passed following his initial request, in order to substantiate his argument that the authorities have disregarded his deteriorating health condition. 42. The Court concludes therefore that the complaint is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 43.", "The applicant complained under Article 6 §§ 1 and 2 of the Convention that both the Assize Court and the Court of Cassation had failed to deliver reasoned judgments. Relying upon Article 6 § 3 of the Convention, he also argued that he had not been given sufficient time to prepare his defence and that he had not had the opportunity to examine witnesses. Finally, invoking Article 8 of the Convention, he repeated the complaint he had made under Article 3. 44. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions.", "It follows that this part of the application is manifestly -ill- founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage and another EUR 40,000 for non-pecuniary damage. He also requested EUR 10,000 for costs and expenses incurred before the Court.", "46. The Government contested these claims, considering the requested amounts excessive. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 7,200 in respect of non-pecuniary damage.", "48. As regards costs and expenses, the Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). In the present case, the applicant has not substantiated that he has actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case.", "Accordingly, the Court makes no award under this head. 49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the criminal proceedings and the non-communication of the Principal Public Prosecutor’s written opinion 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 and the non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,200 (seven thousand two hundred euros) in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident" ]
[ "FIFTH SECTION CASE OF RADKOV v. BULGARIA (no. 2) (Application no. 18382/05) JUDGMENT STRASBOURG 10 February 2011 FINAL 10/05/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radkov v. Bulgaria (no.", "2), The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva,Angelika Nußberger,Julia Laffranque, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18382/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Plamen Todorov Radkov (“the applicant”), on 26 April 2005. 2. The applicant was not legally represented.", "The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The applicant alleged, in particular, that the conditions in Lovech Prison where he had been detained violated Article 3 of the Convention, and that he had had no effective remedies in that respect, as required under Article 13 of the Convention. 4. On 10 March 2009 the Court declared the application partly inadmissible and decided to give the Government notice of the complaints concerning the conditions of detention in Lovech Prison and the lack of effective remedies in that respect.", "It also decided to examine the merits of the remainder of the application at the same time as its admissibility (Article 29 § 3 of the Convention, as in force before 1 June 2010). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and is currently detained in Bobov Dol Prison. A.", "The applicant's detention 6. On 26 May 1999 the applicant was arrested on suspicion of murder and placed in the detention centre at the Ruse Investigation Service. On 8 March 2000 he was transferred to Lovech Prison. Initially, he was detained in the prison as an accused, pending the outcome of his trial. After 27 November 2003, when he was convicted and sentenced to life imprisonment, he remained there to serve his sentence.", "On 5 November 2008 he was transferred to Bobov Dol Prison. 7. After 27 November 2003 the applicant was placed under a “special regime” (see paragraphs 22-23 below). 8. While in Lovech Prison, for an unspecified initial period of time the applicant was in an individual cell measuring four square metres.", "Subsequently he was placed in a cell measuring 12.6 square metres which he shared with other inmates. None of those cells was equipped with toilet facilities, sinks or running water, and the inmates were allowed to go to the toilet only three times a day, for ten minutes each time. Outside those periods they had to relieve themselves in a plastic bucket which they could empty and clean when going to the toilet. 9. According to the applicant, the food served was insufficient and not of satisfactory quality.", "10. Neither the Government nor the applicant submitted information about the conditions of the applicant's detention in Bobov Dol Prison. 11. On 27 April 2004 the applicant complained to the prison administration of the practice of using buckets and of the quality of the food. It is unclear whether he received a reply.", "After his transfer to Bobov Dol Prison the complaint was destroyed. The Court has not been informed of the administration's reply. B. The applicant's claim for damages against the authorities 12. On 27 October 2004 the applicant brought a claim before the Lovech District Court against the Ministry of Justice.", "He sought 3,000 Bulgarian levs (BGN) under section 1 of a 1988 Act governing State liability for damage (see paragraph 25 below), alleging that he had suffered distress and humiliation as a result of the poor conditions of his detention. The claim concerned the period from 8 March 2000 to 27 October 2004. 13. The judges who dealt with the case visited the prison and inspected the cells in which the applicant had been kept. They heard witnesses and gathered other evidence.", "14. In a judgment of 8 July 2005 the Lovech District Court partly allowed the claim. It found that by failing to ensure access to toilet facilities and running water the authorities had failed to comply with their obligation to ensure conditions of detention compatible with human dignity. It held: “There is no doubt that having to use a bucket for toilet needs, in a cell measuring around ten square metres, without sufficient ventilation, in the presence of others, diminishes human dignity, falls foul of all sorts of criteria of hygiene [and] poses a serious risk to the inmates' health. The conditions, in which [the applicant was] placed, amounted to degrading treatment ...” 15.", "In the court's opinion, that situation was incompatible with Article 3 of the Convention and several provisions of domestic law. In reaching that conclusion the court had regard to this Court's case-law and the recommendations of the Committee for the Prevention of Torture concerning the use of buckets in the cells (see paragraph 27 below). 16. The court went on to examine the applicant's allegation that the food had been insufficient and of poor quality. However, it found that this was unsubstantiated, as the food served to the inmates was prepared in strict compliance with the portions and requirements adopted by the Ministry of Health.", "17. In assessing the amount of damages to be awarded to the applicant, the court said: “The non-pecuniary damage [in this case] amounted to encroachment upon the identity, honour and dignity of [the applicant, and to] daily psychological and physical discomfort when using a bucket for sanitary needs. [The applicant] failed to establish the extent to which that affected [him] psychologically and caused him to suffer morally. Neither every unpleasant sensation or feeling nor every episode of depression can give rise to an entitlement to receive compensation for non-pecuniary damage. In view of that, in determining the amount of compensation the court takes into account the subjective feelings characteristic of an individual of that age, sex and state of health, as well as [the applicant's] personality, and concludes that [his] psychological sphere was affected in a way and to a degree typical for any person placed in the same situation.", "There is no indication that [the applicant's] physical or psychological health worsened as a result of the defendant's unlawful failure to act.” 18. The court also emphasised that the claim concerned a long period, lasting from 8 March 2000 to 27 October 2004. On the basis of those considerations, it awarded the applicant BGN 250 (the equivalent of 128 euros (EUR)). 19. As it dismissed part of the claim, the court ordered the applicant to pay a court fee in the amount of BGN 150, which represented a percentage of the dismissed part (see paragraph 26 below).", "Thus, the sum that the applicant was to receive came to BGN 100 (the equivalent of EUR 51). 20. On 9 August 2005 the applicant appealed, claiming a higher amount in damages. 21. In a final judgment of 6 January 2006 the Lovech Regional Court upheld the district court's judgment, fully agreeing with its reasoning and saying that “no evidence [had been] presented for any specific damage or deterioration of [the applicant's] state of health or psychological well‑being”.", "II. RELEVANT DOMESTIC LAW A. Enforcement of sentences 22. The 1969 Enforcement of Sentences Act, in force until 1 June 2009, provided for different detention regimes for prisoners. Under section 127b, inmates who served a sentence of life imprisonment were to be initially detained under a “special regime”, which could later be modified into a less strict one.", "23. Regulation 56 of the Act's implementing regulations, in force until 1 February 2010, specified that inmates detained under a “special regime” were to be kept in closed premises and under reinforced security. 24. By Article 36 § 2 of the Criminal Code, punishments cannot have as their aim “causing physical suffering or degrading human dignity”. An identical prohibition was contained in section 2(2) of the 1969 Enforcement of Sentences Act.", "B. State liability for damages 25. Section 1(1) of the 1988 Act originally called the State Responsibility for Damage Caused to Citizens Act, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act (“the 1988 Act”) provides that the State is liable for damage caused to private or legal persons by illegal orders, actions or omissions of government or municipal bodies and officials acting within the scope of, or in connection with, their administrative duties. Under section 4, the compensation awarded should cover all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act of omission. 26.", "Under section 10(2), as worded until May 2008, no court fees or costs were payable by the claimant upon the bringing of a claim. However, if the claim was eventually wholly or partly dismissed, the court was to order the claimant to pay “the court fees and costs due”. The courts interpreted that provision as meaning that claimants should pay court fees calculated as a pro rata percentage of the dismissed part of their claims. In May 2008 that provision was superseded by a new section 9a, which provides for a flat-rate fee for bringing a claim under the Act. III.", "Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) 27. The CPT has not visited Lovech Prison. During its visits to other prisons in Bulgaria, it noted the use of buckets by prisoners for sanitary needs. Finding this practice “unacceptable”, it several times recommended that it be discontinued (see, for example, paragraphs 73 and 77 of the report on its 2006 visit to Bulgaria (CPT/Inf (2008) 11), concerning Sofia Prison, and paragraphs 82, 87 and 118 of the report on its 2002 visit to Bulgaria (CPT/Inf (2004) 21), concerning Burgas and Pleven Prisons). 28.", "In the report on its 2008 visit (CPT/Inf (2010) 29) the CPT examined the situation of prisoners serving life imprisonment in Sofia Prison and expressed concern as to the legal provisions in force whereby such prisoners were systematically subjected to “special regime” for an initial period of time. It recommended that this practice be reviewed. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 29. The applicant complained that the conditions in Lovech Prison were degrading, 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.” 30.", "The applicant complained further that he had not had effective remedies in respect of the conditions of his detention. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. The Court considers that this complaint falls to be examined solely under 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.” 31. The Government pointed out that the applicant had already been awarded damages in the domestic proceedings on account of the poor living conditions in Lovech Prison for the period from 8 March 2000 to 27 October 2004.", "They argued that he had failed to exhaust domestic remedies, as it had been open for him to seek damages in respect of his remaining stay in that prison. Furthermore, the Government were of the view that the suffering inflicted on the applicant had not reached the minimum level of severity required under Article 3 of the Convention. Lastly, they pointed out that following a refurbishment of Lovech Prison in the autumn of 2008 the cells had been equipped with sanitary facilities. 32. Furthermore, without putting forward any specific arguments, the Government argued that there had been no violation of Article 13.", "33. The applicant contested those arguments. He considered that the amount awarded in response to his claim had been inadequate. He argued that the conditions of his detention had amounted to inhuman and degrading treatment, which had also been recognised by the domestic courts. 34.", "Under Article 13, the applicant pointed out that he had used a remedy which was available in principle, namely a claim under the 1988 Act. However, even though the domestic courts had acknowledged that he had been detained in degrading conditions, they had awarded him the equivalent of EUR 51, which, in his view, did not amount to adequate compensation. Referring to Iovchev v. Bulgaria (no. 41211/98, 2 February 2006), the applicant contended that the domestic courts' formalistic approach, under which, while finding that the conditions of his detention were inhuman and degrading, they required separate proof that he had suffered on account of them, had deprived that remedy of any effectiveness that it may have had in principle. A.", "The period from 8 March 2000 to 27 October 2004 1. Admissibility (a) Article 3 of the Convention 35. The Court observes that the applicant brought a claim under section 1 of the 1988 Act in respect of the conditions of his detention during that period. The claim was partly allowed and resulted in an award of damages (see paragraphs 12-21 above). The question therefore arises whether the applicant can still be considered a victim of a violation of Article 3 in respect of that period.", "Even though they did not phrase it explicitly, the Government did raise such an argument, as they referred to the fact that the applicant had been awarded compensation (see paragraph 31 above). 36. The question whether an applicant can claim to be a victim of an alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see, among other authorities, Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III). That question essentially entails on the part of the Court an ex post facto examination of the applicant's situation.", "A decision or measure of the domestic authorities favourable to the applicant is in principle not sufficient to deprive him or her of his or her status as a victim unless those authorities have acknowledged, and then afford adequate redress for, the breach of the Convention (see, as a recent authority, Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20 July 2010). 37. On the basis of developments in the Bulgarian courts' case-law since 2003, the Court has accepted that a claim under section 1 of the 1988 Act is in principle an effective remedy for poor conditions of detention and is capable of providing adequate compensation to persons who have been kept in such conditions (see Hristov v. Bulgaria (dec.), no.", "36794/03, 18 March 2008; Kirilov v. Bulgaria, no. 15158/02, §§ 43-48, 22 May 2008; Shishmanov v. Bulgaria, no 37449/02, §§ 58-62, 8 January 2009; Titovi v. Bulgaria, no. 3475/03, § 34, 25 June 2009; Simeonov v. Bulgaria, no. 30122/03, §§ 43-47, 28 January 2010; and Georgiev v. Bulgaria (dec.), no. 27241/02, 18 May 2010).", "Indeed, the applicant in the instant case brought such a claim. However, the Court is not persuaded that it provided him adequate redress, for the following reasons. 38. Firstly, the domestic courts, while acknowledging that the conditions of the applicant's detention were in breach of Article 3 of the Convention and had continued for a long time, awarded him a much lesser amount than the one that he sought, on the sole ground that he had failed to adduce evidence that he had suffered damage. The Lovech District Court stated that there was no indication that the applicant's physical or psychological health had worsened (see paragraph 17 above).", "The Lovech Regional Court endorsed that reasoning, finding that no evidence had been presented to show that the applicant had suffered “any specific damage or deterioration of [his] state of health or psychological well-being” (see paragraph 21 above). The courts did not consider that the evidence proving that the conditions in Lovech Prison were poor could also serve as proof that the applicant had endured non‑pecuniary damage – such as stress, anxiety and frustration – on their account. Instead, they apparently expected separate, extrinsic evidence of such damage. As a result, the applicant was awarded BGN 250 (the equivalent of EUR 128) (see paragraph 18 above). 39.", "In Iovchev v. Bulgaria (cited above, § 146) the Court, faced with a similar situation, held that such a formalistic approach could render a claim under section 1 of the 1988 Act ineffective as a remedy. It observed that as a result of that approach, in cases where the non‑pecuniary damage stemming from poor conditions of detention cannot be established on the basis of objective, extrinsic proof, the persons concerned would not be awarded compensation for conditions of detention that are in breach of Article 3. While, unlike Mr Iovchev, the applicant in the present case was awarded a small amount, in view of the developments outlined in the preceding paragraph the Court sees no reason to reach a different conclusion. 40. Moreover, the applicant did not receive even that amount.", "While he was awarded BGN 250 in damages, he had to pay BGN 150 in court fees due in respect of the dismissed part of his claim, ultimately receiving only BGN 100 (the equivalent of EUR 51). The fees were calculated in line with the rule laid down in section 10(2) of the 1988 Act (see paragraphs 19 and 26 above). In Stankov v. Bulgaria (no. 68490/01, §§ 59 and 67, ECHR 2007‑VIII) the Court found that that rule often resulted in a disproportionate restriction of the right of access to a court of litigants whose claims were in principle justified. Like Mr Stankov, the applicant cannot be criticised for having claimed an excessive sum, as there is no indication that at the relevant time there existed a well-developed and accessible case-law which might have assisted him in determining the likely quantum of an award in respect of poor conditions of detention (see also, mutatis mutandis, Slavcho Kostov v. Bulgaria, no.", "28674/03, §§ 62 and 63, 27 November 2008). 41. An applicant's status of a victim of a violation of Article 3 may depend on the level of compensation awarded at domestic level (see Gäfgen v. Germany [GC], no. 22978/05, § 118, ECHR 2010‑..., and Ciorap (no. 2), cited above, §§ 18 and 24).", "In other contexts, the Court has accepted that awards that are lower than those that it would make but consonant with the legal tradition and the standard of living in the country concerned – but not unreasonably low – may be sufficient to deprive applicants of their victim status (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 206, ECHR 2006‑V, and Simaldone v. Italy, no. 22644/03, § 30, ECHR 2009‑... (extracts)). However, the award in the present case did not meet that condition.", "It was unreasonably low, especially considering that it was intended to provide reparation for a period lasting more than four years (see, mutatis mutandis, Ciorap (no. 2), cited above, §§ 24 and 25). The Court concludes that it failed to provide the applicant adequate redress and deprive him of his victim status. 42. The Court further considers that the complaint under Article 3, in so far as it concerns that period, is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds.", "It must therefore be declared admissible. (b) Article 13 of the Convention 43. The Court considers that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 2. Merits (a) Article 3 of the Convention 44.", "Restatements of the general principles concerning the examination of 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)), Orchowski v. Poland (no. 17885/04, §§ 119-229, ECHR 2009‑... (extracts)) and Norbert Sikorski v. Poland (no. 17599/05, §§ 126‑31, 22 October 2009). 45.", "The Court notes that the complaint examined here concerns the period from 8 March 2000 to 27 October 2004, that is, a period of four years, seven months and nineteen days. 46. For a part of that period, that is, after 27 November 2003, the applicant was detained under a “special regime”, which required that he be kept in closed premises and under reinforced security (see paragraphs 7 and 23 above). 47. Initially, the applicant was kept in an individual cell measuring four square metres and later in a larger cell measuring 12.6 square metres.", "The cell was not equipped with toilet facilities or sinks and the inmates were allowed to go to the toilet and to wash three times a day, for ten minutes each time. Outside those periods, if they needed to relieve themselves they had to use a plastic bucket, which they could empty and clean when going to the toilet (see paragraph 8 above). 48. The Court notes that the district court judges who dealt with the applicant's claim personally inspected those cells and on the basis of that inspection and other evidence found that the conditions of the applicant's detention amounted to degrading treatment. They also found that having to relieve oneself in a bucket in the presence of other inmates, in a small cell without sufficient ventilation, was not compatible with the requirements of Article 3 (see paragraphs 13-15 above).", "That ruling was later upheld by the Lovech Regional Court (see paragraph 21 above). 49. The Court sees no reason to depart from the domestic courts' findings (see, mutatis mutandis, Ciorap (no. 2), cited above, §§ 22 and 23). Although they were apparently referring only to the period when the applicant shared a cell, the Court sees no reason not to extend that conclusion to the time when he was kept in an individual cell (see paragraph 8 above).", "It is true that in Kehayov v. Bulgaria (no. 41035/98, § 71, 18 January 2005), it held that “subjecting a detainee to the humiliation of having to relieve himself in a bucket in the presence of other inmates can have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk”. However, later, in Malechkov v. Bulgaria (no. 57830/00, § 140, 28 June 2007), the Court said that “despite [of his or her] being accommodated alone in a cell, subjecting a detainee to the inconvenience of having to relieve himself in a bucket cannot be deemed warranted, except in specific situations where allowing visits to the sanitary facilities would pose concrete and serious security risks”. 50.", "The CPT, in its reports on Bulgaria, also found that the practice was “unacceptable” (see paragraph 27 above). It cannot be overlooked that the applicant remained in such conditions for a considerable period of time (see paragraph 45 above). 51. The foregoing considerations are sufficient to enable the Court to conclude that between 8 March 2000 and 27 October 2004 the applicant was detained in degrading conditions in Lovech Prison. It does not therefore find it necessary to assess whether, as the applicant contended, the food provided in that prison was of poor quality.", "It notes that the domestic courts dismissed that allegation as unsubstantiated (see paragraphs 16 and 21 above), whereas that the applicant has not presented any evidence to cast doubt on that finding. 52. There has therefore been a violation of Article 3 of the Convention. (b) Article 13 of the Convention 53. The Court already found that the claim that the applicant brought under section 1 of the 1988 Act, concerning the period from 8 March 2000 to 27 October 2004, failed to provide him adequate redress, chiefly as a result of the domestic courts' excessively formalistic approach (see paragraphs 38-40 above).", "Like in Iovchev (cited above, § 146), the Court considers that as a result of the domestic courts' approach the applicant's claim lost much of its remedial efficacy. Moreover, as it could result only in an award of compensation and could not lead to an improvement of the status quo, it was, on its own, not a remedy capable of providing him adequate redress. As the Court observed in several recent cases which concerned persons who continued to be kept in allegedly poor conditions of detention (see Orchowski, § 109, and Norbert Sikorski, § 116, both cited above; Łatak v. Poland ((dec.), no. 52070/08, §§ 77-85, 12 October 2010; and Łomiński v. Poland (dec.), §§ 68-76, no. 33502/09, 12 October 2010), remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of applicants who have been either released or placed in conditions which meet Convention standards.", "54. The Court finds that the availability of domestic procedures to inmates, aimed at obtaining specific improvements of the conditions of imprisonment, is of crucial importance for the effective protection from inhuman and degrading treatment at the national level, and particularly so in cases concerning long-term imprisonment, where, as indicated in the preceding paragraph, merely awarding damages cannot be deemed as adequate redress. 55. In the present case, on one occasion in 2004 the applicant complained about the conditions of his detention to the prison administration. However, the complaint was later destroyed and the Court has not been informed of any reply on the part of the administration (see paragraph 11 above).", "In any event, the Government did not claim that this complaint had prompted the authorities to take steps to improve the conditions of the applicant's detention. The authorities made improvements in Lovech Prison, but this happened much later, in the autumn of 2008 (see paragraphs 6 and 31 above), and apparently without any connection with the applicant's complaint. The Government did not refer to any specific possibilities for the applicant to initiate procedures and obtain, in so far as his complaints might be well-founded, any practical improvement of the conditions of detention. 56. There has therefore been a violation of Article 13 of the Convention.", "B. The remainder of the applicant's stay in Lovech Prison Admissibility (a) Article 3 of the Convention 57. In respect of the period after 27 October 2004, the Government raised a non-exhaustion objection, because the applicant had not sought damages under the 1988 Act (see paragraph 31 above). 58. In three recent cases which concerned persons who continued to be kept in allegedly poor conditions of detention, the Court dismissed non‑exhaustion objections based on their failure to bring or prosecute to a conclusion claims for damages against the State (see Sławomir Musiał, §§ 77 and 82, Orchowski , §§ 108 and 109, and Norbert Sikorski, § 116, all cited above).", "It explained that remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of applicants who have been either released or placed in conditions which meet Convention standards (see Orchowski, § 109, and Norbert Sikorski, § 116, both cited above). It fully confirmed that position in Łatak, §§ 77-85, and Łomiński, §§ 68-76, both cited above). 59. For the same reason, it can be concluded that as long as the applicant continued to be kept in the same conditions, a claim for damages would not have in itself constituted an effective remedy. However, the Court cannot fail to notice that on 5 November 2008 the applicant was transferred to another prison (see paragraph 6 above).", "He has not complained about the conditions there and has not provided any information about them (see paragraphs 10 and 29 above, and compare with Georgiev and Łatak, §§ 78 and 81, both cited above). A claim under section 1 of the 1988 Act cannot therefore be ruled out as ineffective under the above-mentioned test. Nor can it be considered devoid of any prospect of success. It is true that, as a result of the courts' approach, the applicant's claim concerning his stay in prison before 27 October 2004 did not result in an adequate amount of compensation (see paragraphs 38-40 above). However, it cannot be overlooked that, in view of the general state of the domestic courts' jurisprudence, claims under section 1 of the 1988 Act are as a rule an effective avenue of redress in respect of poor conditions of detention (see paragraph 37 above).", "In those circumstances, the Court is not persuaded that a second claim by the applicant would have likewise failed to provide him adequate redress. The applicant has not brought such a claim. 60. It follows that, in so far as it concerns the applicant's detention in Lovech Prison after 27 October 2004, the complaint under Article 3 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. (b) Article 13 61.", "In view of its finding that the applicant did have an effective remedy in respect of his complaint under Article 3, and bearing in mind the close affinities between Article 13 and Article 35 § 1 of the Convention, the Court concludes that the applicant's complaint under Article 13 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see Slimani v. France, no. 57671/00, § 42, ECHR 2004‑IX (extracts)). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 63. The applicant claimed EUR 45,000 in respect of non-pecuniary damage, pointing out that his detention in conditions contrary to Article 3 of the Convention had continued for a very long period of time. 64. The Government contested this claim. 65.", "The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the breaches of his rights found in the case. The Court considers it reasonable to award the amount which the applicant sought before the domestic courts, namely BGN 3,000, the equivalent of EUR 1,530, taking also into account that its finding of a violation of Article 3 was only based on the applicant's having to use buckets for sanitary needs in the prison (see paragraphs 44-52 above). To this should be added any tax that may be chargeable. B. Costs and expenses 66.", "The applicant also claimed EUR 200 for costs and expenses. 67. The Government urged the Court to dismiss this claim, pointing out that it was not supported by any documents. 68. According to the Court's case‑law, applicants are entitled to the 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.", "To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulates that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. In the present case, noting that the applicant has failed to produce any documents in support of his claim, the Court does not make any award under this head. C. Default interest 69. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application, in so far as it concerns the applicant's detention from 8 March 2000 to 27 October 2004, admissible and the remainder inadmissible; 2. Holds that in respect of the period from 8 March 2000 to 27 October 2004 there has been a violation of Article 3 of the Convention; 3. Holds that in respect of the period from 8 March 2000 to 27 October 2004 there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,530 (one thousand five hundred and thirty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Bulgarian levs 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 claims for just satisfaction.", "Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FOURTH SECTION CASE OF PLECHANOW v. POLAND (Application no. 22279/04) JUDGMENT (Merits) STRASBOURG 7 July 2009 FINAL 07/10/2009 This judgment may be subject to editorial revision. In the case of Plechanow v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 16 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22279/04) 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 three Polish nationals, Mr Jerzy Plechanow, Ms Ariadna Plechanow and Mr Andrzej Plechanow (“the applicants”), on 3 June 2004.", "2. The applicants were represented by Ms M. Lechna-Piotrowska, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicants alleged, in particular, that they were deprived of a fair trial on account of the Supreme Court’s refusal to examine their cassation appeal (Article 6); they also complained about the alleged breach of their property rights (Article 1 of Protocol No.", "1). 4. On 11 December 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.", "The applicant and the Government filed observations on the admissibility and merits of the application (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 1. Background to the case 6. The applicants, Jerzy, Ariadna and Andrzej Plechanow, are Polish nationals who were born in 1953, 1924 and 1955 respectively and live in Warszawa.", "7. The applicants’ predecessor owned a plot of land with a residential building situated in Warsaw. The applicants are his heirs. 8. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw.", "9. The applicants’ predecessor requested to be granted the right of temporary ownership (własność czasowa) of the property pursuant to section 7 of the 1945 Decree. 10. On 6 January 1964 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request. The Board also stated that the ownership of all buildings situated on the property had been transferred to the State Treasury.", "The property was subsequently divided into smaller plots. 11. Between 1975 and 1992 the State Treasury sold several apartments in the residential building (together with shares in the right of perpetual use of the land) to third parties. 12. In 1991, 1994 and 1995 the Warsaw Governor declared that on 27 May 1990 the Warsaw Municipality had acquired ex lege the ownership of the plots of land and the building thereon (with the exception of the previously sold apartments).", "13. On 12 March 1997 the Board of the Praga-Południe District of the Warsaw-Centre Municipality adopted a resolution on the basis of which it published a list of flats which could be sold to the tenants. In September and November 1997 they sold two apartments. 14. On 5 March 1998 the Praga-Południe District Office informed the applicants of the above resolution and of the possibility of exercising a right of pre-emption in respect of the remaining flats.", "The right of pre-emption had been introduced as from 1 January 1998 on the basis of section 34 of the Act of 21 August 1997 on the management of real estates (ustawa o gospodarce gruntami). 15. On 18 March 1998 the applicants informed the municipality that the third applicant would buy the flat he had occupied so far. At the same time they requested that the further sale of other flats be stayed. They enclosed a decision of the Warsaw District Court of 5 March 1991 declaring them to be heirs of F.P., K.P.", "and P.P. 16. On 17 June 1998 the municipality allowed the applicants’ request. 2. Proceedings in which the applicants sought to have the expropriation decision declared null and void 17.", "On 30 November 1999 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared the decision of 6 January 1964 null and void in respect of part of the property. However, the Board could not annul the decision in respect of the remaining part of the property in question, since the ownership rights to 19 apartments and respective shares in the right of perpetual use of the land had been sold in the meantime to third parties. Thus, in view of the irreversible legal consequences of the 1964 decision, the Board only declared that, in this respect, the decision had been issued in breach of law. 18. The Board noted that the obligations of the Warsaw National Council resulting from a breach of law had been taken over by the Warsaw Municipality.", "19. The Board further noted that its decision entitled the applicants to seek compensation for damage caused by the administrative decision having been issued in breach of law. 3. Proceedings for compensation under Article 160 of the Code of Administrative Procedure 20. In March 2000 the applicants lodged compensation claims with the Mayor of the Warsaw District (Starosta Powiatu Warszawskiego) and the President of Warsaw in respect of the relevant 19 apartments.", "21. On 9 June 2000 the Mayor of the Warsaw District transferred the claim to the Warsaw Local Government Board of Appeal in view of the latter organ’s competence. In November 2000 and December 2000 the Board issued several decisions concerning particular apartments in which it refused to award compensation. 22. On 21 December 2000 the applicants lodged compensation claims with the Warsaw Regional Court against the Warsaw municipality under Article 160 of the Code of Administrative Procedure.", "23. On 21 March 2002 the Regional Court dismissed the action. The court acknowledged that the applicants had sustained damage as a result of the 1964 decision (the court heard evidence, including an expert witness, who estimated the loss at PLN 1,025,970). However, the court eventually found that the State Treasury should have been sued instead of the municipality. The court noted that according to the Supreme Court judgment of 7 January 1998 the municipality had the legal capacity to be sued for compensation for damage resulting from an administrative decision issued before 27 May 1990.", "However, in the court’s view, this interpretation had become obsolete in view of the subsequent interpretation of section 36 of the Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych). 24. On 19 June 2002 the applicants’ lawyer lodged an appeal. He referred inter alia to the Supreme Administrative Court resolution of 15 April 1996, OPK 9/96, which, in his opinion, justified the responsibility of the local government administration in the present case. In this context he also invoked section 36 § 2 of the 1990 Local Government (Introductory Provisions) Act and relied on the judgment of the Supreme Court of 7 January 1998 arguing that the first‑instance court had been wrong to consider the judgment obsolete.", "25. On 11 April 2003 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court upheld the lower court’s arguments, finding that the State Treasury should have been sued for damages because the Governor (the State’s administration body) was the legal successor of the National Council. 26. The applicants lodged a cassation appeal.", "They submitted, inter alia, that the judgment was in breach of relevant substantive law on account of an erroneous interpretation and application of the provisions of the Local Government Act. They also invoked Article 393 of the Code of Civil Procedure arguing that the examination of the cassation appeal was justified because: - the case raised a significant legal issue (i.e. the question to what extent and in respect of which competences the obligations of the national councils had been taken over by communities), and - the need for an authoritative interpretation of provisions which had been interpreted differently in the courts’ case-law (in particular section 36 § 3 of the 1990 Local Government (Introductory Provisions)), and - the need to clarify the inconsistency of the Court of Appeal’s judgment with the case-law invoked by the applicants and the alleged guidance provided by the decision of the Local Government Board of Appeal of 30 November 1999. 27. On 10 December 2003 the Supreme Court refused to entertain the cassation appeal.", "The decision was taken by a single judge sitting in camera. The written reasons provided as follows: According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1). In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal. 28. On 8 March 2004 the applicants lodged a constitutional complaint with the Constitutional Court, alleging a breach of their right of access to court and to a fair hearing on account of an erroneous application of Article 393 of the Code of Civil Procedure.", "29. On 19 July 2005 the Constitutional Court discontinued the proceedings on the grounds that it had already examined the same issue in its judgment of 31 March 2005 (SK 26/02). 4. Proceedings under Article 7 of the 1945 Decree 30. On 3 March 2000 the applicants requested the Mayor of Warsaw to grant them the right of perpetual use of the remaining apartments which had not been sold.", "They relied on the decision of the Warsaw Local Government Board of Appeal of 30 November 1999. 31. On 25 April 2002 the applicants’ lawyer submitted a certificate of the mortgage writer (pisarz hipoteczny) of 24 November 1937 certifying the ownership title of F.P. on that day. 32.", "The proceedings are pending. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Relevant provisions concerning a cassation appeal 33. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second‑instance court.", "A party had to be represented by an advocate or a legal adviser. 34. Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 35. Article 3933 specified the requirements of a cassation appeal.", "It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 36. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. 37.", "Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons. 38. On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000.", "It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal): “§ 1. The Supreme Court may refuse to entertain the cassation appeal, if: 1) there is no appearance of any significant legal issue in the case, 2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law, 3) the appeal is manifestly ill-founded. § 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.” 39. Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera, in a single judge formation.", "40. Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case. 41. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions governing the cassation appeal. 2.", "The judgment of the Constitutional Court 42. In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure. 43. The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice. 44.", "The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the case‑law of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal. 45.", "According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body. 46. In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better-tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application.", "This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances. 47. The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent.", "The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future. 48. Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements.", "The right of access to a court had thus been transformed into a pretence of this right. 49. Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment.", "50. Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect. 3. The individual constitutional complaint 51. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 52.", "Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3.", "A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 53. Article 39 of the Constitutional Court Act reads: “1.", "The Court shall, at a sitting in camera, discontinue the proceedings: 1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible; 2) in consequence of the withdrawal of the application, question of law or constitutional complaint; 3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal. 2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings. 3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.” 4.", "Re-opening of civil proceedings following a judgment of the Constitutional Court 54. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court. 5. The 1945 Decree on real property in Warsaw and the Local Government Act of 10 May 1990 55.", "The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw. 56. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. 57. A very significant reduction in the State Treasury’s land resources was brought about by legislative measures aimed at reforming the administrative structure of the State.", "58. The Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. 59. Section 36 § 3 (3) of the Act provides, as far as relevant: “The State Treasury takes over: 3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).” 6.", "Compensation for damage caused by an administrative decision subsequently annulled or declared null and void 60. Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws. 61. Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part: “A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual damage, unless he has been responsible for the circumstances mentioned in this provision.” 62.", "An administrative decision in respect of the compensation claim could be appealed against in a civil court. 7. Resolution and judgments of the Supreme Administrative Court and the Supreme Court concerning the legal capacity to be sued 63. In its resolution adopted on 11 December 1995 (VI SA 9/95) the Supreme Administrative Court concluded that disputes instituted under Article 7 of the Decree of 26 October 1945 concerning the right of perpetual use of a plot of land presently owned by the municipality, should be resolved by a competent mayor [a local government body]. 64.", "Section 36 § 3 (3) of the 1990 Act raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform. The problem was subject to divergent judicial interpretation. 65. On 7 January 1998 the Supreme Court delivered a judgment (II CKN 550/97) in which it concluded that the municipality should be sued for compensation for damages caused by an administrative decision delivered before 27 May 1990. 66.", "On 16 November 2004 a panel of three judges of the Supreme Court adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date. 67. In its resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date.", "The resolution was adopted following a legal question referred to the Supreme Court by another Court of Appeal having a similar case before it. 68. The Supreme Court confirmed this stance in several subsequent judgments, delivered in cases similar to the present one (see below). 8. Examples of subsequent jurisprudence of the domestic courts a.", "Judgment of the Supreme Court of 25 January 2007, ref no. V CSK 425/06 69. On 21 March 2001 the Opolskie Governor declared that the decision of 1983 of the Head of municipality D. had been adopted in breach of law. The plaintiff’s claim for compensation against the State Treasury (Opolskie Governor) was dismissed by the first- and second-instance courts. In particular, the Court of Appeal, invoking the resolution of the Supreme Court of 16 November 2004 (ref no.", "Ill CZP 64/04), considered that the State Treasury did not have the legal capacity to be sued in that case since municipality D. had taken over its obligations under Article 36 § 1 of the 1990 Introductory Provisions Act. The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006. b. Judgment of the Supreme Court of 14 March 2007, ref no. I CSK 247/06 70. In 1951 the Presidium of the Warsaw National Council refused to grant the right of perpetual use of land covered by the operation of the 1945 Decree.", "Subsequently, the State Treasury sold three flats in the building. On 22 September 1994 the Minister of Construction declared that the decision of 1951 had been adopted in breach of law. The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed their claim in part and awarded compensation from the State Treasury. On 31 January 2006 the Warsaw Court of Appeal amended the first-instance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case.", "On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006. 9. Resolution and judgment of the Supreme Court concerning the character of the compensation claim 71. In its judgment of 27 November 2002 (no. I CKN 1215/00), the Supreme Court ruled that there was a causal link between an administrative decision, taken under the 1945 Decree, refusing to grant the previous owner of a real property (a land with a building) the right of temporary ownership (perpetual use) of that property and the sale of apartments in the building by the State Treasury.", "72. On 21 March 2003 the Supreme Court adopted a resolution (no. III CZP 6/03) in which it found that financial loss resulting from a decision under the 1945 Decree refusing to grant the right of perpetual use, which had been issued in breach of law, constituted a loss within the meaning of Article 361 § 2 of the Civil Code and an actual damage within the meaning of Article 160 of CAP. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION AND ARTICLES 6 AND 13 OF THE CONVENTION 73. The applicants complained under Article 1 of Protocol No. 1 and under Article 6 of the Convention that as a result of the shortcomings in the decisions of the domestic courts and the lack of legal certainty, they were deprived of compensation for damage caused by an unlawful administrative decision. 74. The applicants also complained under Articles 6 and 13 of Convention that they were deprived of a fair hearing (in particular that they were denied access to a court) and an effective remedy in respect of their allegations under Article 1 of Protocol No.", "1 in that the Supreme Court had refused to entertain their cassation appeal without giving adequate reasons. 75. These provisions provide in their relevant part: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Compatibility ratione temporis 76. The Government submitted that the complaints should be rejected as being incompatible ratione temporis with the provisions of Article 1 of Protocol No. 1. They submitted that the damage suffered by the applicants had been caused by the decision of 1964 and therefore constituted an instantaneous act which had occurred before 10 October 1994 (the date of entry into force of Protocol No.", "1 in respect of Poland). They further argued that according to a recent interpretation of the relevant law, the 1999 decision of the Local Government Board of Appeal (see paragraph 17 above) only opened a possibility of seeking compensation for the damage caused in 1964. 77. The applicants maintained that the violations in question were of a continuing nature. 78.", "The Court’s jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. After ratification, the State’s acts must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10 October 1994, the date of ratification of Protocol No. 1 by Poland.", "It may, however, have regard to facts prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Hutten‑Czapska v. Poland [GC], no. 35014/97, §§ 147‑153, ECHR 2006‑...). 79. The Court notes that the applicants’ complaint does not concern a deprivation of property by virtue of the decision of 1964. In the present case, the applicants complain about the inability to effectively enforce their compensation claim stemming from the fact that the 1964 decision had been issued in breach of law.", "Even if the entitlement to compensation had been created by the original interference (namely the adoption of the flawed 1964 decision), the 1999 ruling of the Local Government Board of Appeal confirmed their entitlement and enabled the applicants to seek redress for the interference. Therefore, in so far as the applicants’ complaints are directed against the acts and omissions of the State in relation to the enforcement of the compensation claim to which they were entitled under Polish law – an entitlement which continued to exist after 10 October 1994 having regard to the above-mentioned 1999 ruling – the Court has temporal jurisdiction to entertain that complaint (cf. Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 75-76, ECHR 2002-X; Vajagić v. Croatia, no. 30431/03, § 24, 20 July 2006).", "80. The Government’s objection must therefore be dismissed. 2. Compatibility ratione materiae – existence of possessions within the meaning of Article 1 of Protocol No. 1 81.", "The Government argued that the complaints were also incompatible ratione materiae with the Convention, as the applicants had not proved that they had any “possessions” within the meaning of Article 1 of Protocol No. 1. They submitted that the Convention did not guarantee a right to the return of property which had been expropriated before the date of ratification of the Convention. Further, the fact that the applicants were entitled to pursue a claim for compensation under Article 160 of the CAP did not mean that they had a “legitimate expectation of obtaining effective enjoyment of a property right”. In this respect they argued that the applicants had not obtained a ruling confirming, in particular, that they had sustained damage and that there was a causal link between the adoption of the flawed administrative decision and the damage.", "Moreover, the applicants could not have expected to have their claim allowed if they had sued the wrong defendant. 82. The applicants did not comment. 83. The Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No.", "1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. Accordingly, as well as physical goods, certain rights and interests constituting assets may also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he has at least “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). Where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (Kopecký v. Slovakia [GC], no. 44912/98, §§ 52, ECHR 2004‑IX; Draon v. France [GC], no. 1513/03, § 68, 6 October 2005; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, 11 January 2007).", "Where that has been established, the concept of “legitimate expectation” can come into play, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a final judicial decision (see Draon, cited above, § 65, and Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 73, ECHR 2002-VII). 84. Turning to the circumstances of the present case the Court observes that in the 1999 ruling the Local Government Board of Appeal established that the 1964 decision had been issued in breach of law and this fact entitled the applicants to seek compensation for damage. The Court notes that the entitlement was expressly provided for in domestic law and the domestic courts’ established case-law confirmed the existence of a casual link between a flawed administrative decision and loss sustained in result thereof (see paragraphs 71-72 above).", "Only the extent of the alleged loss and the amount of compensation remained to be established in judicial proceedings. Therefore, in the Court’s view, the applicants could be considered to have a “legitimate expectation” that their claim would be dealt with in accordance with the applicable laws and, consequently, upheld (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, § 31; S.A. Dangeville v. France, no. 36677/97, § 46 48, ECHR 2002‑III). 85.", "Accordingly, the applicants had a pecuniary interest which was recognised under Polish law and which was subject to the protection of Article 1 of Protocol No. 1. 86. It is true that the existence of such a claim does not exempt the applicants from pursuing that claim diligently and suing the appropriate defendant. This issue, however, goes to the merits of the case and shall be examined at that stage.", "87. Accordingly, the Government’s objection in this regard must be dismissed. 3. Compatibility ratione personae 88. In the Government’s opinion, the applicants failed to submit to the Court documents proving their standing in the present case – they did not prove their status as legal successors of F.P.", "and also failed to submit documents proving F.P’s title to the property at issue. Consequently, in the Government’s view, the present complaint should be rejected as incompatible ratione personae with the Convention and the Protocol at issue. 89. The Court reiterates that the applicants’ complaint does not concern the deprivation of property but their claim for damages. The Court notes that the applicants were parties to the compensation proceedings, as well as to the proceedings in which they sought to have the 1964 decision declared null and void.", "Their legal standing in both sets of proceedings was never disputed (see paragraphs 15 and 31 above). 90. Accordingly, the Court rejects the Government’s objection. 4. Compliance with the six month rule 91.", "The Government further requested the Court to reject the application for non-compliance with the six months’ time-limit. In their view, the applicants should have lodged their application with the Court following the decision of the Local Government Board of Appeal of 30 November 1999. 92. The Court observes that the applicants lodged their application within six months of the decision of the Supreme Court of 10 December 2003, which constituted the final decision in the compensation proceedings. The Court therefore concludes that they have filed their application within the six months’ time-limit as required by Article 35 § 1 of the Convention and accordingly rejects the Government’s objection.", "5. Exhaustion of domestic remedies 93. Finally, the Government submitted that the applicants had not exhausted domestic remedies. In this context they argued, in particular, that the applicants had not availed themselves properly of the possibility to seek compensation under Article 160 of the CAP, since they had sued the municipality instead of the State Treasury. 94.", "The Court considers that this objection is closely linked to the substance of the applicant’s complaint and that its examination should therefore be joined to the merits. 6. Conclusion 95. The Court will join to the merits the Government’s objection to admissibility based on non-exhaustion of domestic remedies. It notes that the applicants’ complaints under the provisions relied on are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 1 of Protocol No.", "1 a. The parties’ submissions 96. The applicants complained that as a result of the shortcomings in the decisions of the domestic courts and the lack of legal certainty, they were deprived of compensation to which they were entitled under domestic law. They alleged that the domestic courts unfairly dismissed their claim on the grounds that they had not sued the right legal entity, without giving proper consideration to the case-law invoked by them. The applicants further submitted that the Supreme Court had refused to entertain their cassation appeal although the applicants had indicated that all statutory requirements justifying the examination of the cassation appeal on the merits had been met, in particular there was a need for interpretation of a significant legal issue causing discrepancies in the courts’ case-law.", "97. The Government contested those arguments. They referred to the Supreme Court resolution of 7 December 2006 and subsequent jurisprudence and claimed that the Supreme Court’s decision could not have had any negative consequences for the applicants, as in accordance with later jurisprudence, their claim directed against the municipality was bound to be dismissed. The Government further submitted that neither the Convention nor the Polish Constitution guaranteed a right to have a civil case examined by three judicial instances. Nevertheless, the Government were of the view that the Supreme Court’s so‑called “pre-judgment” practice pursued the legitimate aim of expediting the examination of non-meritorious appeals.", "They also argued that the applicants had not sufficiently proved the alleged discrepancies in the case-law. Lastly, they stated that it was not for the Government or the Court to assess whether the cassation appeal had been meritorious or whether the Supreme Court’s decision had been sufficiently reasoned. b. The Court’s assessment i. Existence of possessions within the meaning of Article 1 of Protocol No.", "1 98. The Court has found that the applicants’ claim “constituted an asset” and therefore amounted to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1, which is accordingly applicable in the present case. ii. Compliance with Article 1 of Protocol No.", "1 99. The Court reiterates that the genuine, effective exercise of the right protected by Article 1 of Protocol No. 1 does not depend merely on the State’s duty not to interfere, but may give rise to positive obligations (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004-XII, and Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004-V; Blumberga v. Latvia, no.", "70930/01, § 65, 14 October 2008). 100. Such positive obligations may entail the taking of measures necessary to protect the right to property, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions, even in cases involving litigation between private entities. This means, in particular, that States are under an obligation to provide a judicial mechanism for settling effectively property disputes and to ensure compliance of those mechanisms with the procedural and material safeguards enshrined in the Convention. This principle applies with all the more force when it is the State itself which is in dispute with an individual.", "Accordingly, serious deficiencies in the handling of such disputes may raise an issue under Article 1 of Protocol No. 1. 101. In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”.", "It must look behind appearances and investigate the realities of the situation complained of. 102. While they have a wide margin of appreciation in assessing the existence of a problem of public concern warranting specific measures and in implementing social and economic policies (see Kopecký, cited above, § 37), where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler, cited above, §§ 110 in fine, 114 and 120 in fine; Broniowski, cited above, § 151; Sovtransavto Holding, cited above, §§ 97-98; Novoseletskiy v. Ukraine, no. 47148/99, § 102, ECHR 2005-II; Blücher v. the Czech Republic, no. 58580/00, § 57, 11 January 2005; and O.B.", "Heller, a.s., v. the Czech Republic (dec.), no. 55631/00, 9 November 2004). 103. The Court reiterates that the Convention imposes no specific obligation on States to right injustices or harm caused before they ratified the Convention. However, once such a solution has been adopted by a State, it must be implemented with reasonable clarity and coherence, in order to avoid, in so far as possible, legal uncertainty and ambiguity for the persons concerned by the measures to implement it.", "In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is an important factor to be taken into account in assessing the State’s conduct (see Broniowski, cited above, § 151). 104. Turning to the circumstances of the present case, the Court notes that the applicants’ claim failed because, in the domestic courts’ view, they sued the wrong defendant. The applicants lodged their claim against the municipality on the basis of the hitherto prevailing case-law, which the courts considered later to be obsolete. 105.", "The Court further observes in this context that numerous court actions, such as those instituted by the applicants, have been brought before domestic courts. Due to several major administrative reforms which had been implemented in Poland during the past fifty years, the courts have been required to determine the authority responsible for taking over the competencies of bodies which had existed previously. The interpretation of provisions of relevant laws introducing the administrative reforms have constantly changed, which has led to varying judicial rulings by different domestic courts on the same legal question (see paragraphs 63-70 above). As a result, the case-law at the domestic level, including the Supreme Court judgments and resolutions, has often been contradictory. 106.", "The examples of the case-law submitted both by the applicants and the Government show that the question of liability for damages resulting from flawed administrative decisions was by no means clear at the time the applicants’ claim was examined and the divergences in case-law continued several years later (see paragraphs 69-70 above). 107. The Court has already held that divergences in case-law are an inherent consequence of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction, and that the role of a supreme court is precisely to resolve conflicts between decisions of the courts below (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999-VII). In the instant case, however, even the Supreme Court failed to have a uniform case-law on the legal questions in issue (see paragraphs 65-68 above).", "108. The Court does not deny the complexity of the problems with which the courts were faced as a result of the fundamental changes in the competencies of all the various authorities at the local and State administrative levels. It considers, however, that shifting the duty of identifying the competent authority to be sued to the applicants and depriving them of compensation on this basis was a disproportionate requirement and failed to strike a fair balance between the public interest and the applicants’ rights. 109. In the Court’s view, when a public entity is liable for damages, the State’s positive obligation to facilitate identification of the correct defendant is all the more important.", "110. In the Court’s opinion, the applicants seem to have fallen victims of the administrative reforms, the inconsistency of the case-law and the lack of legal certainty and coherence in this respect. As a result, the applicants were unable to obtain due compensation for damage suffered. 111. In the light of the foregoing, the Court considers that the State has failed to comply with its positive obligation to provide measures safeguarding the applicants’ right to the effective enjoyment of their possessions as guaranteed by Article 1 of Protocol No.", "1, thus upsetting the “fair balance” between the demands of the public interest and the need to protect the applicants right (see, mutatis mutandis, Sovtransavto Holding, cited above, § 96). 112. Consequently, there has been a violation of Article 1 of Protocol No. 1 and the Government’s objection based on non-exhaustion of domestic remedies (see paragraphs 93 and 94 above) must accordingly be rejected. 2.", "Articles 6 and 13 of Convention 113. Having regard to the particular circumstances of the present case and to the reasoning which led the Court to find a violation of Article 1 of Protocol No. 1, the Court considers that a separate examination of the merits of the case under Articles 6 and 13 of Convention is not necessary. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 115. The applicants claimed 1,025,970 PLN (approx. 248,010 EUR) in respect of pecuniary and non-pecuniary damage. They did not claim costs and expenses. 116.", "In the Government’s opinion, the applicants failed to prove a causal link between the alleged pecuniary damage and the violations of the Convention and had not substantiated their claim. 117. In the circumstances of the case and having regard to the parties’ submissions, the Court considers that the question of the application of Article 41 of the Convention as regards pecuniary and non-pecuniary damage is not ready for decision and reserves it, due regard being had to the possibility that an agreement between the respondent State and the applicant may be reached (Rule 75 § 1 of the Rules of Court). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s preliminary objection based on non-exhaustion of domestic remedies and declares the application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No 1 to the Convention and dismisses the above-mentioned objection; 3. Holds that there is no need to examine separately the applicants’ complaints under Articles 6 and 13 of the Convention; 4. Holds that as far as any pecuniary and non-pecuniary damage is concerned, the question of the application of Article 41 is not ready for decision and accordingly: (a) reserves the said question; (b) invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the 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 7 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]
[ "THIRD SECTION CASE OF MILOSAVLJEVIĆ v. SERBIA (Application no. 18353/12) JUDGMENT STRASBOURG 27 June 2019 This judgment is final but it may be subject to editorial revision. In the case of Milosavljević v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Dmitry Dedov, President,Alena Poláčková,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 an application against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 March 2012. 2.", "The applicant was represented by Mr Z. Vujović, a lawyer practising in Niš. 3. Notice of the application was given to the Serbian Government (“the Government”). THE FACTS 4. The applicant’s details and information relevant to the application are set out in the appended table.", "5. The applicant complained of the excessive length of administrative proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6. The applicant complained that the length of the administrative proceedings in question had been incompatible with the “reasonable time” requirement.", "She relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 8. In the leading case of Nemet v. Serbia, no.", "22543/05, 8 December 2009, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10.", "These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. II. 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, Nemet v. Serbia, no.", "22543/05, §§ 19-22, 8 December 2009), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicant’s claim for just satisfaction. 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 this application discloses a breach of Article 6 § 1 of the Convention concerning the excessive length of administrative proceedings; 3. Holds (a) that the respondent State is to pay the applicant, 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtDmitry Dedov Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 6 § 1 of the Convention (excessive length of administrative proceedings) Application no.", "Date of introduction Applicant’s name Date of birth Start of proceedings End of proceedings Total length Levels of jurisdiction Relevant domestic decision Domestic award (in euros) Amount awarded for non-pecuniary damage per applicant (in euros)[1] [2] Amount awarded for costs and expenses per application (in euros)[3] 18353/12 20/03/2012 Zorica Milosavljević 08/02/1960 08/04/2005 16/12/2010 5 years and 8 months and 9 days 1 level of jurisdiction Constitutional Court Už-652/2011 6 February 2012 (no violation) 2,300 500 [1]. Plus any tax that may be chargeable to the applicants. [2]. Less any amounts which may have already been paid in that regard at the domestic level. [3].", "Plus any tax that may be chargeable to the applicants." ]
[ "FIFTH SECTION CASE OF SAKSONTSEVA v. UKRAINE (Application no. 31449/04) 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 Saksontseva v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Volodymyr Butkevych,Renate Jaeger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31449/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Zinaida Yakovlevna Saksontseva (“the applicant”), on 19 August 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 30 May 2006 the Court decided to communicate the complaints concerning the non-enforcement of the judgments given in the applicant’s favour and the lack of effective remedies in respect of the length of the enforcement 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 1948 and lives in Lugansk. 5.", "In 1998 the applicant instituted civil proceedings in the Kamyanobrodsky District Court of Lugansk (Кам’янобродський районний суд м. Луганська) against the Procurement Service of the Lugansk City Council Executive Committee (“the Procurement Service,” Госпрозрахунковий відділ служби забезпечення при управлінні контролю Луганського міськвиконкому) seeking reinstatement to the position of human resources inspector (інспектор з кадрів) and various compensatory payments. 6. On 24 November 1998 the court rejected the applicant’s reinstatement claim, but awarded her 438.95 Ukrainian hryvnias (UAH) in salary arrears. 7. On 4 March 1999 the Lugansk Regional Court (Луганський обласний суд)[1] upheld the judgment to the extent that the applicant was awarded salary arrears, and the judgment in this respect became final.", "The court remitted the remainder of the applicant’s claims for fresh consideration. 8. On 2 July 1999 the Kamyanobrodsky District Court ordered the applicant’s reinstatement and additionally awarded her UAH 650 in compensatory payments. 9. On 29 July 1999 the Lugansk Regional Court upheld the reinstatement order and remitted the case for fresh consideration in respect of the monetary claims.", "10. On 5 November 1999 the Kamyanobrodsky District Court awarded the applicant UAH 542.52 (instead of UAH 650). 11. On 10 November 1999 the Kamyanobrodsky District Court additionally awarded the applicant UAH 1,356.30. 12.", "The judgment was enforced in the part relating to the reinstatement. However, the Procurement Service was in the process of liquidation, and on 16 December 1999 the Leninsky District Bailiffs’ Service (“the Bailiffs’ Service,” Відділ Державної виконавчої служби Ленінського районного управління юстиції м. Луганська) transferred the writs of execution to the liquidation commission, having failed to collect the amounts owed to the applicant. 13. On 17 January 2000 the applicant was made redundant as a result of the liquidation of the Procurement Service. 14.", "On 28 March 2000 the Mayor of Lugansk (міський голова) informed the Bailiffs’ Service that the Procurement Service had been liquidated without successors. 15. In January 2001 the applicant instituted civil proceedings in the Leninsky District Court of Lugansk (Ленінський районний суд м. Луганська) against the Procurement Service and the Lugansk City Council Executive Committee (“the Executive Committee,” Луганський міський виконавчий комітет), seeking to oblige them to enforce the judgments given in her favour and to provide her with various additional compensatory payments. 16. On 30 August 2001 the court partly allowed the applicant’s claims and awarded her UAH 2,019.51 in compensation from the Procurement Service, having found that its liquidation process had not been finalised.", "The court rejected the applicant’s claims against the Executive Committee. It found that the Committee bore no liability for the debts of its Procurement Service, as they were registered as two separate legal entities. 17. On 14 February 2002 the Regional Court upheld that judgment on appeal and it became binding for execution. On 19 February 2004 it was further upheld by the Supreme Court on appeal in cassation.", "18. On 14 March 2002 the Bailiffs’ Service initiated the enforcement proceedings. 19. On 9 January 2003 the Bailiffs’ Service terminated the enforcement proceedings, having transferred all the writs of execution to the Procurement Service’s liquidation commission. Subsequently the applicant unsuccessfully lodged complaints with judicial and other authorities seeking to facilitate the enforcement.", "20. According to the case-file materials, the applicant has not received any award due to her under the four judgments. II. RELEVANT DOMESTIC LAW 21. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no.", "67534/01, §§ 16-19). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained under Article 6 § 1 of the Convention about the State authorities’ failure to enforce the judgments of 24 November 1998, 5 November 1999, 10 November 1999 and 30 August 2001 given in her favour. This provision provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.", "...” A. Admissibility 23. The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those already dismissed by the Court in other judgments (see, for example, Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005). The Court considers that these objections must be rejected for the same reasons. 24.", "The Court concludes that the applicant’s complaints raise issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court finds no ground for declaring them inadmissible. The Court must therefore declare them admissible. B. Merits 25.", "The Government contended that the applicant’s rights under Article 6 § 1 of the Convention had not been breached. 26. The applicant disagreed. 27. The Court notes that according to the case-file materials the judgments given in the applicant’s favour have not been enforced, the non-enforcement periods ranging from six to nine years.", "28. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues, where a debtor was a public entity (see, for example, Kucherenko v. Ukraine, no. 27347/02, §§ 26-27, 15 December 2005). 29. 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.", "30. There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 31. The applicant further complained that she had no effective domestic remedies for her complaint under Article 6 § 1 of the Convention.", "She relied on Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 32. The Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground cited in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 33.", "The Government contended that the applicant had had effective channels of complaint on the same basis that they had argued that the applicant had not exhausted domestic remedies in respect of her complaints under Article 6 § 1 of the Convention. 34. The applicant objected to this view. 35. The Court refers to its findings in paragraphs 23-24 above concerning the Government’s non-exhaustion argument.", "For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings. 36. Accordingly, there has been a breach of this provision. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 37.", "Lastly, the applicant complained under Article 2 of the Convention about her poor standard of living and emotional suffering. 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 (see Wasilewski v. Poland (dec.), no. 32734/96, 20 April 1999). Moreover, the applicant has not shown that she suffered such destitution as to put her life at risk. 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 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 the unsettled court awards and 30,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.", "40. The Government contested these claims. 41. The Court notes that, as the judgments given in the applicant’s favour remain unenforced, the Government should pay her the outstanding debts in order to satisfy her claims for pecuniary damage. The Court further takes the view that the applicant has suffered non-pecuniary damage as a result of the violations found.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 2,600 in this respect. B. Costs and expenses 42. The applicant also claimed UAH 92 for postal expenses and presented the relevant receipts. 43.", "The Government did not comment on this claim. 44. The Court considers it reasonable to award the applicant EUR 15 under this head. C. Default interest 45. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the non-enforcement of the judgments and the lack of effective remedies in respect of the length of enforcement 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: (i) the unsettled court awards still owed to her, as well as; (ii) EUR 2,600 (two thousand six hundred euros) in respect of non‑pecuniary damage and EUR 15 (fifteen euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on these amounts, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] Since July 2001 the Lugansk Regional Court of Appeal (Апеляційний суд Луганської області)." ]
[ "FIRST SECTION CASE OF ROMANOVA v. RUSSIA (Application no. 23215/02) JUDGMENT STRASBOURG 11 October 2011 FINAL 08/03/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Romanova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Khanlar Hajiyev,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 20 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "23215/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Larisa Valeryevna Romanova (“the applicant”), on 24 April 2001. 2. The applicant, who had been granted legal aid, was represented by Ms V. Kartseva and then by Mr D. Sirozhidinov, lawyers practising in Moscow and the Moscow Region respectively. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and then by Mr G. Matyushkin, former and current Representatives of the Russian Federation at the European Court of Human Rights respectively. 3.", "On 23 May 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 § 1). 4. In June 2010 the President of the Chamber to which the case had been assigned invited the respondent Government under Rule 54 § 2 (a) of the Rules of Court to submit further documents concerning the application. The President of the Chamber also acceded to the Government’s request and ruled that, pursuant to Rule 33 § 1, the above-mentioned documents should not be made available to the public.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and lives in Moscow. A. Explosions 6.", "On 1 November 1998 an explosion destroyed the monument to Tsar Nicolas II in Podolsk in the Moscow Region. 7. On 13 August 1998 and 4 April 1999 two explosions occurred in Moscow during the night, damaging the façade of the Federal Security Service (“the FSB”). 8. Criminal investigations into acts of terrorism were opened following these events.", "Responsibility for the explosions was attributed to the anarchist movement “New Revolutionary Alternative” (NRA). B. Subsequent events and investigative measures 9. With regard to the explosion on 13 August 1998, the Moscow Regional Office of the Federal Security Service sought in September 1998 to establish whether the area adjacent to the FSB Office was monitored by any privately-owned or public video surveillance and recording systems. It was established that the video equipment of a private bank situated in the vicinity had been out of order from 11 to 13 August 1998; guards in others buildings which had video surveillance systems had not heard of any incident on 13 August 1998.", "It was reported that another bank and a shopping centre also had video surveillance and recording systems and that the authorities “had taken measures to ensure the safeguarding and seizure of the recordings”. 10. It was decided in December 1998 to suspend the investigation because no suspects had been identified in relation to the explosion on 13 August 1998. 11. On unspecified dates, following the resumption of the investigation, four suspects, including the applicant, were identified.", "The proceedings against one of them, Mr B., were later severed. The court discharged him from criminal liability and ordered mandatory psychiatric treatment for schizophrenia. 12. In the meantime, the applicant was made the subject of another criminal investigation in the Krasnodar Region on charges of handling explosives. It is unclear whether or not she was detained there for an unspecified period of time between January and June 1999.", "13. On 2 February 1999 the applicant’s flat was searched and a number of items which could be used for manufacturing an explosive device were found, together with allegedly anarchist literature. Between May 1999 and January 2000 the applicant was questioned in Moscow as a witness in relation to the explosions in Moscow and Podolsk. 14. According to the applicant, her telephone conversations had also been recorded in January and February 1999, that is, after the events on 13 August and 1 November 1998 but before the explosion in front of the FSB Moscow office on 4 April 1999.", "Allegedly, she learnt about the secret surveillance measures in January 2002 when she was studying the case file before her trial (see paragraph 36 below). 15. As can be seen from a report dated 8 June 1999 issued in connection with the criminal investigations of the Moscow and Podolsk explosions, an officer of the FSB Regional Office stated that a number of measures under the Operational and Search Activities Act (see paragraph 79 below) revealed that the applicant was skilled in the manufacturing of explosives and was a member of “New Revolutionary Alternative”; the above-mentioned measures had also permitted the authorities to identify her co-members and had made it probable that explosives or their components would be found at the applicant’s place of residence. In view of the above, the reporting officer sought permission to carry out a search. It is unclear whether and when this search was carried out (see, however, paragraph 19 below).", "16. By a decision of 9 June 1999, the Moscow City Court authorised the investigating authority to monitor conversations on seventeen fixed lines for a period of one hundred and eighty days; these were apparently unrelated to the applicant’s place of residence. In the same court decision, however, the City Court also authorised the opening and inspection of postal and other correspondence related to the corresponding postal addresses, as well as surveillance using video and audio recording at the applicant’s flat for the same period of time. In October 1999 the City Court issued another order authorising the tapping of another telephone line. 17.", "In August 1999 an officer of the FSB Regional Office reported to his superior that it was necessary to carry out “an analysis of calls since 1 January 1998” made to and from a number of fixed telephone lines, including the lines used by the applicant and her mother. 18. From October 1999 to April 2000 the applicant was subject to surveillance with the use of radio-transmitting devices which monitored and recorded her conversations in the flat. 19. In the meantime, at around 8.30 p.m. on 16 November 1999, a search was carried out in the flat of the applicant’s mother.", "The applicant was temporarily residing in the flat. The investigators found and seized a number of chemical agents and objects allegedly used for manufacturing explosives and samples of materials subsequently identified as those used in the 1998 explosions. 20. On 28 April 2000 the Chertanovskiy District Court of Moscow disallowed a complaint brought by the applicant’s mother regarding the searches which had been carried out in her flat. C. Matters relating to the applicant’s arrest and detention 21.", "In the meantime, on 5 April 2000, the applicant, together with Mr B. and Ms Nev., was arrested on suspicion of her involvement in the explosion of 13 August 1998. The deputy director of the FSB Investigations Department ordered her placement in custody, with reference to the risk of her evading investigation, obstructing the proceedings and reoffending, and with particular regard to the gravity of the offences and the applicant’s personality. 22. On 11 April 2000 the Moscow public prosecutor’s office extended the applicant’s detention. On 17 April 2000 the Lyublinskiy District Court of Moscow rejected her application for release.", "The applicant’s detention was further extended by the Prosecutor General’s Office on 30 May, 30 June and 2 October 2000, 7 February, 11 May and 8 August 2001. 23. Apparently on 27 June 2001, the applicant lodged an application for release and waived her right to appear before the court, referring in particular to the exhausting conditions of transport between the remand centre and the courthouse. On 20 July 2001 the Lyublinskiy District Court rejected the application for release. Allegedly, on that day the applicant was brought to the courthouse for unspecified reasons but did not attend the hearing.", "The District Court held as follows: “Despite [the applicant’s] arguments concerning her state of health and the fact that she has underage children, one of whom is under her care in the detention facility, the court considers that the continued detention of [the applicant] is lawful and justified on account of the gravity of the charges and her personality.” 24. The applicant appealed. In the meantime, on 3 October 2001, the Moscow City Court extended the applicant’s detention until 5 April 2002, giving the following reasons: “...taking into account the accused’s character ([she was] previously convicted under ...the CCrP) [and] the gravity of the charges, [there are] sufficient grounds to believe that, if released, the accused would abscond ... and thereby interfere with the establishment of the truth in the present criminal case and continue her criminal activity...”. 25. On 22 November 2001 the Supreme Court of Russia upheld the extension order.", "Several public figures, including a member of Parliament, signed personal guarantees in support of the applicant’s bail applications. 26. On 29 November 2001 the City Court upheld the decision of 20 July 2001 as follows: “The court authorised [the applicant’s] placement in custody on account of the public dangerousness of the offences, the gravity of the charges and the particular circumstances of the case, including her personality, state of health and her underage children. No new circumstances affecting the preventive measure were identified. The detention issue was examined in the absence of [the applicant], owing to her waiver.” 27.", "On 6 March 2002 the City Court decided to “maintain the preventive measure”. It appears that no hearing had been held. On 25 April 2002 the Supreme Court heard the applicant’s lawyer and a prosecutor, and upheld that decision in the following terms: “...the judge rightly pointed to the absence of any grounds for release as the preventive measure had been ordered in compliance with the law, regard being had to the actual circumstances of the offences in question and the character [of the applicant].” 28. From 1 July 2002 onwards the applicant’s detention was regulated by the new Code of Criminal Procedure, and in particular Article 255 thereof (see paragraph 71 below). 29.", "On 21 August 2002 the applicant’s lawyer Ms Ka. made written submissions in relation to the pending extension request from the prosecution. A detention hearing was held on the same day by judge M. assisted by two lay assessors. At the hearing the applicant’s lay representative Mr R. challenged the court, submitting that there had been no decision reassigning the criminal case to judge M. The challenge was dismissed as not “prescribed by law”. The court, composed of judge M. and two lay assessors, extended the applicant’s detention until 22 November 2002.", "The court held as follows: “The following persons are absent: lawyers Ms Ka. and Mr Ka. (on annual leave), Ms E. (busy in another case), Kr. and prosecutor Ma. (reason unspecified).", "Thus, the examination of the case cannot proceed. Besides, the six-month period of detention of [the applicant] expires on 22 August 2002. Under Article 255 § 3 of the Code of Criminal Procedure a court may extend detention... The court has heard submissions from the defendants and lawyer Kr., who is against the extension; representative R. and lawyer Ch. are against the examination of the detention issue in the absence of the persons referred to above.", "The court considers that [the applicant’s] detention should be extended in view of the gravity of the charges.” 30. The applicant appealed, arguing that judge Ko. had been the trial judge in the case. By virtue of the rule of immutability of the court’s composition, judge M. had no legal basis for issuing any decisions concerning the applicant in the absence of a formal decision to replace the trial judge. In any event, this “court” could not have lawfully taken any detention-related decision in the absence of the prosecutor and counsel.", "The detention order was unlawful as no reasons had been given. 31. Having heard submissions from the applicant’s lawyer, and referring to Articles 377, 378 and 388 of the Code of Criminal Procedure (see paragraphs 76 and 77 below), the Supreme Court set aside that decision on 16 October 2002, finding as follows: “...the court ...was not in a position to give its rulings, which were prejudicial to the rights and freedoms [of the applicant], in the absence of defence counsel and especially of the prosecutor, who must carry out the function of prosecution on behalf of the State... Ruling on the detention issue, the court premised its findings on the parties’ submissions, without any analysis of the materials in the case file relevant to the detention issue... Moreover, when extending the term of the detention ... the court referred only to the gravity of the charges ... in breach of Article 7 § 4 of the Code of Criminal Procedure, which provides that the detention order must be lawful and reasoned... ...the expiry of the six-month period and the gravity of the charges are not absolute grounds for extending detention... The court is empowered, but not obliged, to order an extension...", "The new examination will have to address the above breaches and consider the arguments submitted by the accused and their counsel... This court has no power to annul or amend the preventive measure in respect of [the applicant] because the criminal case [against her] is pending before the Moscow City Court.” Lastly, the Supreme Court held that the applicant “should be taken into custody”. 32. Having heard submissions from the applicant’s lawyers, on 21 November 2002 judge Ko., sitting with the lay assessors, issued a new extension order in respect of the period from 22 August until 22 November 2002. The order referred solely to the gravity of the charges against the applicant.", "By a separate order of the same date, the City Court granted a further extension of the applicant’s detention until 22 February 2003. On 12 February 2003 the Supreme Court upheld that (second) decision in the following terms: “the [city] court analysed thoroughly the materials in the case file ... [including] those relating to the adjournment of hearings on several occasions on the ground that the trial participants, including counsel for Ms Romanova, had failed to appear...” 33. On 14 February 2003 the City Court rejected an application for release from the applicant. The court held: “...given the gravity of the charges and other circumstances, as well as the [applicant’s] conduct at this stage of the proceedings – she is seeking to delay them – there are no valid reasons for varying the preventive measure. The issue of the preventive measure will be finally determined by the court taking the final decision on [the applicant’s and co-defendants’] guilt or innocence in respect of the offences in question.", "The arguments concerning the alleged difference in treatment of defendants Nev. and Nekh., who are under an undertaking not to leave their town of residence, and [the applicant] and Ra. are without legal basis.” 34. By a separate decision on the same day the City Court extended the applicant’s detention until 22 May 2003, referring to the gravity of the charges against her. On 23 April 2003 the Supreme Court upheld the extension, finding, with reference to Article 255 § 3 of the Code of Criminal Procedure, that the gravity of the charges justified a further extension of the applicant’s detention. 35.", "The applicant and her co-defendant Ra. were thus kept in custody before and during the trial. Their co-defendants Nev. and Nekh. were under an undertaking not to leave their town of residence. D. Criminal proceedings against the applicant 1.", "Pre-trial proceedings 36. On 11 April 2000 the applicant was charged with terrorism, handling explosives and drug-related offences. The preliminary investigation was completed on 22 May 2001. The applicant studied the case file together with counsel and her lay representative, Mr R. As can be seen from the record, between 22 May and 3 August 2001 the applicant studied several volumes for periods of between thirty minutes and seven hours per day. Between 22 August and 21 September 2001 the applicant refused to study the file because her counsel was not present.", "After resuming her study for a further period, she again did not study the material owing to the unavailability of her lawyers. In December 2001 the investigating authority ordered the defence to complete its study of the case file before 5 February 2002. 2. Trial 37. On 22 February 2002 the criminal case was submitted to the City Court for trial.", "The case was assigned to judge Ko. On 6 March 2002 judge Ko. refused to relinquish jurisdiction in favour of the Moscow Regional Court for trial by jury. The judge ruled that “the nature of the charges and the need to ensure the safety of the trial participants” required that the trial be conducted in camera. On 14 March 2002 the applicant was provided with a copy of the bill of indictment.", "38. On 25 April 2002 the Supreme Court upheld the decision of 6 March 2002 in the part concerning the trial in camera. It also rejected a challenge from the applicant concerning two of the three appeal judges, Bo. and Va., who had previously ruled on her appeals against her detention. 39.", "On 26 April 2002 two lay assessors were appointed to sit with the presiding judge. The applicant complained that she had not received a copy of the annexes to the bill of indictment, including the list of persons to be called as witnesses and the list of physical evidence to be examined at the trial (see also paragraphs 41 and 44 below). On 21 May 2002 the applicant was provided with a copy of the list of witnesses. On 21 August 2002 judge M., apparently replacing the trial judge Ko., decided to stay the proceedings owing to the absence of the prosecutor and of counsel for the applicant and her co-defendants. 40.", "It appears that since April 2002 at least twenty adjournments were ordered, mostly due to one or several lawyers’ absence for medical reasons, due to annual leave or unspecified reasons. In January 2003 judge Ko. sent a letter to the Moscow Bar Association complaining that the lawyers representing the applicant (Mr Ka. and Ms Ka.) and those representing her co-defendants had obstructed the trial by failing to appear on a number of occasions.", "The judge indicated that Mr Ka. had not been present on 21 May and 25 June 2002 owing to his involvement in another trial; had been on sick leave from 23 November to 11 December 2002; had been absent on 18 July and 16 December 2002 and on 9 January 2003 without a valid excuse supported by proof; and between 19 and 27 December 2002 had apparently been admitted to hospital, allegedly until 23 January 2003. Ms Ka. had not been present on 26 April 2002 owing to alleged illness and had been absent on 18 July and 27 December 2002 and on 23 January 2003 without a valid excuse supported by proof. 41.", "According to the trial verbatim record, the trial judge, noting the applicant’s refusal to study the case file in July 2002, asked the applicant which documents in the case file she wanted to examine. The applicant did not make any specific request. Instead, she and her lawyer Ka. complained that they had not been given an adequate opportunity to study the file during the preliminary investigation or to consult it at the premises of the remand centre rather than in the court building. The judge granted the defence request to study the case file, but the applicant refused to make use of it.", "42. It appears that the applicant’s co-accused retained new counsel, who were given time to study the case file. 43. On 3 February 2003 the trial court removed the applicant’s lay representative from the trial for repeated disruption of order in the courtroom. On the same date, the Preobrazhenskiy District Court of Moscow held the lay representative in contempt and ordered him to pay a fine of 1,000 Russian roubles.", "On 14 February 2003 the City Court rejected the applicant’s requests to have Mr R. re-admitted and also a motion she had submitted seeking to have the trial conducted in public. The court held that the case was “secret” for the purposes of Article 241 § 2 of the Code of Criminal Procedure and the anti-terrorist legislation. 44. On 14 March 2003 the trial court examined a number of requests submitted by the defence. The court considered that the RSFSR Code of Criminal Procedure, which had been applicable before the trial, did not require that the defence should be provided with both the bill of indictment and any “annexes” to it.", "In any event, the defence had been provided with the annexes, including the list of persons to be called as witnesses at the trial. The applicant, her lawyers and the lay representative R. had been afforded an opportunity to study the case file on several occasions. They had not made full use of that opportunity, on spurious grounds. 45. It appears that from 25 April to 1 May 2003 the applicant was kept in a disciplinary cell.", "46. On 14 May 2003 the City Court convicted the applicant and Ms Nev. in relation to the explosion of 13 August 1998 (unlawful production, possession and carrying of explosives, and terrorism) and the explosion of 1 November 1998 (unlawful possession, carrying and procurement of explosives and aiding and abetting an act of terrorism). The applicant was sentenced to a term of imprisonment of six years and six months. 47. The defendants had pleaded not guilty.", "However, referring to written depositions by Ms V. and Mr St. made at the pre-trial investigation stage, the City Court established that the bomb had targeted a public building, namely the FSB offices. The court also relied on written depositions by Mr N. and oral testimony from the witnesses R., K. and S., who had received information about the applicant’s anarchist activities and details of the explosions either directly from her or from her accomplices, including Mr B. 48. On the basis of the forensic reports the City Court established that the materials seized during the searches at the applicant’s home were identical to those used in the Moscow explosion. The City Court also had regard to transcripts of the tapped telephone conversations of 4 October and 18 November 1999, in which the applicant had discussed the explosions with her accomplices.", "49. The trial judgment reveals that the national authorities seized from a third person a handwritten note containing B.’s name and telephone number. It was established that this telephone number corresponded to the applicant’s and B.’s shared place of residence in Moscow and that B. had used the line for his telephone calls, as confirmed by the information set out at pages 110-115 of volume 16 of the criminal case file. 50. The applicant and her lawyers appealed against her conviction to the Supreme Court, relying on arguments which were substantially the same as those raised before this Court.", "51. On 4 December 2003 the Supreme Court, sitting in camera, quashed for lack of evidence the applicant’s conviction in the part concerning the Podolsk explosion on 1 November 1998 but upheld the remainder of the judgment and reduced the applicant’s sentence to five years and six months’ imprisonment. 3. Post-trial proceedings 52. On 6 August 2004 the Vladimir Regional Court refused to suspend execution of the applicant’s sentence.", "On 27 October 2004 the Supreme Court upheld this judgment. 53. Subsequently, the applicant attempted to have the 2001 Amnesty Act applied to her, but was told she did not qualify for it. She also unsuccessfully sought supervisory review of her conviction. 54.", "On 24 January 2005 the Sudogodskiy District Court of the Vladimir Region refused to release the applicant on parole. 55. Between 2003 and 2005 the applicant, her counsel and her parents lodged numerous applications with the Constitutional Court seeking a declaration of incompatibility of specific laws with the Constitution or a finding that other authorities had incorrectly applied the law. The Constitutional Court refused to entertain these complaints, inter alia, for lack of jurisdiction. 56.", "On 4 October 2005 the applicant was released after having served her sentence. E. Conditions of detention, transport and confinement in the courthouse 1. The applicant’s account 57. From 5 April 2000 until December 2003 the applicant was detained in Moscow remand centre no. 77/6.", "Thereafter, she was also held in a prison in Vladimir. (a) Conditions of detention in the remand centre 58. Under domestic legislation that allowed children under three to remain with their mother, the applicant opted to have her daughter (born in September 1999) placed in the remand centre with her. They were placed in the wing for women with children. It appears that in June 2000 the applicant and her daughter were temporarily placed in the medical unit as their cell was being renovated.", "On an unspecified date the child was admitted to hospital for treatment. In late August 2002 the applicant’s mother took the child out of the detention facility and took care of her thereafter. The applicant’s elder daughter, born in 1997, remained at home with her grandmother. 59. According to a letter sent to judge Ko.", "by the Moscow Department for the Execution of Sentences in April 2002, the applicant was kept in cell no. 205, designed for twelve women with children; the cell had twelve cots, three refrigerators, two electric stoves and a playpen. The cell comprised a bedroom, a bathroom and a toilet. At the time, the cell accommodated seven women with children. 60.", "During her detention the applicant, her counsel and her parents submitted a number of complaints to the management of the remand centre and other public authorities. The applicant complained about the conditions of her detention, claiming in particular that the cells were poorly ventilated and were not equipped with heating or cooking facilities, that the food was of poor quality, that there was an insufficient supply of personal hygiene products and that a shower was permitted only once a week. The applicant also complained of having been beaten up by a warden and of disputes with her cellmates allegedly instigated by investigators in order to put pressure on her. She also complained that she and her daughter had not been allowed to participate in outdoor activities. The applicant was authorised to have regular walks within a specially-designated closed area.", "In 2003 the applicant’s stepfather complained about the court’s failure to examine his applications for permission to visit the applicant in the remand centre. 61. It appears that on 25 April 2003 for unspecified reasons the applicant was put in a disciplinary cell for five days. On 25 and 29 April 2003 the applicant’s stepfather and counsel filed complaints with the Moscow City Court, claiming that placing a mother of two suffering from kidney disease in a disciplinary cell was inhuman. (b) Conditions of transport and confinement at the courthouse 62.", "During the trial, in particular between October 2002 and May 2003, the applicant, occasionally together with her child, was transported from the remand centre to the Moscow City Court between one and four times a week. She was woken up between 4.30 and 6 a.m. and brought to a cell measuring ten to twelve square metres, in which she awaited her departure together with twenty to thirty other detainees. Before leaving they had to undergo a strip search. At around 10 a.m. the detainees were transported by a “prison bus” with individual compartments or by a prison van divided into two compartments – male and female – accommodating twelve prisoners each. However, on occasions the female compartment contained up to fifteen women, and the applicant at least once had to sit on another person’s lap.", "The heating, ventilation and light were deficient and not adapted to seasonal conditions. No toilet facilities were available during the journey. 63. Owing to a shortage of prison vans and the long distances between detention facilities, the return to the detention facility could take up to several hours. Unlike for the journeys to the courthouse, on the way back the prison van had never gone directly to remand centre no.", "77/6, it made a detour to bring detainees to other remand centres where it sometimes stayed for hours. On arrival at around 1 or 2 a.m., the admission check would take another hour or two. 64. In the City Court the applicant was put in the convoy cell, a poorly lit and ventilated room measuring seven square metres, with a row of benches. Detainees had to clean the cells.", "The only lavatory, for both male and female detainees, was extremely dirty. The applicant subsequently submitted that the cells at the courthouse had, most of the time, been reserved for male detainees; female detainees had been placed in a small cell; there was no toilet reserved for women; the toilet could not always be accessed when needed. 65. In the City Court no hot meals or boiled water were distributed. Detainees leaving for a court were provided with a “day pack” containing a piece of bread, a tea bag and cold soup.", "The applicant subsequently submitted that in 2002 detainees had been given a ration of bread, a soya-based cold food and, at times, sugar. The applicant’s relatives supplied food on several occasions. The applicant was allowed to bring a bottle of water. In mid-2003 the authorities had started to provide dry rations which could not be properly consumed without hot water. It does not appear that these new arrangements affected the applicant.", "66. According to the applicant, she remained handcuffed throughout the time she spent studying the case file on the court premises. In the courtroom, the applicant was kept in a metal cage guarded by convoy officers. 2. The Government’s account concerning the conditions of transport and confinement at the courthouse 67.", "The applicant was transported between the remand centre and the courthouse in ZIL and GAZ vehicles designed for thirty-six and twenty-one persons respectively. The ventilation consisted of an opening in the back door and an opening in the ceiling. The vehicles were heated through the internal system connected to the vehicle’s engine. 68. At the Moscow City Court, before renovation works in 2004, the applicant was kept in a cell measuring 1.95 square metres.", "Each cell had a system of ventilation, lights and a bench. Each cell was cleaned on a daily basis. The applicant could be taken to the toilet on request, as well as before departure to the remand centre and before and after a court hearing. Detainees were “kept separately” in the cells. Before departure detainees were provided with a hot meal in the remand centre and could take their own food with them.", "Hot water was provided in the court building. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Detention and judicial review 69. The Constitution guarantees the right to liberty.", "Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours (Article 22). 70. Under Article 239.1 of the RSFSR Code of Criminal Procedure (CCrP), detention pending trial could not exceed six months from the date when the case was submitted to the court. If the available data confirmed that the defendant’s release would significantly obstruct the course of the proceedings, the court could issue a reasoned decision extending his or her detention until the delivery of the judgment and, in any event, for up to three months.", "If the decision was quashed on appeal, the defendant had to be released without delay. The above provisions did not apply to defendants charged with particularly serious offences. 71. From 1 July 2002 onwards detention pending trial was regulated by Article 255 of the new Code of Criminal Procedure. At the material time it authorised detention for six months from the receipt of the case by the court until the delivery of the judgment.", "On expiry of the six-month period “the court dealing with the case” was empowered to order extensions of the defendant’s detention by up to three months each time. In its ruling of 22 March 2005 the Constitutional Court of Russia held that the CCrP allowed a court to decide on detention proprio motu. This finding, however, did not absolve the court from its obligation to examine all relevant evidence adduced by the parties; defendants had to be allowed to take part in the proceedings concerning their detention and be given an opportunity to present their case and adduce evidence. 72. Article 379 of the new CCrP sets forth the legal grounds for quashing or amending a judgment on appeal: (i) contradiction between the court findings in the judgment and the factual circumstances of the case; (ii) violation of a rule of criminal procedure; (iii) incorrect application of the criminal law; and (iv) unfairness of the judgment.", "73. Ground (i) obtains where the court’s findings are not supported by the evidence examined at the trial; the court does not take account of circumstances capable of influencing its conclusions; despite the existence of contradictory evidence crucial to the court’s conclusions, the latter omits to indicate why it accepted or excluded such evidence; the court’s findings in the judgment contain significant contradictions which influence or could influence the findings on guilt or innocence, the correct application of the criminal law or the determination of sentence (Article 380). 74. Ground (ii) obtains where a party to the proceedings is deprived of or restricted in the exercise of his or her procedural rights; a procedure is not complied with or there has been another defect which influences or could influence the fairness of the proceedings. The following circumstances should, in any event, constitute grounds for the quashing or amendment of the judgment: failure to discontinue a criminal case despite the existence of the circumstances set out in Article 254 of the Code; unlawful composition of the trial court or jury; examination of the case in the absence of the defendant, except in the circumstances set forth in Article 247 of the Code; examination of the case without legal counsel, when his or her presence is mandatory under the Code, or other violations of the right to legal assistance; violation of the defendant’s right to use his or her own language or to have the assistance of an interpreter; failure to give the defendant an opportunity to take part in oral pleadings or make final pleadings; violation of the secrecy of the deliberations, etc.", "(Article 381). 75. Ground (iii) obtains when there has been a violation of the Criminal Code or incorrect reference is made to its articles or sub-paragraphs. Ground (iv) obtains if the sentence does not correspond to the seriousness of the offence or the defendant’s personality. 76.", "Article 377 describes the procedure for an appeal hearing. Article 378 provides that an appeal court may uphold the court decision under review, quash the decision and discontinue the case, quash the decision and order re-examination of the case or amend the decision. 77. Article 388 sets out the requirements in terms of the content of the appeal decision (date, court, parties, arguments, reasons). If the appeal court orders the release of the defendant, that decision must be enforced immediately if the defendant is present at the appeal hearing.", "In 2003 this provision was amended to also require the appeal court to decide on the preventive measure (detention or other). 78. In a decision no. 1003-O-O of 19 May 2009 the Constitutional Court held that the appeal court’s power to keep a defendant in detention pending re‑examination of the detention issue after the quashing of the most recent detention order was implicit in the principle requiring a court decision for each period of detention. Such “interim” decisions of the appeal court were found to be capable of ensuring adequate judicial control, since the appeal court was empowered to decide in adversarial proceedings on the existence of factual circumstances which justified keeping the defendant in custody (see also ruling no.", "6-П of 16 May 2007, and ruling no. 22 of 29 October 2009 by the Plenary Supreme Court of Russia (§ 32)). The relevant court was to apply the relevant principles set out in Articles 10, 108, 109 and 255 of the CCrP. B. Operational and Search Activities Act 79.", "Section 6 of the Act contained a list of open and secret investigative activities including observation, searching of premises, monitoring of postal and other communications and tapping of telephone conversations. The above activities could be accompanied by the use of information systems and video and audio recording. Activities which affected the right to confidentiality of communications transmitted by means of telephone or mail and the right to respect for the home had to be authorised by a court order (section 8). III. RESERVATION ISSUED BY THE RUSSIAN FEDERATION 80.", "The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contained the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96‑1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 81. The applicant complained that the conditions of her transport to and confinement at the courthouse had violated Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 82. The Government submitted that the applicant had not complained to any public authority about the conditions of transport and confinement, which, in any event, had been acceptable (see paragraphs 67 and 68 above). 83.", "The applicant argued that the problems relating to the transport of detainees had been due to the insufficiency of vehicles and convoy personnel rather than her particular circumstances. The Government had not substantiated their submissions by reference to any records concerning food supplies or transport. A. Admissibility 84. In so far as the requirement of exhaustion of domestic remedies is concerned, the Court reiterates that when a Contracting State seeks to shelter behind the requirement to exhaust remedies, it is for the State to establish the existence of available remedies that have not been utilised. However, the Government did not clearly identify the means of redress to which the applicant had failed to have recourse.", "It is not for the Court to ascertain what were the particular remedies alluded to (see, among others, Hajibeyli v. Azerbaijan, no. 16528/05, § 41, 10 July 2008). Thus, the Court is not convinced that the applicant was required to exhaust any specific remedies which were capable of affording her adequate redress in relation to her grievances concerning the conditions of her transport to and confinement at the courthouse. Hence, the Government’s argument is dismissed. 85.", "The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1.", "General principles 86. As the Court has held on many occasions, legitimate measures depriving a person of his liberty may often involve an element of suffering and humiliation. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. However, the Court reiterates that Article 3 of the Convention requires the State to ensure that detention conditions are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, as a recent authority, M.S.S. v. Belgium and Greece [GC], no.", "30696/09, § 221, 21 January 2011). 87. The Court reiterates that to be regarded as degrading or inhuman for the purposes of Article 3 of the Convention treatment must attain a minimum level of severity (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII). When assessing conditions of detention, account has to be taken of the specific allegations made by the applicant and the cumulative effects of those conditions (see Dougoz v. Greece, no.", "40907/98, § 46, ECHR 2001-II). Allegations of ill-treatment must be supported by appropriate evidence. 2. Application of the principles in the present case 88. The Court observes at the outset that the crux of the applicant’s complaint is the length of the transfers between the courthouse and the remand centre (see paragraph 63 above).", "She also referred to the conditions of her confinement at the convoy premises in the courthouse and the absence of hot wholesome meals on the days of court hearings. It is noted that the applicant’s grievance concerning the conditions of transport relates essentially to the period from October 2002 to May 2003. Similarly, her complaint about the conditions of confinement at the premises of the Moscow City Court relates to the trial. 89. First of all, it is noted that the parties are in disagreement as regards the relevant factual circumstances.", "It should also be observed that in the present case the Court does not have the benefit of the relevant findings of fact made at the material time at the domestic level. 90. Regarding confinement at the courthouse, the Court observes that the applicant made contradictory descriptions of the premises at which she had allegedly been kept in the courthouse (see paragraphs 64 and 65 above). In any event, it does not appear that she was detained at the courthouse in cramped conditions on many occasions and/or for prolonged periods of time (see, for comparison, Pavlenko v. Russia, no. 42371/02, §§ 80 and 81, 1 April 2010; Vladimir Krivonosov v. Russia, no.", "7772/04, §§ 101 and 102, 15 July 2010; and Khudoyorov v. Russia, no. 6847/02, §§ 117-120, ECHR 2005‑X (extracts)). Moreover, it is noted that the applicant was given some food on the days of court hearings. The applicant’s allegations concerning the amount or quality of food are unsubstantiated. As she has acknowledged, the alleged unavailability of hot water necessary for eating the “dry ration” did not affect her.", "She has not put forward any convincing argument suggesting that the arrangements made by the national authorities for feeding detainees, including herself, amounted to a form of treatment proscribed by Article 3 of the Convention (see, in a similar context, Vlasov v. Russia, no. 78146/01, §§ 93-99, 12 June 2008; Denisenko and Bogdanchikov v. Russia, no. 3811/02, §§ 106-10, 12 February 2009; and Svetlana Kazmina v. Russia, no. 8609/04, §§ 76-79, 2 December 2010). Thus, the alleged conditions of confinement at the courthouse, as presented, do not appear to exceed the minimum level of severity under Article 3 of the Convention.", "91. As to the conditions of transport, it does not appear that the applicant was transported on numerous occasions in cramped or indecent conditions. As to the alleged length of transfers (mainly from the courthouse to the detention facility), bearing in mind the “practical demands of imprisonment”, the Court does not find it established that the applicant was subjected to treatment which exceeded the minimum level of severity. Having examined the parties’ submissions and the available material, the Court does not consider that the applicant was subjected to distress or hardship of an intensity “exceeding the unavoidable level of suffering inherent in detention”. 92.", "There has therefore been no violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION 93. The applicant complained that her detention from 6 March to 21 November 2002 had been in breach of Article 5 § 1 of the Convention. It reads as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...” A. The parties’ submissions 94. The applicant argued that the detention order of 6 March 2002 had been “unlawful” because it had been taken without the applicant and her lawyers being present; it had not set any time-limit and could not serve as a lawful basis for her detention before it became final on 25 April 2002. As the case against the applicant had apparently been reassigned in June, July and August 2002, the detention issue should have been re-examined on each occasion, as required by the Code of Criminal Procedure.", "The detention order of 21 August 2002 could not serve as a lawful basis for her continued detention because of the unlawful composition of the court and as it had been quashed owing to some other fundamental defects. The appeal decision of 16 October 2002 ordering the applicant’s detention pending re-examination of the detention issue had prejudged this re-examination. The appeal court had cited no lawful basis for its decision. The new detention order of 21 November 2002 had contained no reasons. The applicant retained her victim status in respect of the above grievances in the absence of any acknowledgment and adequate redress.", "95. The Government submitted that the decision of 6 March 2002 had lawfully authorised the applicant’s detention until 21 August 2002; the detention order of 21 August 2002 had lawfully authorised her detention until its quashing by the appeal court on 16 October 2002; the appeal decision had served as a legal basis for the applicant’s subsequent detention until 21 November 2002. The order of 21 August 2002 was prima facie valid in that its quashing had not been due to any fundamental defect. The delay in issuing a fresh order on 21 November 2002 did not affect the lawfulness, although it could have raised an issue under Article 5 § 4 of the Convention. In any event, the applicant had lost her victim status on account of the explicit acknowledgment of the violation of her rights by the appeal decision of 16 October 2002.", "She should have sought compensation under Articles 196, 1070 § 1 and 1100 § 2 of the Civil Code. B. The Court’s assessment 1. Admissibility 96. As to compensation, the Government has not provided sufficient information which would confirm that the suggested civil action had any prospect of success in a situation in which, after a higher court had annulled a detention order issued by a lower court, the latter re-examined the matter and declared the relevant period of detention lawful.", "Having previously examined and rejected a similar argument, the Court does not find any reason to reach a different conclusion in the present case (see Shcheglyuk v. Russia, no. 7649/02, § 34, 14 December 2006, with further references). The Government’s objection in this regard is therefore dismissed. 97. As to the applicant’s victim status, the Court considers that the matter is closely linked to the substance of the complaint and thus should be joined to the merits.", "98. The Court considers that the complaint concerning the applicant’s detention from 6 March to 21 November 2002 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. 2.", "Merits (a) General principles 99. The Court reiterates that Article 5 § 1 of the Convention requires in the first place that detention be “lawful”; this includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof. In addition, the Convention requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, as a recent authority, Medvedyev and Others v. France [GC], no. 3394/03, § 79, 29 March 2010).", "100. Since it is in the first place for the national authorities, notably the courts, to interpret domestic law, and in particular rules of a procedural nature, the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. However, since under Article 5 § 1 of the Convention failure to comply with domestic law may entail a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among others, Shteyn (Stein) v. Russia, no. 23691/06, §§ 89 and 94, 18 June 2009). 101.", "It should be noted in that connection that defects in a detention order do not necessarily render the underlying detention as such “unlawful” for the purposes of Article 5 § 1. In a given case, the Court has to examine whether any flaw in the relevant detention order amounted to “a gross and obvious irregularity” so as to render the underlying period of detention in breach of Article 5 § 1 of the Convention (see Mooren v. Germany [GC], no. 11364/03, § 84, ECHR 2009‑...). (b) Application of the principles in the present case (i) Detention from 6 March to 21 August 2002 102. The Court observes that the detention order of 6 March 2002 was issued in the absence of the parties, that it did not contain any reasons for the applicant’s continued detention and did not set any time-limit for it (see paragraph 27 above).", "103. It is the Court’s well-established case-law, albeit in the context of Article 5 § 4 of the Convention, that in the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Trzaska v. Poland, no. 25792/94, § 74, 11 July 2000, and Reinprecht v. Austria, no. 67175/01, § 41, ECHR 2005‑XII). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no.", "318‑B). It appears that no hearing was held on 6 March 2002. 104. Whether or not the above element, taken alone, disclosed “unlawfulness”, the Court also reiterates that the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time, coupled with the failure of the judicial authorities to indicate a time-limit for the detention is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 of the Convention (see Nakhmanovich v. Russia, no. 55669/00, § 71, 2 March 2006).", "The detention order of 6 March 2002 did not state any reasons and did not indicate any time-limit. Nor did any such time-limit transpire from the applicable provisions of the domestic law (see paragraph 70 above). 105. While it is true that the applicant had, and made use of, the opportunity to appeal against the decision of 6 March 2002, the appeal court did not in fact cure any defects in the above decision. Nor has it been submitted that the earlier detention order of 3 October 2001 extending detention until 5 April 2002 (see paragraph 24 above) remained in force until that date, even after a new detention order dated 6 March 2002 was issued.", "106. Making a global assessment of the above-mentioned elements, the Court considers that the applicant’s detention under the order of 6 March 2002 was not “lawful” for the purposes of Article 5 § 1 of the Convention (see, among others, Savenkova v. Russia, no. 30930/02, § 68, 4 March 2010). 107. There has therefore been a violation of Article 5 § 1 of the Convention concerning the applicant’s detention from 6 March to 21 August 2002.", "(ii) Detention from 21 August to 16 October 2002 108. The applicant’s detention under the order of 21 August 2002 was authorised by judge M. of the City Court under the new Code of Criminal Procedure in force since 1 July 2002 (see paragraphs 29, 30 and 39 above). The appeal court quashed this order on 16 October 2002 and ordered the re-examination of the detention issue by the City Court. The appeal court referred to the absence of defence counsel and of the prosecutor from the detention hearing; the first-instance court’s failure to assess the relevant material in the case file and to give reasons (see paragraph 31 above). 109.", "The Court reiterates that where a detention order contains defects or flaws disclosing a “gross and obvious irregularity”, the underlying period of detention is in breach of Article 5 § 1 of the Convention (see Mooren, cited above, § 84). 110. The Court observes that the detention order of 21 August 2002 was issued by a court having jurisdiction in the matter. However, the appeal court subsequently considered that this detention order suffered from defects which were serious enough to prompt the quashing of this court decision and ordering the re-examination of the detention issue by the first-instance court. 111.", "The Court agrees with the reasoning of the appeal court, which acknowledged serious defects in the detention order, rending the underlying period of detention unlawful and not “in accordance with a procedure prescribed by law”, in breach of Article 5 § 1 of the Convention. 112. 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, having regard, in particular, to the nature of the Convention violation in issue (see Gäfgen v. Germany [GC], no. 22978/05, § 116 et seq., ECHR 2010-..., and Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 76-84, 2 November 2010).", "The Court observes that in the present case it took more than one month for the first-instance court to reassess the detention issue and to validate the preceding period of detention. In addition, neither the appeal decision nor the fresh detention order concerning this period of detention contained time-limits or reasons (see paragraphs 31 and 32 above). Thus, the Court dismisses the Government’s argument that the applicant has lost her victim status in respect of the grievance concerning the compliance of her detention from 21 August to 16 October 2002 with the requirements of Article 5 § 1 of the Convention. 113. There has therefore been a violation of Article 5 § 1 of the Convention in respect of this period of detention.", "(iii) Detention from 16 October to 21 November 2002 114. The Court observes that when quashing the detention order of 21 August 2002 and ordering the re-examination of the matter, the Supreme Court noted that it had no powers to annul or amend the preventive measure because the criminal case against the applicant was pending before the City Court. Notwithstanding this finding, the appeal court decided that the applicant should remain in detention pending re-examination of the detention issue by the City Court (see, for comparison, Kuptsov and Kuptsova v. Russia, no. 6110/03, § 81, 3 March 2011). 115.", "The applicant argued that the appeal court had no jurisdiction to maintain her in detention (see paragraphs 77 and 94 above). No other arguments were adduced concerning the lawfulness issue in respect of the relevant period of detention. 116. In the Court’s view, it could be reasonably considered in the absence of any indication or case-law to the contrary that the appeal court did not act in excess of jurisdiction when deciding to maintain the applicant in custody in the circumstances of the case (see paragraphs 31 and 69 above). It should not be overlooked that the Constitutional Court held, albeit in 2009, that the appeal court’s power to keep a defendant in detention pending re‑examination of the detention issue after the quashing of the most recent detention order was implicit in the principle requiring a court decision for each period of detention (see paragraph 78 above).", "117. There has therefore been no violation of Article 5 § 1 of the Convention in respect of that period of detention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 118. The applicant complained that she had not been brought before an “officer authorised by law to exercise judicial power” and that the length of her detention had not been based on relevant and sufficient reasons, in breach of Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” A. Admissibility 119. Firstly, the Court reiterates that Russia issued a reservation in respect of certain aspects of Article 5 §§ 3 and 4 of the Convention. The reservation referred, among other things, to the provisions of the RSFSR Code of Criminal Procedure, under which a person could be detained on a decision of the investigating authorities without there being any requirement for judicial supervision of the detention. The Court has examined the validity of the reservation and found it to be compatible with the requirements of Article 57 of the Convention (see Labzov v. Russia (dec.), no. 62208/00, 28 February 2002; see also paragraph 80 above).", "It follows that, even assuming that the applicant complied with the six-month rule under Article 35 § 1 of the Convention, her first complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 120. Secondly, the Court considers that the complaint concerning the length and reasonableness of the applicant’s detention pending investigation and trial 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 121. The Government argued that the applicant’s detention had been justified owing to the complexity of the case, her status as a member of an extremist organisation and the “real risks that her release would endanger public safety” on account of the nature of the charges against her and the media coverage of the case. 122. The applicant argued that the detention orders had not contained relevant and sufficient reasons.", "Nor had the circumstances first referred to by the Government been shown to be relevant and sufficient. The prosecution requests for extension orders had not been supported by any evidence. 123. The Court observes that the applicant was arrested on 5 April 2000 and was convicted on 14 May 2003. Therefore, the period to be considered under Article 5 § 3 of the Convention amounts to three years, one month and eight days.", "124. Having examined the available material, the Court is satisfied that the suspicion against the applicant was a reasonable one in the circumstances and that it persisted during the relevant period of time. It accepts that the existence of this suspicion justified the applicant’s arrest and the initial period of detention. 125. The Court reiterates, however, that while the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the assessment of the continued detention, with the lapse of time this no longer suffices.", "Thus, the Court must establish whether the other grounds given by the authorities continued to justify the deprivation of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑X). The national authorities must establish the existence of specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Bykov v. Russia [GC], no. 4378/02, §§ 62 and 63, ECHR 2009‑...). Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings.", "126. It can be discerned from the available detention orders that when extending the applicant’s detention or refusing applications for her release the courts were satisfied that there was still a reasonable suspicion against the applicant. In addition, the domestic courts justified their decisions by reference to the gravity of the charges and the applicant’s personality or behaviour. On several occasions they also mentioned the risk that, if at large, she would evade justice and thereby obstruct the course of the proceedings or continue her criminal activity (see paragraphs 21 and 24 above). The Court will examine these aspects in turn.", "1. Risks of evading justice or obstructing the proceedings 127. The Court reiterates that the risk of flight should be assessed with reference to various factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8). 128.", "As to the risk of obstruction of the proceedings, the national authorities should have regard to pertinent factors such as the advancement of the investigation or judicial proceedings and their resumption or any other specific indications justifying the fear that the applicant might abuse the regained liberty by carrying out acts aimed, for instance, at the falsification or destruction of evidence (see W. v. Switzerland, 26 January 1993, § 36, Series A no. 254-A). 129. The Court observes that the national authorities did not specify any way in which the above risks were heightened in the present case or could materialise. Nor did the courts assess the risk of flight in the light of the applicant’s personal situation, for instance her being a mother of two minor children.", "The Court is not satisfied that the risks were sufficiently established. 2. Risk of reoffending 130. The risk of reoffending, if convincingly established, may lead the judicial authorities to place and leave a suspect in detention in order to prevent any attempts to commit further offences. It is however necessary, among other conditions, that the danger be a plausible one and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see Clooth v. Belgium, 12 December 1991, § 40, Series A no.", "225, and Paradysz v. France, no. 17020/05, § 71, 29 October 2009). On at least one occasion the domestic court mentioned that the applicant had previously been prosecuted for unspecified offences (see paragraph 24 above). However, the national courts did not attempt to assess the relevant risk, including whether the previous facts and charges were comparable, either in nature or in the degree of seriousness, to the charges in the pending proceedings (see Popkov v. Russia, no. 32327/06, § 60, 15 May 2008, and Shteyn (Stein), cited above, § 115).", "The Court is not convinced that the risk of reoffending was sufficiently established. 3. Protection of public order 131. The Government also relied on the protection of public order as a ground for the applicant’s detention. Indeed, the Court has previously accepted that, by reason of their particular gravity and the public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a certain time (see I.A.", "v. France, 23 September 1998, § 104, Reports of Judgments and Decisions 1998‑VII, and Bouchet v. France, no. 33591/96, § 43, 20 March 2001). In exceptional circumstances – and subject, obviously, to there being sufficient evidence – this factor may therefore be taken into account for the purposes of the Convention. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the defendant’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order actually remains threatened; its continuation cannot be used to anticipate a custodial sentence (see Kemmache v. France, 27 November 1991, § 52, Series A no.", "218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241-A). 132. The Court, however, notes that it does not appear that Russian law recognised prejudice to public order caused by an offence as a ground for detention (see Aleksandr Makarov v. Russia, no. 15217/07, § 137, 12 March 2009).", "In any event, no such ground of detention was articulated clearly by the national courts. The courts did not explain why the continued detention of the applicant was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger to public safety, for instance by contrast to two of her four co-defendants, who remained at liberty during the trial. Therefore, the arguments of the Government referring to the protection of public order cannot be seen as sufficient basis for ordering or extending the applicant’s detention. The Court reiterates in that connection that it is not its task to take the place of the national authorities which ruled on the applicant’s detention (see Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001).", "4. Conclusion 133. While the Court is not oblivious to the fact that the applicant was prosecuted on terrorist charges, the detention orders in the present case do not stand up to scrutiny as regards the requirements of Article 5 § 3 of the Convention. There has therefore been a violation of that provision. IV.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (LENGTH OF CRIMINAL PROCEEDINGS) 134. The applicant complained that the length of the criminal proceedings against her had exceeded a “reasonable time”, in breach of Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 135. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits 136. The applicant submitted that the proceedings had started on 5 April 2000, when she was arrested, and had not been completed within a reasonable time. 137. The Government submitted that the proceedings had started on 11 April 2000 and had been delayed by the applicant and her lawyers, in particular while they had studied the case file.", "There had been no significant periods of inactivity on the part of the courts. All the adjournments had been justified and none had been imputable to the State authorities. The trial court had attempted to discipline the lawyers who had failed to appear (see paragraph 40 above). 1. Period under consideration 138.", "The Court observes at the outset that before her arrest on 5 April 2000 the applicant had been subject to various investigative measures such as searches and secret surveillance measures. However, in the absence of submissions from the parties on the matter, the Court does not have sufficient details and thus cannot but accept that the period to be taken into consideration started, in so far as the length of proceedings is concerned, on 5 April 2000, when the applicant became substantially affected by the proceedings (compare Barry v. Ireland, no. 18273/04, §§ 33‑35, 15 December 2005). It is common ground that these proceedings ended on 4 December 2003. Thus, they took three years and nearly eight months for the investigative stage and the trial at two levels of jurisdiction.", "2. Assessment of the period 139. The Court has examined the applicant’s complaint, bearing in mind that it essentially concerned the court proceedings, which lasted from 22 February 2002 to 4 December 2003, that is, for one year and slightly over nine months at two levels of jurisdiction. 140. It has not been alleged that there were any significant periods of inactivity attributable to the State during the preliminary investigation (see Shenoyev v. Russia, no.", "2563/06, § 63, 10 June 2010). 141. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 142.", "The Court accepts that the case was relatively complex. It also reiterates that an applicant cannot be required to cooperate actively with the judicial authorities, nor can he or she be criticised for having made full use of the remedies available under the domestic law in the defence of his or her interests (see, among other authorities, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005). However, the Court agrees with the Government that certain periods of inactivity could be attributable to the defence. At the same time, the applicant did not provide evidence that any specific significant periods of inactivity during the trial were imputable to the State.", "143. Although it should not be overlooked that the applicant was kept in detention pending investigation and trial, the Court, making an overall assessment, concludes that in the circumstances of the case the “reasonable time” requirement of Article 6 § 1 of the Convention was complied with. 144. There has accordingly been no violation of that provision. V. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION IN RELATION TO THE TRIAL 145.", "The applicant alleged that there had been various violations of Article 6 of the Convention in the criminal proceedings against her. Article 6, in its relevant parts, provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 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 ... 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;...” A. Submissions by the parties 1.", "The applicant 146. The applicant submitted numerous complaints under Article 6 of the Convention, alleging that the trial court had made incorrect findings of fact, misapplied national law and made an inadequate assessment of the evidence. She argued that the trial court had relied on evidence obtained through unlawful searches and on the transcripts of the (telephone) tapping prepared by the prosecution. 147. Moreover, the entire trial had been held in camera, and only part of the trial and appeal judgments had been delivered in public.", "The applicant argued that the decision to hold the trial in camera had not contained any reasoning and had been unlawful under the RSFSR Code of Criminal Procedure. There had been no reason to exclude members of the public from the appeal hearing. 148. Lastly, according to the applicant, certain documents, including the list of physical evidence, had not been timely disclosed to the defence; the applicant had not been provided with the video surveillance recording of the site of the explosion which the FSB allegedly had in its possession. The applicant had not had adequate time and facilities for the preparation of her defence because of the limited access to the case file.", "Allegedly, she had had to study the case file with a shackled hand and could only do so during her time at the courthouse. Owing to the conditions of transport and confinement at the courthouse, as well as her placement in a disciplinary cell, the applicant had been unable to prepare properly for the trial hearings. 2. The Government 149. The Government argued that the criminal proceedings had been fair and that the defence had been afforded adequate opportunity to plead their case in adversarial proceedings.", "The applicant had had regular meetings with her lawyers in the remand centre in order to study the case file. Both had disrupted or delayed the procedure on several occasions. The conditions of the applicant’s detention had not impinged upon her ability to prepare her defence. The applicant had been provided with the entire text of the bill of indictment and the annexes to it. 150.", "The Government also submitted that the decision to close the trial to the public had been justified owing to the negative and even panic-stricken reaction of the population to the terrorist acts, which had been liable to disrupt the trial or cause mass disorder and aggression against the defendants. Hence, the restriction had been strictly necessary for protecting public order and the persons involved in the trial. B. The Court’s assessment 1. Admissibility 151.", "The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Public hearing 152.", "The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. It protects litigants against the administration of justice in secret with no public scrutiny. It is also one of the means whereby confidence in the courts can be maintained. The administration of justice, including trials, derives legitimacy from being conducted in public. By rendering the administration of justice transparent, publicity contributes to fulfilling the aim of Article 6 § 1, namely a fair trial (see Gautrin and Others v. France, 20 May 1998, § 42, Reports 1998-III, and Pretto and Others v. Italy, 8 December 1983, § 21, Series A no.", "71). There is a high expectation of publicity in ordinary criminal proceedings, which may well concern dangerous individuals, notwithstanding the attendant security problems (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80). 153. The requirement to hold a public hearing is subject to exceptions.", "This is apparent from the text of Article 6 § 1 itself, which contains the provision that the press and public may be excluded from all or part of the trial in the interests of national security in a democratic society, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Thus, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (see B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR 2001-III, with further references). The Court’s task in the present case is to establish whether the exclusion of the public from the trial in the City Court was justified. 154.", "The Court observes that in the applicant’s criminal case the City Court ordered a trial in camera, referring to the nature of the charges and the need to ensure the safety of the trial participants. Subsequently, the court rejected the defence’s objection to the trial in camera, referring to the “secret” status of the case file under the Code of Criminal Procedure and unspecified anti-terrorist legislation (see paragraphs 37 and 43 above). 155. In the Court’s view, it was not convincingly shown that national security concerns served as a valid basis for the decision to exclude the public from the trial. Even assuming that the City Court endorsed the prosecutor’s argument pertaining to the presence of classified information in the criminal case file, the Court does not concur with the Government’s submission that the mere presence of such information in a case file automatically implies a need to close a trial to the public, without balancing openness with national security concerns.", "The Court observes that it may be important for a State to preserve its secrets, but it is of infinitely greater importance to surround justice with all the requisite safeguards, of which one of the most indispensable is publicity. Before excluding the public from criminal proceedings, courts must make specific findings to the effect that closure is necessary to protect a compelling government interest and limit secrecy to the extent necessary to preserve such an interest (see, mutatis mutandis, Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 149, 29 November 2007, and Moser v. Austria, no. 12643/02, §§ 96 and 97, 21 September 2006). 156.", "There is no evidence to suggest that either of these two conditions was satisfied in the present case. The City Court did not elaborate on the reasons for holding the trial in camera. It did not even indicate what documents in the case file, if any, were considered to contain State secrets or how they were related to the nature and character of the charges against the applicant. The Court further observes that the City Court did not take any measures to counterbalance the detrimental effect that the decision to hold the trial in camera, for the sake of protecting the State’s interest in keeping its secrets, must have had on public confidence in the proper administration of justice. The Government did not argue – and there is no indication to the contrary in the documents submitted by the parties – that it was not open to the City Court to hold the trial publicly and simply clear the courtroom for a single or, if need be, a number of non-public sessions to deal with classified documents or information.", "The Court therefore finds it striking that in such a situation the Moscow City Court preferred to close the entire trial to the public (see Belashev v. Russia, no. 28617/03, § 84, 4 December 2008). 157. The Court will next examine the Government’s second argument to the effect that the exclusion of the public was necessary in the interests of justice and in particular for the safety of the “trial participants”, including the defendants. The Court considers that it would have been preferable to expand on this element in order to explain in more detail why the City Court was worried about the vulnerability of certain persons or whether and why it was concerned that those persons might have been deterred.", "It was also important to explain why the concern for the safety of the persons involved in the trial outweighed the importance of ensuring the publicity of the trial (see Porubova v. Russia, no. 8237/03, § 34, 8 October 2009). Moreover, if the trial court had indeed taken into account certain information, this should have been presented to the parties, in particular the applicant, to permit open discussion of the matter (see Volkov v. Russia, no. 64056/00, § 31, 4 December 2007). 158.", "The Court notes that the gravity of the charges cannot by itself serve to justify the restriction of such a fundamental tenet of judicial proceedings as their openness to the public. It observes that the danger which defendants may present to other parties to the proceedings cannot be gauged solely on the basis of the gravity of the charges and the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors which may confirm the existence of a danger justifying the denial of public access to a trial. In the present case the decisions of the domestic courts gave no reasons why they considered the risk to the safety of the “participants” to be decisive. Nor does any relevant information emerge from the other material before the Court, including the documents in the criminal case file produced by the parties.", "Consequently, the Court finds that dispensing with a public hearing was not justified in the circumstances of the present case. 159. Lastly, the Court observes – and the Government did not argue to the contrary – that the appeal hearing before the Supreme Court of the Russian Federation was also closed to the public. It therefore follows that the appeal proceedings before the Supreme Court did not remedy the failure to conduct the trial before the City Court in public (see Belashev, cited above, § 87). 160.", "Having regard to these considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the applicant’s criminal case. (b) Other grievances 161. As to the remaining grievances in relation to the pre-trial and trial proceedings in the applicant’s criminal case, the Court first reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see, among other authorities, Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140).", "162. Furthermore, as regards Article 6 of the Convention, the Court also reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1. In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b), since they amount to a complaint that she did not receive a fair trial. It will therefore confine its examination to the question of whether the proceedings in their entirety were fair (see Rowe and Davis v. the United Kingdom [GC], no.", "28901/95, § 59, ECHR 2000-II). It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see, among others, Natunen v. Finland, no. 21022/04, § 39, 31 March 2009).", "163. Bearing in mind the above principles, the Court has examined the applicant’s remaining grievances relating to the preliminary investigation in her criminal case and the fairness of the trial. The applicant, who was assisted by two lawyers at various stages of the proceedings, was afforded an adequate opportunity to present her arguments and evidence, as well as to contest the prosecution’s arguments and evidence, in adversarial proceedings. The applicant’s allegation concerning unjustified limitations on her ability to have knowledge of the material in the criminal case file lacks substantiation. The Court also considers that it has not been shown that the facilities and time afforded by the authorities to study the case file was as such insufficient and that the applicant’s rights under Article 6 have not been breached in this respect (see paragraphs 36, 39, 41 and 44 above).", "164. The Court is not oblivious to the fact that the applicant chose that her child should not be separated from her during the period of detention before and pending the trial. Her request was granted and she was kept at premises of the detention centre designed for such purposes. Also, while the Court accepts that the necessary arrangements related to the applicant’s transport between the detention facility and the courthouse, as well as her confinement at the courthouse, could have created some difficulties for the defence, the available material before the Court does not disclose that they were such as to impair significantly the applicant’s ability to prepare her defence and present it at the trial (see also the Court’s findings in paragraphs 88-92 above). 165.", "The available material before the Court does not disclose that any other alleged violations were such as to impair the overall fairness of the proceedings under Article 6 § 1 of the Convention. There has therefore been no violation of Article 6 § 1 of the Convention on this account. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 166. In her application form of 13 May 2004 the applicant complained that the secret surveillance carried out prior to the court order of 9 June 1999, including monitoring of her conversations, had been in breach of Article 8 of the Convention, which reads as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 167. The applicant alleged that her conversations had been recorded in January and February 1999 without a court order, in breach of national law.", "In making this assertion, she referred to the material contained in the trial judgment and the description of “operational and search” measures set out on pages 110-115 of volume 16 of the criminal case file (see paragraph 49 above). She had first learnt about the interference in January 2002 when studying the case file before the trial. The information collected during the above “operational and search” measures had formed the basis for the prosecution. The applicant had unsuccessfully contested the measures by means of the procedures available during the trial and on appeal against her conviction. The trial court had had the power to exclude inadmissible evidence on account of a violation of the applicant’s individual rights.", "Lastly, the applicant stated that the court decision of 9 June 1999 (see paragraph 16 above) had authorised surveillance measures in respect of conversations which had taken place in her place of residence, rather than telephone calls on the fixed telephone line. 168. The Government first submitted that the applicant had not raised before the Court any complaint about telephone tapping in early 1999. In any event, the applicant had not complied with the six-month rule and should have challenged the relevant “investigative measure”. The monitoring of the applicant’s conversations for one hundred and eighty days had been authorised by the decision of 9 June 1999.", "B. The Court’s assessment 169. The Court observes at the outset that the applicant did not raise a general challenge to the legislative regime concerning secret surveillance measures (see, by contrast, Kennedy v. the United Kingdom, no. 26839/05, §§ 119 et seq., ECHR 2010‑...). Instead, the applicant pointed to a number of specific measures specifically affecting her, of which she had first learnt in January 2002.", "There appears to be a disagreement between the parties as to whether any measure of surveillance vis-à-vis the applicant was carried out before June 1999. 170. However, before delving into the substance of the complaint, the Court has to determine whether the applicant complied with the six-month rule of Article 35 § 1 of the Convention. According to the applicant, she submitted the relevant complaint to the Court on 13 May 2004 after having raised it in the criminal proceedings, which had ended on 4 December 2003. 171.", "The Court reiterates that in the absence of any specific remedies to be exhausted, for the calculation of the six-month time-limit reference should be made to the date when the interference occurred or, as in the present case, when an applicant learnt or ought to have learnt about it. The applicant learnt about the interference in January 2002, that is, more than six months before raising the matter before the Court. 172. However, it could be that having learnt of the non-authorised surveillance at the close of the preliminary investigation, the applicant considered that she would be able to usefully raise the related complaint at the trial before bringing the matter before the Court in May 2004 (see, mutatis mutandis, Skorobogatykh v. Russia, no. 4871/03, §§ 32-34, 22 December 2009; Akulinin and Babich v. Russia, no.", "5742/02, §§30-33, 2 October 2008; and Bykov v. Russia (dec.), no. 4378/02, 7 September 2006). 173. Having examined the available material, the Court is not satisfied that this matter was raised in substance in the course of the applicant’s criminal trial (see, mutatis mutandis, Lopata v. Russia, no. 72250/01, § 107, 13 July 2010, with further references, on the examination of complaints of pre-trial ill-treatment in the course of the applicants’ criminal trials).", "There is no sufficient factual basis for considering that any material allegedly obtained through secret surveillance of the applicant in January and February 1999 was used at the trial. 174. Thus, the six month time-limit should be calculated in the present case from the date on which the applicant first learnt about the alleged interference, that is, in January 2002. 175. It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 176. The applicant complained under Article 3 of the Convention about the video surveillance and strip searches in the detention facility; the conditions of detention in the remand centre and in the transit prison; the beatings inflicted on her by a warden and some other issues in relation to the detention regime. She also complained under Articles 5 and 6 of the Convention in relation to certain detention-related and post-conviction proceedings. Lastly, she raised a number of grievances with reference to Articles 8, 9, 10, 11, 13 and 18 of the Convention and Article 4 of Protocol No.", "7. 177. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.", "180. The Government contested the claim. 181. Having regard to the nature of the violations found and making its assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 182. Since no claim was made, there is no call to award any sum under this head. C. Default interest 183. 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 argument concerning the applicant’s victim status in relation to the period of her detention from 21 August to 16 October 2002 and dismisses it after the examination of the merits; 2. Declares admissible the complaints relating to the conditions of transport and confinement at the courthouse; the complaints concerning the lawfulness of the applicant’s detention from 6 March to 21 November 2002, the length of her detention, as well as the length and fairness of the criminal proceedings against the applicant; 3. Declares the remainder of the application inadmissible; 4. Holds that there has been no violation of Article 3 of the Convention on account of the conditions of transport and confinement at the courthouse; 5. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 6 March to 21 August 2002; 6.", "Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 21 August to 16 October 2002; 7. Holds that there has been no violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 16 October to 21 November 2002; 8. Holds that there has been a violation of Article 5 § 3 of the Convention; 9. Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings; 10. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a public hearing; 11.", "Holds that there has been no violation of Article 6 § 1 of the Convention in relation to the applicant’s other grievances concerning the criminal trial; 12. 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 chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 13. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]
[ "FIRST SECTION CASE OF KAZAKEVICHand 9 other “army pensioners” cases v. RUSSIA (Applications nos. 14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06) JUDGMENT STRASBOURG 14 January 2010 FINAL 14/04/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kazakevich and 9 other “army pensioners” cases v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in ten applications (nos.", "14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06) 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 ten Russian nationals (“the applicants”). The applicants’ names and the dates of their applications to the Court appear in the table below. 2. The applicant V. Kazakevich was represented by Mr R. Martinovskiy, a lawyer practising in Sebastopol. The applicant V. Zorin was represented by Mr D. Chilikov, a lawyer practising in Vologda.", "Other applicants were not represented by a lawyer. 3. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former representatives of the Russian Federation at the Court, and by Mr G. Matyushkin, the Representative of the Russian Federation at the Court. 4. The applicants complained inter alia of the quashing on supervisory-review of binding and enforceable judgments delivered in their favour between 2000 and 2004.", "5. On various dates the President of the First Section decided to communicate these complaints to the respondent Government. It was also decided in all cases to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits in several cases, but the Court rejected this objection. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASES 6. The applicants’ names and other details are indicated in the table below. All the applicants except Ms Odintsova are Russian retired servicemen entitled to payment of pensions by the State. Ms Odintsova is the widow of a colonel who died in the crash of a training aircraft. 7.", "On various dates the applicants sued the military commissions in their regions and, in case of Kazakevich and Osipov, the Ministry of Defense and the Federal Security Service (FSB) respectively, claiming payment of a pension or increase of pensions on account of their military service and, in the case of Odintsova, on account of her husband’s death. 8. The domestic courts granted the applicants’ claims (see details of the judgments in the table below). The judgments in cases of Sukchev and Zamakhayev were upheld on appeal; other judgments were not appealed against by the defendant authorities. All the judgments in the applicants’ favour thus became binding and enforceable on the dates indicated in the table below.", "9. On various dates the Presidiums of higher courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments in the applicants’ favour, considering that the lower courts misapplied the material law (see details of the judgments in the table below). In the cases of Odintsova and Osipov the Presidiums dismissed the applicants’ claims by the same judgments. In the other cases the Presidiums sent the cases back to the first instance courts, which later dismissed the applicants’ claims. 10.", "In five cases (Kazakevich, Odintsova, Osipov, Sukchev and Zamakhayev), the judgments in the applicants’ favour were not enforced. In the other five cases (Legkov, Afanasyev, Polyanskiy, Malakhov and Zorin), the judgments in the applicants’ favour were enforced as regards the lump sum and/or monthly awards. It appears that the payment of monthly awards was stopped a short time before or after the quashing of the judgments on supervisory review. 11. In the case of Odintsova, the Samarskiy District Court of Samara delivered on 27 May 2003 another judgment in the applicant’s favour, granting pension arrears and a sum of 2,500.00 Russian roubles (RUB) as compensation for non-pecuniary damage and costs.", "The judgment was not appealed against and became enforceable on 6 June 2003. The Government submitted that all awards had been credited to the applicant’s bank account on 12 August 2003 and that a separate sum of RUB 2,500.00 had again been credited to the applicant’s account on 9 November 2004 as a result of a clerical error. The applicant submitted that the pension arrears awarded by the court had been credited to her account on 3 September 2003 but the remainder award of RUB 2,500.00 had only been credited in November 2004. 12. On 24 December 2001 Ms Odintsova filed a separate lawsuit against the Ministry of Defense, claiming compensation in respect of pecuniary and non-pecuniary damage.", "On 2 October 2003 the Kirovskiy District Court of Samara rejected her claims. On 11 November 2003 the Samara Regional Court upheld the judgment on appeal. II. RELEVANT DOMESTIC LAW 13. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court’s judgment in the case of Sobelin and Others (see Sobelin and Others v. Russia, nos.", "30672/03 et al., §§ 33-42, 3 May 2007). 14. In 2001-2005 judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos.", "2191/03 et al., §§ 33-39, 21 June 2007). THE LAW I. JOINDER OF THE APPLICATIONS 15. Given that these ten applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 1 OF PROTOCOL No.", "1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS’ FAVOUR 16. All applicants complained of violations of Article 6 on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. Most of them also complained of violations of Article 1 of Protocol No. 1 in relation to the same facts. The Court will consider all the cases in the light of both provisions, which insofar 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 [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 1. Alleged abuse of the right to individual petition in the case of Polyanskiy (no. 43538/04) 17. In his observations on the admissibility and merits of 7 October 2007 the applicant challenged the impartiality of a judge of the Moscow City Court and the good faith of the former Russian Representative at the Court.", "The Government argued that these provocative statements were unacceptable within the meaning of Article 35 § 3 of the Convention. 18. The Court reiterates that the persistent use of insulting or provocative language may be considered an abuse of the right of application within the meaning of Article 35 § 3 (see Chernitsyn v. Russia, no. 5964/02, § 25, 6 April 2006). However, the Court does not discern any unacceptable statement by the applicant in the present case.", "While referring to the Government’s possible intention to distort the facts and challenging the judge’s attitude in his case, the applicant’s criticism was neither insulting, nor persistent (see Zhuk v. Russia, no. 42389/02, §§ 18-19, 14 November 2008). Accordingly the Court finds no ground to declare the application inadmissible as an abuse of the right of petition. The Government’s objection should therefore be dismissed. 2.", "Applicability of Article 6 19. The Government argued in some cases that Article 6 of the Convention was not applicable to the domestic litigations as they concerned the retired military personnel and could therefore not be qualified as “civil”. The Government thus submitted that the complaints were incompatible ratione materiae with the Convention. 20. The applicants disagreed, maintaining that Article 6 was applicable.", "21. The Court reiterates that civil servants can only be excluded from the protection embodied in Article 6 if the State in its national law expressly excluded access to a court for the category of staff in question and if this exclusion was justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland, [GC], no. 63235/00, §62, ECHR 2007‑...). The Court considers that these conditions were not satisfied in the present cases, as all applicants had access to courts in accordance with the domestic law. Accordingly, the Government’s objection should be dismissed in line with the Court’s decisions in numerous similar cases (see Dovguchits v. Russia, no.2999/03, §§ 19-24, 7 June 2007, and Kulkov and Others v. Russia, nos.", "25114/03 et al., § 19, 8 January 2009). 22. The Court further notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 23. All applicants argued in substance that the quashing of the binding and enforceable judgments in their favour by way of supervisory review had violated the principle of legal certainty and therefore their right to a court under Article 6. They provided a number of arguments supporting the lawfulness of the domestic courts’ awards in their favour and referred to similar judgments delivered by other Russian courts in respect of army pensioners. Most of the applicants thus insisted on their legitimate expectations to receive the court awards at issue, emphasising the fact that the authorities had failed to appeal against the judgments before they became binding and enforceable.", "24. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue were lawful: they were initiated by the defendant authorities within the time-limits provided for by domestic law. The regional courts quashed lower courts’ unlawful judgments, thus correcting flagrant injustice and erasing dangerous precedents. In the Government’s view, no expectation of any benefit could have arisen from such flawed judgments. They provided detailed information on the material law that had allegedly been ignored by the lower courts.", "The Government specified, in addition, that the first instance court violated the statute of limitations in the case of Osipov (no. 42059/04) and acted beyond its jurisdiction in the case of Afanasyev (no. 43505/04). They pointed out that some of the judgments at issue were nonetheless enforced until their quashing. Finally, the Government referred to the Committee of Ministers’ Resolution ResDH (2006)1 of 8 February 2006, which acknowledged positive developments in the supervisory review procedure.", "They concluded that the supervisory review of the judgments was exercised 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 and uniform administration of justice. 25. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII; Ryabykh v. Russia, no.", "52854/99, § 51-52, ECHR 2003‑IX). 26. The Court further recalls that it has already found numerous violations of the Convention on account of the quashing of binding and enforceable judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time. Some of these violations were found in similar and, on certain occasions, virtually identical circumstances involving retired servicemen (see Sergey Petrov v. Russia, no. 1861/05, 10 May 2007; Parolov v. Russia, no.", "44543/04, 14 June 2007, and Kulkov and others, cited above). In those cases the Court found that the quashing of final judgments in the applicants’ favour was not justified by circumstances of compelling and exceptional character. The Court finds no reason to come to a different conclusion in the present cases. 27. The arguments submitted by the Government in the present cases were addressed in detail and dismissed in previous similar cases.", "Misapplication of material law by the first instance courts does not in itself justify the quashing of binding and enforceable judgments on supervisory review, even if the latter was exercised within the one-year time-limit set in domestic law (Kot v. Russia, no. 20887/03, § 29, 18 January 2007). Nor can the Court discern any fundamental defect in the cases of Osipov and Afanasyev arising from the specific grounds put forward by the Government. In both cases, like in all others, the supervisory review was prompted by higher courts’ disagreement about the applicants’ entitlement to social benefits, which was determined in fair adversarial proceedings at the fist-instance (compare Protsenko v. Russia, no. 13151/04, §§ 30-34, 31 July 2008, and Tishkevich v. Russia, no.", "2202/05, §§ 25-26, 4 December 2008). Finally, while the aim of uniform application of domestic law may be achieved through various legislative and adjudicative means, it cannot justify disregard for the applicants’ legitimate reliance on res judicata (see Kulkov and Others, cited above, § 27). 28. The Court accordingly concludes that the quashing of the binding and enforceable judgments in the applicants’ favour amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention. 29.", "The Court further reiterates that the binding and enforceable judgments created an established right to payment in the applicants’ favour, which is considered as “possession” within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002). The quashing of these judgments in breach of the principle of legal certainty frustrated the applicants’ reliance on the binding judicial decisions and deprived them of an opportunity to receive the judicial awards they had legitimately expected to receive (see Dovguchits, cited above, § 35). There has accordingly been also a violation of that Article 1 of Protocol No.", "1. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF PROCEDURAL SHORTCOMINGS OF THE SUPERVISORY REVIEW PROCEEDINGS 30. In some cases the applicants also complained of unfairness of the supervisory review proceedings on account of various procedural defects. Ms Odintsova furthermore complained of the excessive length of the proceedings concluded by the judgment delivered on supervisory review.", "Given its finding that the applicants’ right to a court was violated by the quashing of the judgments in their favour by way of supervisory review (see paragraph 28 above), the Court does not find it necessary to examine separately the alleged procedural shortcomings of those proceedings. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENTS 31. Four applicants (Mr Kazakevich, Ms Odintsova, Mr Osipov and Mr Zamakhayev) also complained of a violation of Article 6 of the Convention and of Article 1 of Protocol No.", "1 on account of non-enforcement of the judgments which were quashed on supervisory review. Ms Odintsova complained in addition of delayed enforcement of the judgment of 27 May 2003 (see paragraph 11 above). The relevant parts of the Convention provisions referred to by the applicants are quoted above. 32. The Court reiterates that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the right to a court.", "Having regard to its finding of violations of Article 6 on account of the quashing of the judgments in supervisory-review proceedings (see paragraph 28 above), the Court finds that it is not necessary to examine separately the issue of their subsequent non-enforcement by the authorities (see Boris Vasilyev v. Russia, no. 30671/03, §§ 41-42, 15 February 2007; and Sobelin and Others, cited above, §§ 67-68). 33. A separate issue as to non-enforcement of judgments arises only in the cases of Kazakevich, Osipov and Zamakhayev as the judgments in the applicants’ favour remained unenforced for one year or more before they were quashed on supervisory review (see Kulkov and Others, cited above, § 36). The Court will also examine separately Ms Odintsova’s complaint regarding alleged non-enforcement of the judgment of 27 May 2003, which has never been quashed (see paragraph 11 above).", "A. Admissibility 34. The Government alleged that the applicants had not exhausted the domestic remedies available to them under domestic law. They notably referred to Chapter 25 of the Code of Civil Procedure allowing to complain about the authorities’ negligence and to Chapter 59 of the Civil Code opening a way to claim non-pecuniary damage. In the Government’s view the latter provision had proven its effectiveness in practice, as shown by several examples of domestic case-law. 35.", "The Court reiterates that it recently assessed the effectiveness of the remedies referred to by the Government and concluded that no effective domestic remedy was available in respect of non-enforcement or delayed enforcement of judgments (see Burdov v. Russia (no. 2), no. 33509/04, §§ 101-116, ECHR 2009‑...). The Government’s objection must therefore be dismissed. 36.", "The Court further notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1.", "Judgments in favour of Mr Kazakevich, Mr Osipov and Mr Zamakhayev 37. The Government argued that the delays in enforcement of these judgments were reasonable and justified. They referred to various procedural steps taken by the authorities to enforce these judgments prior their quashing on supervisory review. 38. The applicants maintained their complaints.", "39. The Court reiterates that an unreasonably long delay in enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III). The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, the amount and the nature of court award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "40. The Court notes that the binding and enforceable judgments in the applicants’ favour remained unenforced for one year or more. The enforcement of judicial awards was not complex, being limited to payment of monetary awards. The Court has frequently held that the authorities’ failure for such prolonged periods to honour their monetary debts under domestic judgments were not compatible with the Convention (see, among many others, Kozodoyev and Others v. Russia, nos. 2701/04, 3597/04, 11898/04, 31946/04 and 34826/04, § 11, 15 January 2009).", "It finds no reason to depart from this case-law in the present cases. 41. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. on account of prolonged non-enforcement of the judgments in favour of these three applicants. 2.", "Judgment of 27 May 2003 in favour of Ms Odintsova 42. The parties gave divergent accounts as to how and when the judgment of 27 May 2003 was enforced (see paragraph 11 above). They also submitted some contradictory financial documents on this issue. Having examined the material in its possession, the Court cannot find it established that the amount of RUB 2,500.00 was excluded from the sum credited to the applicant’s account on 3 September 2003 and that the full enforcement of the judgment was delayed until November 2004 as suggested by the applicant. Accordingly, the Court cannot find any violation on this count.", "V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 43. Referring to various provisions of the Convention, some applicants complained of dismissal by the domestic courts of their claims following the quashing of the judgments in their favour. Ms Odintsova also complained under Article 6 and Article 14 about the outcome of the proceedings which ended in the judgment of 11 November 2003 (see paragraph 12 above). She referred in particular to discrimination of her daughter as the latter was denied additional compensation allegedly due under the Civil Code. Some applicants furthermore complained of the impossibility to contest the judgments delivered on supervisory review before any other judicial instance.", "44. The Court reiterates that it does not review, in principle, the application of the national law made by domestic courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references). The domestic judgments dismissing the applicants’ claims and other materials at the Court’s disposal do not disclose any unlawfulness or arbitrariness and it is not for the Court to reassess the question of the applicants’ entitlement to social benefits under domestic law (see Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002).", "Nor does the Convention guarantee, as such, a right to appellate remedies in respect of the decisions taken by way of supervisory review: the mere fact that the judgment of the highest judicial body is not subject to further judicial review does not infringe the Convention (see Parolov, cited above, § 35). 45. Referring to Article 6 § 1 of the Convention, Ms Odintsova further complained about the excessive length of two sets of proceedings concluded by the judgments of 27 April 2001 and 11 November 2003. The Court finds that these complaints are inadmissible for the following reasons. The complaint relating to the former set of proceedings is out of time as it was lodged more than six months after the judgment of 27 April 2001.", "The complaint concerning the latter set of proceedings is manifestly ill-founded: the overall length of these proceedings was less than two years for two levels of jurisdiction. 46. Finally Ms Odintsova complained under Article 2 of Protocol No. 1 of a violation of her daughter’s right to education on account of delays in payment of the judgment debts. However, the Court considers this complaint to be a restatement of the applicant’s complaints relating to non-enforcement of the domestic judgments (see paragraphs 31 and 42 above).", "47. The Court concludes that all the above complaints must be rejected as inadmissible under Article 35 §§ 1, 3 and 4 of the Convention. VI. 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 1. The parties’ submissions 49. The applicants claimed in respect of pecuniary damage the sums that should have been paid to them in accordance with the domestic judgments in their favour. The applicants’ claims include the unpaid lump sum and/or monthly awards made by the courts. Some of the applicants included additional amounts for compensation of inflation losses for the period elapsed since the domestic judgments in their favour.", "In addition, the applicants claimed various amounts for non-pecuniary damage. The details of the applicants’ claims appear in the table below. 50. The Government disagreed and asked the Court to reject the applicants’ claims. As to pecuniary damage, the Government submitted that the Court must not substitute itself to the national courts which eventually dismissed the applicants’ claims under domestic law.", "Therefore, the applicants have no right to any pension or pension increases. As to possible inflation losses arising from enforcement delays, the applicants should have submitted the relevant claims to domestic courts. As to non-pecuniary damage, the Government considered the applicants’ claims to be excessive and unreasonable. 2. The Court’s assessment (a) Pecuniary damage 51.", "The Court recalls that the most appropriate form of redress in respect of the violations found would be to put the applicants as far as possible in the position they would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court considers that this principle should apply in the present cases as it did in numerous similar ones decided in the past (see Dovguchits, cited above, §48). 52.", "The Court therefore finds it appropriate to award the applicants the amounts they would have received under the domestic judgments. On the other hand, the Court cannot grant the applicants’ claims in so far as they include the monthly payments allegedly due after the quashing of the domestic judgments on supervisory review and the ensuing dismissal of the applicants’ claims by the domestic courts. Indeed, once the final judgments quashed, they ceased to exist under domestic law; the Court cannot restore the power of these judgments nor assume the role of the national authorities in awarding social benefits for the future. Therefore, the Court should only award the sums which must have been paid to the applicants until the quashing of the judgments in their favour and the final rejection of their claims at the domestic level (Tarnopolskaya and Others v. Russia, nos. 11093/07 et al., § 51, 7 July 2009).", "53. The Court also accepts the applicants’ claims relating to the loss of value of the court awards since the delivery of the judgments in their favour and finds it appropriate to award additional sums in this respect, where they were requested (see Kondrashov and Others v. Russia, nos. 2068/03 et al., § 42, 8 January 2009). 54. As the Government have not submitted any alternative method of calculation of the applicants’ pecuniary losses, the Court will determine the compensation on the basis of the calculations provided by the applicants.", "The Court accordingly awards the following amounts: RUB 81,000 (EUR 2,300) to Mr Kazakevich; RUB 37,943.84 (EUR 1,020) to Ms Odintsova; RUB 418,244.13 (EUR 11,370) to Mr Osipov; RUB 32,298.50 (EUR 910) to Mr Sukchev; RUB 127,931.81 (EUR 3,625) to Mr Zamakhayev; These amounts include the compensation for loss of value of the domestic court awards where such compensation was claimed by the applicants. The sums in Russian roubles are converted into Euros at the rate applicable on the date of submission of the applicants’ claims. 55. As regards the other five cases (Legkov, Afanasyev, Polyanskiy, Malakhov and Zorin), the Court notes that the domestic judgments in the applicants’ favour were enforced until their quashing on supervisory review (see paragraph 10 above). The applicants’ claims in these cases correspond to the amounts which were allegedly due after the dismissal of their claims at the domestic level.", "Having regard to its conclusion in paragraph 52 above, the Court dismisses the applicants’ claims for pecuniary damage in these five cases. (b) Non-pecuniary damage 56. With reference to its established case-law in similar cases the Court finds that the applicants have suffered non-pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the cases and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards to each applicant a sum of EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 57. In three cases (Kazakevich, Polyanskiy and Zorin) the applicants claimed certain amounts for costs and expenses (see details in the table below). The Government found those claims unsubstantiated. 58. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "Regard being had to the information in its possession and the above criteria, the Court decides to grant the applicants’ claims in these three cases. Accordingly, the Court awards 1,247.00 Ukrainian Hryvnias (UAH) (EUR 190) to Mr Kazakevich, RUB 1,960.90 (EUR 55) to Mr Polyanskiy and RUB 40,628.40 (EUR 1,130) to Mr Zorin. C. Default interest 59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaints concerning the quashing of the binding and enforceable judgments in supervisory-review proceedings and the non-enforcement of these judgments admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in all cases on account of the quashing of the judgments in the applicants’ favour by way of supervisory review; 4. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No.", "1 on account of prolonged non-enforcement of the judgments prior to their quashing in the cases of Kazakevich, Osipov and Zamakhayev and that there has been no violation of these provisions on account of enforcement of the judgment of 27 May 2003 in the case of Odintsova; 5. Holds that it is not necessary to consider separately the remainder of the applicants’ complaints relating to non-enforcement of the judgments and/or procedural shortcomings of the supervisory review proceedings; 6. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums to be converted into Russian roubles at the rate applicable at the date of the settlement: (i) in respect of pecuniary damage: EUR 2,300 (two thousand three hundred euros) to V. Kazakevich; EUR 1,020 (one thousand and twenty euros) to Y. Odintsova; EUR 11,370 (eleven thousand three hundred and seventy euros) to I. Osipov; EUR 910 (nine hundred and ten euros) to B. Sukchev; EUR 3,625 (three thousand six hundred and twenty five euros) to V. Zamakhayev; (ii) EUR 3,000 (three thousand euros) to each applicant in respect of non-pecuniary damage plus any tax that may be chargeable on these amounts; (iii) in respect of costs and expenses: EUR 190 (one hundred and ninety euros) to V. Kazakevich; EUR 55 (fifty five euros) to V. Polyanskiy; EUR 1,130 (one thousand one hundred and thirty euros) to V. Zorin; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident APPENDIX App. no. (date) Applicant (year of birth) judgment(s) court(s)/date(s) Amount(s) awarded supervisory review judgment court/date(s) Just satisfaction claims (Article 41) 14290/03 (2/04/03) Kazakevich Valery Yulyanovich (1951) Novorossiysk Garnison Military Court, 15/05/02, enforceable on 28/05/02 Order to allocate a pension Presidium of the Northern Caucasus Circuit Military Court, 27/05/03 RUB 134,246.00 (pecuniary damage); RUB 500,000.00 (non-pecuniary damage); UAH 1,247.00 (costs) 19089/04 (25/04/04) Odintsova Yelena Vladimirovna (1957) Samarskiy District Court of Samara, 24/03/04, enforceable 04/04/04 RUB 21,559.00 Presidium of the Samara Regional Court, 10/02/05 RUB 1,622,054.21 (pecuniary damage); RUB 100,000.00 (non-pecuniary damage) 42059/04 (03/11/04) Osipov Innokentiy Nikolayevich (1948) Leninskiy District Court of Ulyanovsk, 28/04/03, enforceable on 12/05/03 RUB 269,226.99 Presidium of the Ulyanovsk Regional Court, 01/07/04 RUB 418,244.13 (pecuniary damage); RUB 418,244.13 (non-pecuniary damage) 27800/04 (05/07/04) Legkov Aleksandr Sergeyevich (1953) Tverskoy District Court of Moscow, 27/09/02, enforceable on 8/10/02 RUB 176,408.97 (lump sum) plus increased monthly payments Presidium of the Moscow City Court, 08/07/04 RUB 89,031.00 (pecuniary damage); unspecified amount for non-pecuniary damage 43505/04 (26/11/04) Afanasyev Vladimir Petrovich (1952) Tverskoy District Court of Moscow, 23/08/02, enforceable on 03/09/02 RUB 13,619.44 (lump sum) plus increased monthly payments Presidium of the Moscow City Court, 3/06/04 RUB 250,202.00 (pecuniary damage); EUR 3,000.00 (non-pecuniary damage) 43538/04 (30/11/04) Polyanskiy Venomin Aleksandrovich (1938) Tverskoy District Court of Moscow, 11/10/02, enforceable on 21/10/02 RUB 232,512.66 (lump sum) plus increased monthly payments Presidium of the Moscow City Court, 10/06/04 RUB 218,269.20 (pecuniary damage); unspecified amount for non-pecuniary damage; RUB 1,960.90 (costs) 3614/05 (03/12/04) Malakhov Anatoliy Leonidovich (1939) Tverskoy District Court of Moscow, 08/07/02, enforceable on 18/07/02 RUB 104,988.80 (lump sum) plus increased monthly payments Presidium of the Moscow City Court, 09/06/04 Unspecified (the details of the applicant’s claim submitted out of time) 30906/05 (28/07/05) Zorin Vladimir Sergeyevich (1958) Vologda Town Court of the Vologda Region, 19/09/00, enforceable on 30/09/00 Order to recalculate the pension Presidium of the Vologda Regional Court, 5/03/05 RUB 69,979.62 (pecuniary damage); RUB 180,000.00 (non-pecuniary damage); RUB 40,628.40 (costs) 39901/05 (27/09/05) Sukchev Boris Mikhaylovich (1948) Sovetskiy District Court of Kazan, Republic of Tatarstan, 08/06/04, enforceable on 12/08/04 RUB 20,528.86 (lump sum) plus increased monthly payments Presidium of the Supreme Court of the Republic of Tatarstan, 01/06/05 RUB 93,177.90 (pecuniary damage); EUR 20,000.00 (non-pecuniary damage) 524/06 (2/11/05) Zamakhayev Valeriy Nikolayevich (1953) Sovetskiy District Court of Kazan, Republic of Tatarstan, 30/01/04, enforceable on 26/04/04 Order to recalculate pay arrears Presidium of the Supreme Court of the Republic of Tatarstan, 3/08/05 RUB 173,274.73 (pecuniary damage); RUB 100,000.00 (non-pecuniary damage)" ]
[ "FOURTH SECTION CASE OF MAJEWSKI v. POLAND (Application no. 52690/99) JUDGMENT STRASBOURG 11 October 2005 FINAL 11/01/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Majewski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrM.", "Pellonpää,MrK. Traja,MrL. Garlicki,MrJ. Borrego Borrego,MsL. Mijović, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 20 September 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 52690/99) 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 Lech Majewski (“the applicant”), on 18 June 1998. 2. The Polish Government (“the Government”) were represented by their Agent Mr. J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "On 24 August 2004 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1955 and lives in Szczecin, Poland.", "B. The first set of civil proceedings 1. Facts before 1 May 1993 5. On 10 November 1990 the applicant lodged a civil action for compensation against the State Treasury - the Białystok Remand Centre with the Białystok District Court (Sąd Rejonowy). He alleged that upon his arrival in the Białystok Remand Centre, on 14 December 1989, he had been beaten and insulted by the prison guards and had subsequently not received proper medical care.", "The applicant claimed that in consequence of the excessive use of force against him he had sustained a spinal injury and suffered permanent disability. At the first hearing held on 20 December 1990 the court appointed a lawyer under a legal aid scheme for the applicant and ordered a copy of the case‑file concerning the criminal investigation concerning the events of December 1989. On 31 January 1991 the court held a hearing at which the applicant’s court‑appointed lawyer, Mr B.Z., was present. The court stayed the proceedings. On 17 July 1992 the Białystok District Court resumed the proceedings.", "However, on 12 August 1992 it decided to stay them again in view of the fact that the criminal proceedings against the Governor of the Białystok Remand Centre were pending. 2. Facts after 1 May 1993 6. On 29 May 1995 the Białystok District Court resumed the proceedings. The court further decided that the Białystok Regional Court (Sąd Wojewódzki) was competent to deal with the case.", "7. On 18 January 1996 the Białystok Regional Court held the first hearing. In January 1997 the applicant was heard before the Trzcianka District Court. Between 18 September and 18 November 1997 the trial court held four hearings. 8.", "On 27 November 1997 the Białystok Regional Court gave judgment. It partly allowed the applicant’s action. The court acknowledged that the applicant had suffered moral damage as a result of the illegal actions of the state agents and awarded him compensation. The Regional Court dismissed the applicant’s allegations that the incident had caused a spinal injury and dismissed the remainder of his claims for compensation. 9.", "On 7 May 1998 the Białystok Court of Appeal (Sąd Apelacyjny) held a hearing and examined the appeal lodged by the State Treasury. The appellate court gave judgment in which it allowed the State Treasury’s appeal, quashed the impugned judgment, and dismissed the applicant’s action. 10. Subsequently, the applicant’s court-appointed lawyer refused to lodge a cassation appeal against this judgment on his behalf as he apparently found no legal grounds for it. B.", "The second set of civil proceedings 1. Facts before 1 May 1993 11. On 28 January 1991 the applicant lodged a civil action for compensation against the State Treasury- Szczecin Remand Centre with the Szczecin Regional Court (Sąd Wojewódzki). He claimed PLN 2,500 in compensation for an accident which had occurred in 1983, during his detention in the Szczecin Remand Centre. The applicant further complained that the medical treatment he had received at the material time had been inadequate.", "2. Facts after 1 May 1993 12. On 11 March 1994 the trial court held the first hearing. The applicant, who had been in detention since 1977, was not present at the hearing because he had failed to return to prison from leave. At that hearing, the court stayed the proceedings on the grounds that the applicant’s address could not be established.", "13. On 20 November 2000 the Szczecin Regional Court resumed the proceedings. 14. On 24 April 2001 the trial court held a hearing at which it ordered that an expert opinion be obtained. On 13 December 2001 the court held a second hearing at which it decided that the applicant would be heard by another court since he had been transferred to a different prison.", "On 11 February 2002 the applicant was heard before the Trzcianka District Court. On 26 March and 7 May 2002 the Szczecin Regional Court held hearings. 15. On 24 May 2002 the trial court gave judgment. It dismissed the applicant’s action.", "The applicant’s court-appointed lawyer lodged an appeal against that judgment. 16. On 13 November 2002 the Poznań Court of Appeal allowed his appeal, quashed the Regional Court’s judgment and remitted the case to the first‑instance court. 17. On 9 June 2004 the Szczecin District Court held a hearing at which it heard the applicant.", "18. On 21 June 2004 the court, sitting in camera, decided that an expert opinion be prepared. The expert opinion was submitted to the trial court on 27 October 2004. 19. On 3 November 2004 the applicant lodged with the Szczecin Regional Court a complaint alleging that his right to have his case examined within a reasonable time had been breached.", "He submitted that he had lodged a civil action on 28 January 1991 and despite the fact that he had not contributed to their length, the proceedings were still pending before the District Court. The applicant relied on the 2004 Act on complaints about a breach of the right to a trial within a reasonable time. At that time, the proceedings were pending before the District Court following the remittal of the case by the appellate court in 2002. According to the 2004 Act the Regional Court – being the court above the one conducting the impugned proceedings - was competent to examine the complaint (Section 4 § 1 of the 2004 Act, see the domestic law part below). 20.", "On 7 January 2005 the Szczecin Regional Court dismissed his complaint. The court examined only the course of the proceedings after the remittal of the case by the appellate court on 13 November 2002 and found no delays on the part of the District Court. As result, the court found that during this period the District Court had not violated the applicant’s right to have his case heard within a reasonable time. The Regional Court considered that it could not examine the part of the proceedings that had been pending between 1991 and 2002 before the Regional Court as this part of proceedings had already ended. The court stated: “...The District Court cannot be held responsible for possible delays that might have occurred before the Regional Court during the period between 24 May 1991 when the case was transferred to it and 14 May 2002 when the court gave a judgment...", "According to the provisions [of the 2004 Act] the Regional Court examining the complaint lodged by [the applicant] that the proceedings in his case before the District Court exceeded a reasonable time is not entitled to examine the course of the proceedings before the Szczecin Regional Court...” 21. It appears that the civil proceedings in this case are pending before the Szczecin District Court. II. RELEVANT DOMESTIC LAW 1. State’s liability for a tort committed by its official[1] 22.", "Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 23. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force.", "While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 25 below). Following the 2004 Amendment, Article 4171 was added which, in so far as relevant, reads as follows: “3. If damage has been caused by a failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” However, under the transitional provision of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 22 above) shall apply to all events and legal situations that subsisted before that date. 24. Under Article 442 of the Civil Code the claim for redress of damage caused by a tort becomes time-barred after the lapse of three years from the day on which the person who suffered the damage learns about the damage and about persons or entities liable to make reparation for it.", "However, in any case the claim expires after the lapse of ten years from the day on which the event that caused the damage occurred. That provision applies to situations covered by Article 417 of the Civil Code. 2. The 2004 Act[2] 25. On 17 September 2004 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”) entered into force.", "It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).” Section 4 provides, in so far as relevant: “1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings. 2.", "If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...” Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1.", "The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit.", "Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1.", "Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 26.", "The applicant complained that the length of both sets of the civil 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...” 27. The Government contested that argument in respect of the first set of proceedings. The Government failed to address the issue of the allegedly unreasonable length of the second set of proceedings. 28. With regard to the first set of proceedings the period to be taken into consideration began not on 10 November 1990, when the applicant started the proceedings, but only on 1 May 1993 when the recognition by Poland of the right of individual petition took effect.", "The period in question ended on 7 May 1998. It follows that the first set of proceedings lasted five years. 29. With regard to the second set of the proceedings the period to be taken into consideration also began on the date when the recognition of Poland of the right of individual petition took effect and not in 1991 when the applicant initiated the proceedings. The proceedings are still pending.", "The period to be taken into consideration as regards the second set of proceedings is thus twelve years and over [four months]. In assessing the reasonableness of the time in question the Court will have regard to the state of both cases on 1 May 1993. A. Admissibility 1. First set of proceedings 30. The Court first observes, with respect to the requirement of exhaustion of the domestic remedies in the first set of proceedings, that the applicant cannot avail himself of the remedies pursuant to Section 2 read together with Section 5, nor Section 18 of the 2004 Act as the civil proceedings in his case came to end on 7 May 1998, while he lodged his application with the Commission on 18 June 1998.", "What is more, the Court has already held that a civil action for compensation provided for by Article 417 of the Civil Code read together with Section 16 of the 2004 Act cannot be regarded as an effective remedy if, as in the applicant’s case, more than three years elapsed between the date of the final decision and the entry into force of the 2004 Act, on 17 September 2004 (see, Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005). 2. Second set of proceedings 31. With respect to the requirement of exhaustion of the domestic remedies in the second set of proceedings, the Court notes that the Government did not address this issue. Nevertheless, the Court notes that the applicant made use of the remedy provided for by the 2004 Act and lodged a complaint about the unreasonable length of the second set of the proceedings.", "The Szczecin Regional Court dismissed his complaint. The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of the complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42). 32.", "Accordingly, the Court finds that the applicant exhausted domestic remedies in respect of his complaint under Article 6 § 1 of the Convention. 33. The Court notes that the applicant’s complaint under the 2004 Act failed. Therefore he can still claim to be 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 reiterates that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto.", "Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, with further references). 34. The Court notes that the national authorities are in principle better placed than an international court to evaluate the facts of the case. In addition, the Court accepts that the domestic courts enjoy a certain margin of appreciation in assessing whether the length of proceedings in the case before them exceeded a reasonable time.", "Nevertheless, in their assessment and appreciation they must apply standards which are in conformity with the principles embodied in the Convention as developed in the case‑law of the Court. In this connection the Court reiterates that the criteria laid down in the Court’s case-law as regards the reasonableness of the length of proceedings are, in particular, the complexity of the case, the conduct of the applicant and that of the relevant authorities, and the importance of what was at stake for the applicant in the litigation. 35. The Court has already indicated on a great number of occasions, that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case taken as a whole. The Court’s approach consists in examining the overall length of proceedings and in covering all stages of the proceedings.", "In the present case the Court notes that the Szczecin Regional Court examined only the period of time after the remittal of the case by the appellate court, i.e. after 13 November 2002. The domestic court did not take into consideration the overall period of the examination of the case by the domestic courts as required by the constant case‑law of the Convention organs. In particular, the Szczecin Regional Court did not consider the period between January 1991, when the proceedings started, and May 2002, when the first-instance judgment was given by the domestic court. Despite the fact that the Regional Court noted that there might have been delays at the earlier stage of the proceedings, nevertheless, it dismissed the applicant’s complaint that the proceedings in his case exceeded reasonable time as it established that it was called to examine only the conduct of the court before which the proceedings were pending at the time of examination of the complaint.", "36. The Court was in a previous decision satisfied that the domestic court had acknowledged the infringement of the Convention, even if it formally limited its examination to a certain period of time. However, it took into account the state of the proceedings at that time and found a violation of the applicant’s right to a hearing without unjustified delay (see Dubjakova v. Slovakia, (dec), no 67299/01, 19 October 2004). On another occasion, the Court found that the domestic court offered sufficient acknowledgement of the infringement of the right under the consideration, despite the fact that the latter examined separately different stages of the proceedings. Nevertheless, the examination covered all stages of the domestic proceedings (see Bako v Slovakia, (dec), no 60227/00, 15 March 2005).", "That was not the case in the instant proceedings. Therefore, the Court considers that the Szczecin Regional Court in examining the applicant’s complaint that the length of the proceedings in his case exceeded a reasonable time, failed to apply the standards which were in conformity with the principles embodied in the Court’s case-law. Finally, the Court notes that it is not necessary to establish whether the Regional Court’s approach resulted from an error of interpretation or from the construction of the 2004 Act since, in any event, the domestic court’s finding that the length of the proceeding in the applicant’s case did not exceed a reasonable time resulted from the examination of only one stage of the proceedings which could not have afforded appropriate protection to the applicant. 3. Conclusion 37.", "Consequently, the Court finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. The Court will therefore declare it admissible. B. Merits 38.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999). 39. With regard to the present case the Court notes that the first set of proceedings lasted, within the Court’s jurisdiction ratione temporis, five years while the second set of proceedings has been pending since 1991.", "The proceedings, in particular the second set, were therefore inordinately lengthy and only exceptional circumstances could justify their overall length. 40. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 41. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that the length of both sets of civil 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 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 43. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage and EUR 75,000 in respect of non-pecuniary damage. 44. The Government contested these claims and found them exorbitant. 45.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards award him [EUR 6,000] under that head. B. Costs and expenses 46.", "The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. 47. The Government did not express an opinion on the matter. 48. 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] under this head. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident [1] For a more detailed rendition of the relevant domestic legal provisions see Ratajczyk v. Poland (dec.), no.", "11215/02 [2]. For a more detailed rendition of the relevant domestic legal provisions see Michalak v. Poland (dec.), no. 24549/03, §§ 12‑23, to be published in ECHR 2005-... – also available on the Court’s Internet site (http://www.echr@coe.int)." ]
[ "THIRD SECTION CASE OF KUMITSKIY AND OTHERS v. RUSSIA (Application no. 66215/12 and 4 other applications - see appended list) JUDGMENT STRASBOURG 10 July 2018 FINAL 10/10/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kumitskiy and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková,Jolien Schukking,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in 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 Russian Government (\"the Government\") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applications were communicated to the Russian Government (“the Government”). THE FACTS 4.", "The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained that they had been unfairly convicted of drug offences following entrapment by State agents. In application no. 48523/15, the applicant also raised other complaints under the provisions of the Convention.", "As regards application no. 3436/15, on 31 October 2013 the Levokumskiy District Court of the Stavropol Region found the applicant guilty of three counts of an attempted drug sale “committed with the same intent” on 10 and 17 May and 19 June 2013, as well as declared him guilty of unlawful purchase and storage without an intent to sell of a large quantity of drugs, seized from him on 19 June 2013. The applicant was sentenced to ten years and a month of imprisonment. The conviction and sentence were upheld on appeal by the Stavropol Regional Court on 23 January 2014. In May 2015 the Deputy Prosecutor of the Stavropol Region asked the Presidium of the Regional Court to amend the conviction by excluding episodes of 17 May and 19 June 2013 “in view of the lack of a criminal conduct [in the applicant’s actions]” and to uphold the conviction in respect of the episode on 10 May 2013.", "The Deputy Prosecutor argued, in particular, that the “operative experiment” in the course of which the applicant had sold drugs on 10 May 2013 had been properly authorised by the acting head of the district police department and had been recorded, and thus there was no need to perform subsequent “operative experiments” in the form of the test purchase on 17 May and 19 June 2013. On 30 June 2015 the Presidium of the Stavropol Regional Court accepted the Deputy Prosecutor’s request for the revision of the final conviction by virtue of Article 401 of the Russian Criminal Code, annulled the conviction in respect of the two episodes of drug sale on 17 May and 19 June 2013, declared the applicant guilty of an attempted drug sale on 10 May 2013 and sentenced him to eight years and one month of imprisonment. The Presidium noted that having conducted “the operative experiment” on 10 May 2013 the police had already established and recorded the applicant’s criminal activity. However, the police officers had not prevented the applicant’s subsequent criminal activities and “had again, on 17 May and 19 June 2013 performed similar operative measures”. The Presidium concluded that the applicant’s conviction of episodes of 17 May and 19 June 2013 had therefore been based on unlawfully obtained evidence and thus should be voided.", "As regards the episode on 10 May 2013, it observed a video recording of the “test purchase” and noted that the applicant had talked about future drug sales. It then read out a statement by a witness M. who had testified that “the buyer had not incited anyone to sell drugs” when they were in the “company drinking alcohol”. The Presidium concluded that there was no indication of the police entrapment on 10 May 2013. DOMESTIC LAW AND PRACTICE A. Review of final judgments by way of cassation procedure 6.", "Title 3, Section XIII of the Code of Criminal Procedure (here and after – the CCrP) of 2002 (“Procedure for review at second instance”) (Часть 3, Раздел XIII “Производство в суде второй инстанции”) stipulates in Article 390 § 2 that the decisions taken by the second-instance courts on appeal acquire binding force immediately. 7. On 29 December 2010 Federal Law no. 433-FZ, which entered into force on 1 January 2013, amended the Code by introducing a new Chapter 47.1 (“Cassation procedure”) (“Производство в суде кассационной инстанции”). 8.", "Article 401.2 (“Right to lodge a cassation appeal”) of the Code prescribed a list of persons who were entitled to lodge a cassation appeal against any judicial act. Paragraph 3 of the same Article introduced a one‑year time-limit for lodging a cassation appeal against a judicial act which had become final and provided for a possibility to reset that time‑limit on certain grounds. 9. The new Article 401.6 provided safeguards against cassation revision of final judgments and decisions where revision could aggravate the situation of a convicted person, an acquitted person, or a person in respect of whom a criminal prosecution had been terminated. First, such revision was possible only within one year after these judgments or decisions had become final.", "Second, the cassation appeals were further restricted by the substantive criterion allowing a review only if a judgment breached the law “to an extent which distorted the essence and meaning of a judicial decision as an act of administration of justice”. 10. On 19 December 2014 the State Duma adopted Federal Law no. 518-FZ, approved by the Council of the Federation on 25 December 2014, and signed by the President on 31 December 2014. The Law amended Article 401.2 of the Code by removing any time bars for lodging cassation appeals.", "The provisions of Article 401.6 remained in force. B. Re-opening of criminal proceedings in view of new or newly discovered circumstances 11. The CCrP provides for a possibility to reopen proceedings in a criminal case when a violation of a Convention right has been found by this Court. The relevant provisions read as follows: Article 413. Grounds for reopening of proceedings in a criminal case due to new or newly discovered circumstances “1.", "Final judgments ... may be annulled and the proceedings in a criminal case reopened due to new or newly discovered circumstances ... ... 4. New circumstances are ... ... 2) A finding by the European Court of Human Rights of a violation of [Convention provisions] during consideration of a criminal case by a Russian court ...” Article 415. Initiation of [revision] proceedings “5. The Presidium of the Supreme Court of the Russian Federation revises ... [judgments] under circumstances listed in subparagraphs 1 and 2 of Article 413 of the Code upon application by the President of the Supreme Court of the Russian Federation within one month. Having considered the [above] application, the Presidium ... annuls or alters the judicial decisions in a criminal case in line with ... the judgment of the European Court of Human Rights ...” Article 419.", "Proceedings in a criminal case after annulment of judicial decisions “Judicial proceedings in a criminal case after annulment of judicial decisions due to new or newly discovered circumstances and the lodging of appeals against new judicial decisions follow the general rules [established by the Code].” C. Russian Supreme Court’s approach to cases concerning police entrapment 12. In 2016 the Russian Supreme Court published an extensive report summarising the legal positions of the European Court of Human Rights in cases where a violation of Article 6 § 1 of the Convention has been found in view of the applicants’ conviction as a result of the police entrapment. It has since issued a number of similar interpretative summaries of the Court’s case-law on this subject. In addition, relying on Article 415 § 5 of the Russian Code of Criminal Procedure, the Presidium of the Russian Supreme Court has regularly authorised the re-opening of criminal proceedings in view of the fact that the European Court of Human Rights found a violation of Article 6 § 1 of the Convention following the Russian courts’ failure to effectively conduct the review of the defendants’ arguments that the criminal offence had been committed as a result of the police entrapment (see for example the Presidium’s decision no. 28-P17 issued on 12 April 2017 in response to the Court’s decision in the case of Ulyanov and Others v. Russia [Committeee], nos.", "22486/05 and 10 others, 9 February 2016). THE LAW I. JOINDER OF THE APPLICATIONS AND THE GOVERNMENT’S PRELIMINARY OBJECTION IN APPLICATION No. 3436/15 13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 14.", "The Court further reiterates the Government’s objection raised in respect of application no. 3436/15. In particular, the Government informed the Court that on 15 May 2015 the Deputy Prosecutor of the Stavropol Region lodged a cassation application with the Stavropol Regional Court seeking review of the trial and appellate judgments of 31 October 2013 and 23 January 2014, respectfully. On 30 June 2015, having relied on Article 401 of the Russian Code of Criminal Procedure regulating cassation proceedings (see paragraphs 8-10 above), the Presidium of the Stavropol Regional Court reviewed the applicant’s conviction in respect of the two out of three counts of drug sale, those on 17 May and 19 June 2013, and having found that the conviction of those two episodes resulted from the entrapment by the police, acquitted the applicant of the charges related to those two episodes. At the same time the Presidium held that the episode on 10 May 2013 should be qualified as an attempt to sell drugs.", "15. The Court observes that, in order to deprive an individual of his or her status as a “victim”, the national authorities have to acknowledge, either expressly or in substance, and then afford redress for, the breach of the Convention (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 66-71, 2 November 2010 and Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996‑III, p. 846, § 36). 16. On the facts of the case, the Court cannot agree with the Government’s statement that the applicant’s amended conviction was based solely on evidence which was not obtained as a result of police actions.", "In particular, there is nothing in the Presidium’s decision to suggest that it has properly examined the issue of police incitement in the applicant’s case in respect of the first episode of the attempted drug sale on 10 May 2013. The Presidium merely noted the absence of the need for the two test purchases on 17 May and 19 June 2013, as the episode on 10 May 2013 had already been properly recorded. It then looked into a vague statement by a witness and a video recording of the actual test purchase, which in its view did not contain any indication of the police entrapment. The Court observes that the Presidium did not verify the existence of information implicating the applicant in drug trafficking prior to the first contact between him and the buyer, acting upon the police instructions, on 10 May 2013, and did not assess the content of that information. It did not request relevant materials concerning the allegedly pre-existing “operational information” incriminating the applicant before the “operative experiment” on 10 May 2013 and did not hear a single witness about the early stages of police involvement when they had allegedly learned about the applicant’s drug dealings.", "The Presidium made no attempts to check the allegations of the police and accepted their uncorroborated argument that they had had good reasons for suspecting the applicant. 17. In view of the above considerations, the Court dismisses the Government’s preliminary objection in respect of application no. 3436/15. Accordingly, the applicant can still claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of Article 6 of the Convention in respect of police incitement related to the first episode (see, for similar reasoning, Vanyan v. Russia, no.", "53203/99, §§ 37‑39, 15 December 2005). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicants complained principally that they had been unfairly convicted of drug offences which they had been incited by State agents to commit and that their plea of entrapment had not been properly examined in the domestic proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 19.", "The Court reiterates that absence in the national legal system of a clear and foreseeable procedure for authorising test purchases of drugs remains a structural problem which exposes applicants to an arbitrary action by the State agents and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Veselov and Others v. Russia, nos. 23200/10 and 2 others, § 126, 2 October 2012). 20. The Court has consistently found a violation of Article 6 § 1 of the Convention on account of the deficient existing procedure for authorisation and administration of test purchases of drugs in the respondent State and the domestic courts’ failure to adequately address the applicant’s plea of entrapment by taking necessary steps to uncover the truth and to eradicate the doubts as to whether the applicant had committed the offence as a result of incitement by an agent provocateur (see Veselov and Others, cited above, §§ 126‑28; Lagutin and Others v. Russia, nos. 6228/09 and 4 others, §§ 124‑25, 24 April 2014; Lebedev and Others v. Russia, nos.", "2500/07 and 4 others, §§ 12‑16, 30 April 2015; and Yeremtsov and Others v. Russia, nos. 20696/06 and 4 others, §§ 17‑21, 27 November 2014). 21. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the criminal proceedings against the applicants were incompatible with a notion of a fair trial.", "22. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III. REMAINING COMPLAINTS 23. In application no.", "48523/15, the applicant also raised other complaints under various Articles of the Convention. 24. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26. The applicants claimed various amounts in respect of non‑pecuniary damage. 27.", "The Government contested the claims. 28. The Court reiterates that when an applicant has been convicted despite an 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 a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). The Court, having regard to the fact that domestic law, in particular in Articles 413 and 415 of the Russian Code of Criminal Procedure (see paragraph 11 above), provides that criminal proceedings may be reopened if the Court finds a violation of the Convention, and given the position of the Russian Supreme Court in relation to the application by the national courts of the Convention principles in cases dealing with the police entrapment (see paragraph 12 above), considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see Zadumov v. Russia, no.", "2257/12, §§ 80-81, 12 December 2017, and most recently, Hokkeling v. the Netherlands, no. 30749/12, § 68, 14 February 2017). B. Costs and expenses 29. Mr Akhmadiyev (application no.", "48523/15) claimed 1,000 euros (EUR) for compensation of his lawyer’s fees. Mr Volchkov (application no. 3436/15) asked to award his representative compensation in accordance with the Court’s case-law. 30. The Government submitted that any compensation should be awarded in accordance with the Court’s established case-law.", "31. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to no documents in its possession in support of the applicants’ claims and the above criteria, the Court rejects the applicants’ claims as unsubstantiated. FOR THESE REASONS, THE COURT, 1. Decides, unanimously, to join the applications and dismisses the Government’s preliminary objection in relation to application no.", "3436/15; 2. Declares, unanimously, the complaints concerning the applicants’ convictions of criminal offences that were incited by the State agents admissible, and the remainder of application no. 48523/15 inadmissible; 3. Holds, unanimously, that these complaints disclose a breach of Article 6 § 1 of the Convention; 4. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants; 5.", "Dismisses, unanimously, the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pastor Vilanova and Elósegui is annexed to this judgment. H.J.F.A. PARTLY DISSENTING OPINION OF JUDGE PASTOR VILANOVA JOINED BY JUDGE ELÓSEGUI (Translation) 1.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party”. Interpretation of this provision may attract criticism, particularly when the Court exempts the State from the duty to compensate the non-pecuniary damage sustained by the applicant(s) exclusively on the basis of the possibility that proceedings it has declared unfair may be reopened. 2. The image used by Judge Bonello in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999‑II) comes to mind: “Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras”.", "I have already had occasion to protest at a rigorous application of Article 41, which ultimately results in relieving the State of responsibility for its failings (see Paunović and Milivojević v. Serbia, no. 41683/06, 24 May 2016). I find the present case even more problematic in that the Court, while acknowledging the existence of a structural problem (see paragraph 19 of the judgment), takes no measures to counteract it. On the contrary, the victims are merely invited to seek the reopening of the criminal proceedings which the Court considers contrary to Article 6 § 1 of the Convention. As some of the applicants’ judicial upsets began in 2011, they are hardly likely to want to return before the law courts.", "3. It is therefore to be feared that their success before our Court amounts to a Pyrrhic victory, that is to say one with no real impact on the applicants’ private sphere. I cannot but conclude that, in this scenario, the Convention loses all its effectiveness, whereas this is a guiding principle (see Paposhvili v. Belgium [GC], no. 41738/10, § 182, ECHR 2016) constantly reiterated by our Court since the landmark judgment Airey v. Ireland of 9 October 1979. 4.", "Beyond those preliminary observations, however, I find that the current application of Article 41 poses a problem, particularly in criminal matters such as this one. From a theoretical point of view, it is true that the Court should award nothing in just satisfaction where two criteria are satisfied concurrently: a finding of a violation and full compensation for (or total elimination of) the consequences at domestic level after the European ruling. At first sight, that approach appears entirely in keeping with the principle of subsidiarity. This would be true provided that the subsequent reopening of proceedings at domestic level were carried out in good faith (see Emre v. Switzerland (no. 2), no.", "5056/10, 11 October 2011), completed within a reasonable time and fair compensation awarded for the damage where appropriate. In our case those guarantees have not been supplied by the State, which bears the burden of proof. It confines itself, in its observations, to indicating that a finding of a violation of the Convention would be sufficient because of the possibility of reopening the criminal proceedings. Nevertheless, despite the existence of that statutory basis (see paragraph 11), we have no information about its actual results. Furthermore, we do not know whether the applicants, in the event of an acquittal, will be able to sue the State on grounds of a malfunctioning of the public judicial service.", "And even if that were possible, the Grand Chamber has already ruled that it would appear excessive to require victims to institute fresh proceedings at domestic level in order to obtain just satisfaction. Such journeying through the courts has been deemed “hardly consistent with the effective protection of human rights” as it would lead “to a situation incompatible with the aim and object of the Convention” (see Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006‑IX). 5. Lastly, the majority depart, without giving reasons, from the well‑established case-law of the Court in this area which awards applicants compensation for non-pecuniary damage whilst at the same time considering that a new trial or reopening of criminal proceedings is an appropriate means of curing the violation found (see Baltiņš v. Latvia, no.", "25282/07, 8 January 2013; Sepil v. Turkey, no. 17711/07, 12 November 2013; and Pătraşcu v. Romania, no. 7600/09, 14 February 2017). 6. In conclusion, I consider that the solution favoured by the majority not only conflicts with the purpose of Article 41, but also contradicts the Court’s case-law.", "Accordingly, I have voted against point 4 of the operative provisions of the judgment. In my view, legal certainty requires a more consistent approach to this problem. APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (entrapment by State agents) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Test purchase date Type of drugs Specific grievances Final domestic judgment (appeal court, date) 66215/12 11/09/2012 Aleksey Fedorovich Kumitskiy 27/01/1983 Podkopayev Gennadiy Valeryevich Novocherkassk 15/05/2011 cannabis pressure to sell, fellow drug user, lack of incriminating information Rostov Regional Court 14/03/2012 73145/12 11/09/2012 Igor Vladimirovich Glushchenko 07/12/1972 Vinogradov Aleksandr Vladimirovich Kostroma 14/04/2011 desomorphine 26/04/2011 desomorphine fellow drug user, lack of incriminating information lack of incriminating information, fellow drug user Kostroma Regional Court 26/04/2012 3436/15 25/03/2014 Sergey Aleksandrovich Volchkov 28/08/1970 Khlebnikov Aleksandr Leonidovich Levokumskoye hashish 10/05/2013 fellow drug user, repeated calls, undercover policeman, lack of incriminating information Presidium of the Stavropol Regional Court, 30/06/2015 48523/15 17/09/2015 Rustam Ranzisovich Akhmadiyev 20/05/1988 Khodyakov Vasiliy Vasilyevich Krasnoyarsk 14/01/2014 hashish Repeated calls, lack of incriminating information Krasnoyarsk Regional Court, 17/03/2015 51391/15 05/10/2015 Fedor Gennadyevich Nikolayev 21/08/1986 Lavrova Yelena Viktorovna Obninsk amphetamine 16/05/2014 repeated calls, lack of incriminating information Kaluga Regional Court, 06/04/2015" ]
[ "FIRST SECTION CASE OF ORLANDI AND OTHERS v. ITALY (Applications nos. 26431/12; 26742/12; 44057/12 and 60088/12) JUDGMENT STRASBOURG 14 December 2017 FINAL 14/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Orlandi and Others v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Kristina Pardalos, President,Guido Raimondi,Aleš Pejchal,Krzysztof Wojtyczek,Ksenija Turković,Pauliine Koskelo,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 12 September and 14 November 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in four applications (nos.", "26431/12, 26742/12, 44057/12 and 60088/12) 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 eleven Italian nationals and one Canadian national, namely Ms Francesca Orlandi and Ms Elisabetta Mortagna, Mr D.P. and Mr G.P., Mr Mario Isita and Mr Grant Bray, Mr Gianfranco Goretti and Mr Tommaso Giartosio, Mr Fabrizio Rampinelli and Mr Alessandro Dal Molin, and Mr Antonio Garullo and Mr Mario Ottocento (“the applicants”), on 20 April 2012, 6 July 2012, and 11 September 2012 respectively (see Annex for details). 2. The applicants in application no. 60088/12 were represented by Mr Francesco Bilotta, Mr Antonio Rotelli, Ms Maria Federica Moscati and Mr Raffaele Torino; the remaining applicants were represented by Ms Maria Elisa D’Amico, Mr Massimo Clara, Mr Cesare Pitea, and Ms Chiara Ragni, all lawyers practising in Italy.", "The Italian Government (“the Government”) were represented by their Agent, Ms Ersiliagrazia Spatafora. 3. The applicants alleged that the authorities’ refusal to register their marriages contracted abroad, and more generally the impossibility of obtaining legal recognition of their relationship, in so far as the Italian legal framework did not allow for marriage between persons of the same sex nor did it provide for any other type of union which could give them legal recognition, breached their rights under Articles 8, 12 and 14. 4. On 3 December 2013 the Chamber to which the case was allocated decided that the complaints under Article 8 alone and Article 14 in conjunction with Articles 8 and 12 were to be communicated to the Government.", "It further decided to join the cases. On the same day it decided to grant anonymity to two of the applicants in application no. 26431/12 under Rule 47 § 3 of the Rules of Court. 5. Written observations were also received from FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, as well as from the Associazione Radicale Certi Diritti, the Helsinki Foundation for Human Rights, Alliance Defending Freedom, and ECLJ (European Centre for Law and Justice), which had been given leave to intervene by the Vice-President of the Chamber (Article 36 § 2 of the Convention).", "Mr Pavel Parfentev on behalf of seven Russian NGOS (Family and Demography Foundation, For Family Rights, Moscow City Parents Committee, Saint-Petersburg City Parents Committee, Parents Committee of Volgodonsk City, Regional Charity Social Organization Parent’s Culture Centre “Svetlitsa”, and social organization “Peterburgskie mnogodetki”) and three Ukrainian NGOS (the Parental Committee of Ukraine, the Orthodox Parental Committee, and the social organisation Health Nation), had also been given leave to intervene by the Vice-President of the Chamber. However, no submissions have been received by the Court. 6. On 15 December 2016 the President of the Section to which the case was allocated requested the applicants, under Rule 54 § 2 (a) of the Rules of Court, to submit factual information. 7.", "By letters of 29 December 2016, 30 January 2017 and 7 April 2017, the applicants in applications nos. 26431/12, 26742/12, 44057/12 submitted their reply, which was sent to the Government for information. 8. The letter of request sent to the applicants’ legal representative in application no. 60088/12, as well as a subsequent letter, returned to the Court undelivered.", "9. By a letter of 24 June 2017 the Government submitted a factual update which was transmitted to the applicants for information. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicants’ details can be found in the Annex.", "A. The background to the case 1. Ms Francesca Orlandi and Ms Elisabetta Mortagna 11. These two applicants met in February 2007, and in 2009 they entered into a stable and committed relationship with each other. 12.", "On 11 October 2009 Ms Mortagna moved to Toronto, Ontario, Canada for work purposes. A month later the two applicants decided to get married and on 27 August 2010 they married in Toronto. 13. In the meantime, on 2 April 2010, Ms Mortagna’s employment came to an end and as a result she was no longer entitled to a residence permit. She therefore returned to Italy and since then has been cohabiting with Ms Orlandi.", "14. On 18 April 2011 their physical cohabitation was registered and since then they have been considered as a family unit for statistical purposes. 15. On 9 September 2011 the two applicants asked the Italian Consulate in Toronto to transmit to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage. 16.", "On 8 November 2011 the relevant documents were transferred. 17. On 13 December 2011 the Commune of Ferrara informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples, and that although the law did not specify that couples had to be of the opposite sex, doctrine and jurisprudence had established that Article 29 of the Constitution referred to the traditional concept of marriage, understood as being a marriage between persons of the opposite sex. Thus, the spouses being of different sex was an essential element to qualify for marriage.", "Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order. 2. Mr D.P. and Mr G.P.", "18. These two applicants, who live in Italy, met in 2007 and entered into a stable and committed relationship with each other. 19. On 9 January 2008 they started cohabiting in G.P.’s apartment, although D.P. maintained formal residence in his own apartment.", "In 2009 G.P. purchased a second property which, in the absence of any legal recognition, for practical and fiscal reasons remained in his name only. In 2010 G.P. purchased, through a mandate in the name of D.P (for the purposes of purchasing such property), a garage. In June 2011 the couple moved into D.P.’s apartment and established their home there.", "They have since been considered as a family unit for statistical purposes. 20. On 16 August 2011 the two applicants got married in Toronto, Ontario, Canada. On 10 October 2011 they opened a joint bank account. On 12 January 2012, before a notary, the two applicants appointed each other reciprocally as guardians in the event of incapacitation (amministratore di sostegno).", "21. Following the applicants’ request, on 7 January 2012, the Italian Consulate in Toronto transmitted to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage. 22. On 20 January 2012, the Commune of Peschiera Borromeo informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples.", "Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order. 23. Following the entry into force of the new law (see paragraph 97 below), on 12 September 2016 the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received.", "24. According to documents dated 31 March 2017 submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 21 November 2016. A certification of this registration, submitted by the Government, is dated 16 May 2017. 3. Mr Mario Isita and Mr Grant Bray 25.", "The two applicants met in Italy in 2002 and entered into a stable and committed relationship with each other. Mr Bray, who is Canadian, did not have a residence permit in Italy at the time, Mr Isita therefore travelled repeatedly to Canada. 26. On 18 July 2005 the couple married in Vancouver, Canada. In the same year Mr Isita designated Mr Bray as his heir.", "In 2007 Mr Isita retired and moved to Canada permanently, although he maintained formal residence in Italy. 27. In 2004 the two applicants had purchased some land together; in 2007 the couple purchased a further piece of land, and in 2008 they purchased a house and in 2009 a commercial property with an annexed cottage. In 2009 they also opened a joint bank account. 28.", "On 10 October 2011 they asked the Civil Status Office to register their marriage contracted in Canada. 29. On 25 November 2011 the Commune of Naples informed the two applicants that no such registration was possible. The decision noted that the Italian legal order did not allow marriage between same-sex couples as reiterated in Circular no. 55 of 2007 issued by the Ministry of Internal Affairs.", "30. Following guidance from the Mayor of Naples, directing the Civil Status Office of the commune to register such marriages (see below), Mr Mario Isita and Mr Grant Bray re-submitted an application to have their marriage registered. According to information sent to the applicants by email, their request was granted on 6 August 2014. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) the registration was cancelled on an unspecified date. 31.", "On an unspecified date, following the entry into force of the new law, the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received. 32. According to undated documents submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 27 October 2016. A certification of this registration, submitted by the Government, is dated 29 March 2017.", "4. Mr Gianfranco Goretti and Mr Tommaso Giartosio 33. These two applicants met in October 1995, and a month later entered into a stable and committed relationship with each other. 34. In 1996 Mr Giartosio purchased a house in Rome, Italy and in spring 1998 the two applicants started to cohabit there.", "There they established their common residence. 35. In 1998 the two applicants symbolically celebrated their union before their friends and family. In 2001 Mr Giartioso allowed limited access to his bank account in favour of Mr Goretti. In 2005 the two applicants drafted wills nominating each other as each other’s heirs.", "36. On 9 September 2008 the two applicants got married in Berkeley, California. 37. In 2009 the applicants purchased property together and opened a joint bank account. 38.", "Following their request of the same day, on 29 September 2011 the Commune of Rome informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. 39. On 1 October 2011 the couple filed a declaration with the Rome “Registry of civil unions” to the effect that they were entering into a civil union and constituting a de facto couple. The declaration is acknowledged by the relevant authorities, but has only symbolic value (see relevant domestic law and practice below). 40.", "Following guidance from the Mayor of Rome directing the Civil Status Office of the commune to register such marriages (see below), on 15 October 2014 Mr Gianfranco Goretti and Mr Tommaso Giartosio re‑submitted an application to have their marriage registered. Their request was also granted and the marriage was registered. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) by a decision of the Prefect of Rome of 31 October 2014 the above-mentioned registration was cancelled. 41. On 23 November 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union.", "5. Mr Fabrizio Rampinelli and Mr Alessandro Dal Molin 42. These two applicants met in July 1993 and immediately entered into a committed and stable relationship with each other. A few weeks later Mr Dal Molin moved in with Mr Rampinelli in La Spezia, Italy. 43.", "In 1997 the couple moved to Milan, Italy. 44. In 1998 Mr Rampinelli moved to Germany for employment purposes, maintaining a long-distance relationship with Mr Dal Molin; however they met every week. 45. In 1998 Mr Dal Molin purchased a property in Milan with financial assistance from Mr Rampinelli.", "46. In 2000 Mr Rampinelli returned to Italy; the couple moved to Mediglia and continued cohabiting. 47. In 2007 Mr Rampinelli moved to the Netherlands, again for work purposes, maintaining however, a long-distance relationship with regular weekly visits to Italy. 48.", "After being in a relationship for fifteen years, on 12 July 2008 the couple got married in Amsterdam, the Netherlands. In November 2008 the couple opened a joint bank account. 49. In 2009 Mr Dal Molin left his job in Italy and moved to the Netherlands. As he was unemployed, he was totally dependent on his spouse.", "Mr Rampinelli also supported financially Mr Dal Molin’s mother, a victim of Alzheimer’s disease. They are under a system of separation of estates; however, their accounts are in joint names and their wills indicate each other as heirs. 50. On 28 October 2011 the applicants requested the General Consulate in Amsterdam to transmit to the respective Civil Status Offices in Italy the relevant documents for the purposes of registration of their marriage. 51.", "On 29 November 2011 the Commune of Mediglia informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. No reply was received from the Commune of Milan. 52. Following the guiding decision by the Mayor of Milan, mentioned above, the applicants also re-submitted an application to have their marriage registered. According to the information provided by the applicants on 30 January 2017, their marriage was never registered.", "53. However, on 4 October 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union. 6. Mr Antonio Garullo and Mr Mario Ottocento 54. The two applicants married in The Hague on 1 June 2002.", "55. On 12 March 2004, the applicants being resident in Latina, Italy, they requested the Civil Status Office to register their marriage contracted abroad. 56. On 11 August 2004 their request was rejected in accordance with the advice of the Ministry of Internal Affairs of 28 February 2004. The decision noted that the Italian legal order did not provide for the possibility of two Italian nationals of the same sex contracting marriage; this was a matter contrary to internal public order.", "57. On 19 April 2005 the applicants lodged proceedings before the competent Tribunal of Latina, requesting the registration of their marriage in the light of DPR 396/2000 (see relevant domestic law below). 58. By a decision of 10 June 2005 the Latina Tribunal rejected the applicants’ claim. It noted that the registration of the marriage was not possible, because if such a marriage had been contracted in Italy it would not have been considered valid according to the current state of the law, as it failed to fulfil the most basic requirement, that of having a female and a male.", "In any event, the marriage contracted by the applicants had no consequence in the Italian legal order in so far as a marriage between two persons of the same sex, although validly contracted abroad, ran counter to international public order. Indeed same-sex marriage was in contrast with Italy’s history, tradition and culture, and the fact that so few European Union (EU) countries had provided such legislation went to show that it was not in line with the common principles of international law. 59. An appeal by the applicants was rejected by a decision of the Rome Court of Appeal, filed in the relevant registry on 13 July 2006. The Court of Appeal noted that such registration could not take place, given that their marriage lacked one of the essential requisites to amount to the institution of marriage in the domestic order, namely the spouses being of different sexes.", "60. On 17 July 2007 the two applicants appealed to the Court of Cassation. In particular they highlighted, inter alia, that public order referred to in Article 18 of Law no. 218/95, had to be interpreted as international public order not national public order, and thus it had to be established whether same-sex marriage was against that order, in the light of international instruments. 61.", "By a judgment of 15 March 2012 (no. 4184/12) the Court of Cassation rejected the appeal and confirmed the previous judgment. Noting the Court’s case-law in Schalk and Kopf v. Austria, (no. 30141/04, ECHR 2010) it acknowledged that a marriage contracted abroad by two persons of the same sex was indeed existent and valid, however, it could not be registered in Italy in so far as it could not give rise to any legal consequence. 62.", "The Court of Cassation referred to its case-law, to the effect that civil marriages contracted abroad by Italian nationals had immediate validity in the Italian legal order as a result of the Civil Code and international private law. This would be so in so far as the marriage had been contracted in accordance with the laws of the foreign state in which it had been contracted, and that the relevant substantive requirements concerning civil status and the capacity to marry (according to Italian law) subsisted, irrespective of any non-observance of Italian regulations regarding the issuing of the banns or the subsequent registration. The former were subject solely to administrative sanctions and the latter were not conducive of any legal effects – since registration had the mere significance of giving publicity to a deed or act which was already valid on the basis of the locus regit actum principle. Thus, had the marriage been contracted by persons of the opposite sex, in the absence of any other fundamental requirements it would have been valid and conducive of legal effects in the Italian legal order. In that case the Civil Status Officer would have no option but to register the marriage.", "However, the case-law had shown that the opposite sex of the spouses was the most indispensable requirement for the “existence” of a marriage as a legally relevant act, irrespective of the fact that this was not stated anywhere explicitly in the relevant laws. Thus, the absence of such a requirement placed in question not only the validity of the marriage, but its actual existence, meaning that it would not be conducive to any legal effects (as opposed to a nullity). It followed that according to the ordinary law of the land, two same-sex spouses had no right to have their marriage contracted abroad registered. 63. The Court of Cassation considered that the said refusal could not be based on the ground that such a marriage ran counter to public order (as dictated by the relevant circulars), but that the refusal was simply a consequence of the fact that it could not be recognised as a marriage in the Italian legal order.", "64. The Court of Cassation went on to note that the social reality had changed, yet the Italian order had not granted same-sex couples the right to marry as concluded in the Court of Cassation judgment no. 358/10 (which it cited extensively). Indeed the question whether or not to allow same-sex marriage, or the registration thereof, was not a matter of EU law, it being left to regulation by Parliament. However, the Italian legal order was also made up of Article 12 of the Convention as interpreted by the European Court of Human Rights in Schalk and Kopf (cited above); in that case the Court considered that the difference of sex of spouses was irrelevant, legally, for the purposes of marriage.", "It followed that, irrespective of the fact that it was a matter to be dealt with by the national authorities, it could no longer be a prerequisite for the “existence” of marriage. Moreover, the Court of Cassation noted that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the Convention; therefore, even if they did not have the right to marry or to register a validly contracted marriage abroad, in the exercise of the right to freely live with the inviolable status of a couple, they could bring actions before the relevant courts to claim, in specific situations related to their fundamental rights, treatment which was uniform with that afforded by law to married couples. 65. In conclusion, the Court of Cassation found that the claimants had no right to register their marriage. However, this was so not because the marriage did not “exist” or was “invalid” but because of its inability to produce (as a marriage deed) any legal effect in the Italian order.", "II. DOMESTIC LAW AND PRACTICE A. Private international law 66. Law no. 218 of 31 May 1995 regarding the reform of the Italian system of private international law, in so far as relevant, reads as follows: Article 16 “i) Foreign law shall not be applied if its effects are contrary to public order.", "ii) In such cases, another law shall apply, in accordance with other connecting criteria provided in relation to the same subject matter. In the absence of any such connecting criteria, Italian law shall apply.” Article 17 “The following provisions are without prejudice to the prevalence of Italian laws which in view of their object and scope shall be applied notwithstanding reference to the foreign law.” Article 18 “Legal certificates released abroad shall not be registered in Italy if they are against public order.” Article 27 “Capacity to enter into marriage and other conditions required to enter into marriage are regulated by the national law of each spouse at the time of the marriage, this without prejudice to the unmarried status (stato libero) of any of the spouses, obtained as a result of an Italian judgment or one which has been recognised in Italy.” Article 28 “A marriage is valid, in relation to form, if it is considered as such by the law of the country where it is celebrated or by the national law of at least one of the spouses at the time of the marriage or by the law of the common state of residence at the time of the marriage.” Article 29 “i) Personal relations between spouses are regulated by the national law common to both parties. ii) Personal relations between spouses who have different nationalities or several nationalities common to both are regulated by the law of the state where their matrimonial life is mostly spent.” Article 65 “Foreign documents concerning the status of individuals and the existence of family relations are recognised under Italian law if released by public authority of the State whose law is recognised by the present law ... unless those documents violate the public order...” B. The Civil Code 67. Title VI of the First Book of the Civil Code deals with marriage, and is divided into six chapters (which are again divided into sections).", "Chapter III deals with the celebration of a civil marriage. Its Articles 115 and 130, in so far as relevant, read as follows: Article 115 “A citizen is subject to the provisions of section one [conditions to contract marriage] of this Chapter even when contracting marriage in a foreign state according to the form applicable in such foreign state ...” Article 130 “Nobody is entitled to claim the title of spouse and the legal consequences of marriage unless a certified copy of the celebration as recorded in the family registers is presented.” Article 131 “A factual reality reflecting the recognition by society of a civil status, which is in conformity with the marriage deed, sanctions any defect of form present in the marriage deed.” 68. Other pertinent provisions of the Civil Code read, in so far as relevant, as follows: Article 167 “Each or both spouses may by public deed, or a natural third person may by means of a will, create a patrimonial fund for the needs of the family, assigning selected property, real estates or other goods which are recorded in the official Italian registers, or bonds.” Article 230 bis “1. In the absence of contractual relationships, family members who work permanently for the family business are entitled to maintenance, to the financial increments of the business, and to a share in the business, according to the type and standard of work done. 3.", "The notion of family member includes: the spouse, relatives within the third degree, and in-laws within the second degree. A family business is a business in which the spouse, relatives within the third degree, and in-laws within the second degree, work.” Article 408 “... A guardian in the event of incapacity may be chosen by the interested person, by means of a public deed or an authenticated private deed.” Article 540 “The surviving spouse is entitled to half of the entire estate of the deceased, subject to the provisions of Article 542 if there are surviving children. Irrespective of whether there are any siblings or parents of the deceased, the surviving spouse is entitled to live in the family house and to use its furniture, whether it is their common possession or solely belongs to the deceased.” Article 1321 “A contract is an agreement between two or more parties with the intent to establish, regulate or extinguish a patrimonial relationship between them.” Article 1372 “Obligations arising from contracts have the force of law between the contracting parties ... They have no effects on third parties unless so provided by law.” C. Decree no. 396/2000 69.", "Registration of civil status acquired abroad is provided for by the Decree of the President of the Republic no. 396 of 3 November 2000 entitled “Regulation of the revision and simplification of the legal order of civil status pursuant to Article 2 (12) of Law no. 127 of 15 May 1997” (DPR 396/2000). Its Article 16, regarding marriages contracted abroad, reads as follows: “When both spouses are Italian nationals or one is an Italian national and the other a foreigner, a marriage abroad may be contracted before the competent diplomatic or consular authorities or before the local authorities according to the law of the place. In the latter case a copy of the marriage deed shall be deposited with the diplomatic and consular authority.” 70.", "Article 17 relates to the transmission of the deed, and according to Article 18 deeds contracted abroad may not be registered if they are contrary to public order. 71. For the purposes of guidance on the application of DPR 396/2000 the Ministry of Internal Affairs issued various circulars. Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs expressly provided that a marriage between two persons of the same sex, contracted abroad, cannot be registered in the Civil Status Registry in so far as it is contrary to the norms of public order.", "Similarly, Circular no. 55 of 18 October 2007 provided that the Italian legal order does not allow homosexual marriage, and a request for registration of such a marriage contracted abroad must be refused, it being considered contrary to the internal public order. These circulars are binding on the Officer for Civil Status, who is competent to ascertain that the requisites of law are fulfilled for the purposes of registration. 72. In the Italian legal order marriage registration does not produce any ulterior legal effects (non ha natura costitutiva); it serves the purpose of acknowledgment in the public domain (significato certificativo, efficacia dichiarativa) in so far as it gives publicity to a deed or act which is already valid on the basis of the locus regit actum principle (the rule providing that, when a legal transaction which complies with the formalities required by the law of the country where it is carried out is also valid in the country where it is to be given effect).", "D. Domestic jurisprudence 1. Marriage (and civil unions) 73. Extracts from relevant judgments read as follows: Decision of 3 April 2009 of the Venice Tribunal “The difference of sex constitutes an indispensable prerequisite, fundamental to marriage, to such an extent that the opposite hypothesis, namely that of persons of the same sex, is legally inexistent and certainly extraneous to the definition of marriage, at least in the light of the current legal framework.” Rome Court of Appeal decision of 13 July 2006 and Treviso Tribunal decision of 19 May 2010 “[Marriage between two persons of the same sex] may not be registered in the Italian Civil Status Registry because it does not fulfil one of the essential requisites necessary for marriage in the internal order, namely the difference of sex of the spouses.” Constitutional Court judgment no. 138/2010 74. The Italian Constitutional Court in its judgment no.", "138 of 15 April 2010 declared inadmissible the constitutional challenge (submitted by persons in a similar situation to those of the applicants) to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronnunzia additiva non costituzionalmente obbligata). The case had been referred to it by the ordinary courts in the ambit of a procedure challenging the refusal of the authorities to issue marriage banns for the claimants’ same-sex marriage. 75. The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships.", "Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – a juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation, aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment between married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures.", "76. It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind the changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affects the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not at all been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code.", "Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense. 77. Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create an unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage.", "Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe. 78. Similarly, the Italian Constitutional Court, in its judgments nos. 276/2010 of 7 July 2010 filed in the registry on 22 July 2010, and 4/2011 of 16 December 2010 filed in the registry on 5 January 2011, declared manifestly ill-founded claims that the above-mentioned articles of the Civil Code (in so far as they did not allow marriage between persons of the same sex) were not in conformity with Article 2 of the Constitution. The Constitutional Court reiterated that juridical recognition of homosexual unions did not require a union equal to marriage, as shown by the different approaches undertaken in different countries, and that under Article 2 of the Constitution it was for the Parliament, in the exercise of its discretion, to regulate and supply guarantees and recognition to such unions.", "79. Generally, domestic jurisprudence until 2012 seemed to indicate that the impossibility of registering a homosexual marriage contracted abroad was a result of the fact that it could not be considered a marriage. However, this line of jurisprudence was put aside in the Court of Cassation judgment no. 4184/12 (in the case of the applicants) concerning the refusal of registration of same-sex marriages contracted abroad, and a further development occurred in 2014, as follows: Court of Cassation judgment no. 4184/2012 80.", "See paragraphs 61-65 above Judgment of the Tribunal of Grosseto of 3 April 2014 81. In the mentioned judgment, delivered by a court of first instance, it was held that the refusal to register a foreign marriage was unlawful. The court thus ordered the competent public authority to proceed with its registration. While the order was being executed, the case was appealed against by the State. By a judgment of 19 September 2014 the Court of Appeal of Florence, having detected a procedural error, quashed the first-instance decision and remitted the case to the Tribunal of Grosseto.", "By a first-instance decision of 2 February 2015 the Tribunal of Grosseto again ordered the competent public authority to proceed with its registration. Proceedings leading to the Court of Cassation judgment no. 2487/2017 82. On an unspecified date a certain GLD and RLH (a same-sex couple, one of whom was an Italian national) had requested their marriage contracted in France to be registered in the Civil Status Office of the relevant commune. However, the relevant mayor had refused their request.", "The couple instituted proceedings against such a decision, but were unsuccessful before the first-instance Tribunal of Avellino. 83. By decree no. 1156, filed in the relevant registry on 8 July 2015, the Milan Court of Appeal found in favour of the claimants. Referring to the judgments of the Court of Cassation nos.", "4148 of 2012 and 8097 of 2015, the Court of Appeal considered that since the marriage had been validly contracted in France, it could not be weakened because of a move to Italy, which would be discriminatory and would entail a breach of Article 12 of the Convention, as well as a breach of the right to free movement under European Union law. The Court of Appeal noted that the matter was regulated by Article 19 of legislative decree no. 396/2000 concerning registration of marriages contracted abroad, given that Article 28 of Law no. 218/1995 provided that a marriage was valid in respect of form if it is so considered in accordance with the laws of the country where it was contracted. It reiterated the principle that the same sex of the couple does not go against (non costitusice un limite) public order, be it national or international.", "84. The judgment became final on 15 July 2016 given that the Court of Cassation in its judgment no. 2487/2017 of 31 January 2017 found that the appeals had not been lodged according to the relevant procedures. 2. Other relevant case-law Judgment of the Tribunal of Reggio Emilia of 13 February 2012 85.", "In a case before the Tribunal of Reggio Emilia [at first–instance], the claimants (a same-sex couple) had not requested the tribunal to recognise their marriage entered into in Spain, but to recognise their right to family life in Italy, on the basis that they were related. The Tribunal of Reggio Emilia, by means of an ordinance of 13 February 2012, in the light of the EU directives and their transposition into Italian law, as well as the EU Charter of Fundamental Rights, considered that such a marriage was valid for the purposes of obtaining a residence permit in Italy. Constitutional Court judgment no. 170/14 of 11 June 2014 86. Judgment no.", "170/14 of the Constitutional Court found a breach of the Constitution, as a result of the legally obligatory termination of a marriage, and the impossibility of the partners in that case (who had become same-sex partners following gender reassignment of one of the partners) to obtain an alternative recognition of their union. In that case the Constitutional Court also left to the legislature the task of urgently enacting another form of registered cohabitation, one which would protect the couple’s rights and obligations. Court of Cassation judgment no. 8097/2015 87. In the light of the findings of the Constitutional Court judgment no.", "170/14 of 11 June 2014, the Court of Cassation held that it was necessary to maintain in force the rights and obligations pertaining to the marriage (after one of the spouses had changed sex) until the legislator provided for an alternative means of recognition. Judgment of the Court of Cassation no. 2400/15 88. In a case concerning the refusal to issue marriage bans to a same‑sex couple who had so requested, the Court of Cassation, in its judgment of 9 February 2015, rejected the claimants’ request. Having considered recent domestic and international case-law, it concluded that - while same‑sex couples had to be protected under Article 2 of the Italian Constitution and that it was for the legislator to take action to ensure recognition of the union between such couples - the absence of same sex-marriage was not incompatible with the applicable domestic and international system of human rights.", "Accordingly, the lack of same sex-marriage could not amount to discriminatory treatment, as the problem in the current legal system revolved around the fact that there was no other available union apart from marriage, be it for heterosexual or homosexual couples. However, it noted that the court could not establish through jurisprudence matters which went beyond its competence. E. The recent progress of marriage registrations 89. Following decisions of some mayors (including the mayors of Bologna, Naples, Rome and Milan) to register same‑sex marriages validly contracted abroad, by a circular issued on 7 October 2014 by the Ministry of Internal Affairs, addressed to the Prefects of the Republic, the Government Commissioners of the Provinces of Bolzano and Trento, and the President of the Regional Government of Val D’Aosta, the following instruction was issued: “Where mayors have issued directives concerning the registration of same-sex marriages issued abroad, and in the event that these directives have been enforced, you are requested to formally invite such mayors to withdraw such directives and cancel any such registrations which have already taken effect. At the same time you should warn them that in the absence of any action on their part the acts illegitimately affected will be annulled ex officio in accordance with the provisions of Article 21 nonies of Law no.", "241 of 1990 and Article 54 (3) and (11) of legislative decree 267/2001.” 90. By a first-instance judgment no. 3907 of 12 February 2015 filed in the relevant registry on 9 March 2015, the Administrative Tribunal of Rome, Lazio, reiterating that there existed no right to have registered same‑sex marriages contracted abroad (and therefore confirming the legitimacy of the content of the circular of 7 October 2014), nevertheless declared the above order of 7 October 2004 null and void. Having examined the relevant legal framework, it considered that the Central Administrative Authority and Prefects were not competent to order the annulment of any such registrations, such competence being reserved solely to the judicial authorities. 91.", "This decision was overturned on appeal by the Supreme Administrative Court in its judgment of 8 October 2015, filed in the relevant registry on 26 October 2015. 92. The court noted that Article 27 and 28 of Law no. 218 of 31 May 1995 provided that the subjective conditions for the validity of a marriage are to be regulated by the national law of each spouse to be, and that a marriage is valid, in respect of its form, if it is considered to be valid according to the law of the place where it has been celebrated or the national law of at least one of the spouses. Furthermore, Article 115 of the Civil Code explicitly subjected Italian nationals to the relevant civil laws in relation to the conditions necessary to contract marriage, even if the marriage is contracted abroad.", "A combined reading of those provisions demands the identification of the mandatory substantive requirements (particularly, the status and capacity of the spouses-to-be) which would allow such a marriage to produce its ordinary legal effects in the national legal order. The difference in sex of the spouses to be was the first condition for the validity of a marriage according to the relevant articles of the civil code, and in line with the long cultural and legal tradition of the institution of marriage. It followed that same-sex marriage was devoid of one of the essential elements enabling it to produce any legal effect in the Italian legal order. In consequence, a State official whose duty it is to ensure (before registering a marriage) that all the formal and substantive requirements have been fulfilled, would be unable to register a same-sex marriage contracted abroad in so far as it does not fulfil the requirement of having a “husband and wife” as required by law (section 64 of Law no. 396/2000).", "For this reason such a marriage could not be registered, even assuming it were not against public order. Quite apart from this inability arising from the ordinary Italian legal order, relying on the relevant constitutional court judgments (nos. 138 of 2010 and no. 170 of 2014) the court found that neither could any obligation be derived from the constitution or international instruments to which Italy was a party. Nor could the recent ECtHR judgment in Oliari and Others v. Italy (nos.", "18766/11 and 36030/11, 21 July 2015) supersede the obstacles created by Article 29 of the Constitution as interpreted by the domestic courts. Indeed that judgment had solely found for the need to introduce a relevant legal framework for the protection of same-sex unions, and reiterated that the introduction of same-sex marriage was a matter to be left to the State. The same conclusions had to be reached even in connection with the rights to freedom of movement and residence as understood in the relevant EU legislation, in so far as the recognition of same sex-marriages celebrated abroad fell outside the scope of EU legislation. It followed that in the absence of a right to same-sex marriage, the latter could not be compared to heterosexual marriage. Indeed, admitting the registration of same-sex marriages obtained abroad, irrespective of the absence of legislation to that effect, would mean superseding the choice of the national parliament.", "In relation to the nullity of the order of 7 October 2014, it noted that the mayor was subordinate to the Minister and, in line with the relevant norms, in circumstances such as the present one the Prefect had the power ex officio to quash any illegitimate measures taken by the mayor. Indeed the power of the ordinary judge to delete such registrations risked creating uncertainty on such a delicate matter, because of the independence of such a body and the possibility of conflicting decisions. It followed that the appeal was upheld and the first-instance decision quashed. 93. In more or less the same time, similar proceedings were on-going in connection with the Mayor of Milan’s decision of 9 October 2014 to register a same-sex marriage obtained abroad and the circular of 7 October 2014 (inviting the mayors to cancel such registrations), and the subsequent cancellation, ex officio, of such registrations by means of a decree of 4 November 2014 as well as further annotations made on 11 February 2015 resulting from the latter decree.", "94. By a first-instance judgment no. 20137 of 2015, the Administrative Tribunal of Lombardia, found in favour of the mayor and annulled the subsequent impugned acts (but not the circular of 7 October 2014). It considered that in his supervisory powers a Prefect can issue orders or directives in the ambit of the functioning of the Civil Status Office. However, the Prefect cannot issue an act of annulment in the context of registrations of same-sex marriages obtained abroad, given that the applicable laws give the power to rectify or annul erroneously-registered marriages only to the ordinary judicial authorities.", "95. By means of a judgment no. 05048/16 of the Supreme Administrative Court, published on 1 December 2016, the first-instance decision to annul the impugned acts was confirmed on the basis of a different reasoning. Having analysed all the relevant laws and jurisprudence, the Supreme Administrative Court found that no law had attributed to the Minister for Internal affairs (or the Prefect) the power of annulling acts performed by mayors in order to register marriages. Indeed such power was attributed to the Government in its collegial composition.", "Further, it was not for the court to determine during such proceedings whether the decisions of the mayors to register such marriages were legitimate or not. 96. A set of similar proceedings concerning the registrations made by the Mayor of Udine was also on-going at the same time, and was decided in favour of the mayor in a first-instance judgment no. 228 of 2015 of the Administrative Tribunal of Friuli Venezia Giulia, which annulled the impugned acts. The judgment was confirmed on appeal by means of a judgment no.", "05047/16 of the Supreme Administrative Court published on 1 December 2016 on the basis of the reasoning referred to in the previous paragraph. F. Civil unions 97. By Law no. 76 of 20 May 2016, hereinafter “Law no. 76/2016”, entitled “Regulation of civil unions between people of the same sex and the rules relating to cohabitation”, the Italian legislator provided for civil unions in Italy.", "The latter legislation came into force on 5 June 2016. 98. The same legislation, in particular its Article 28 (a) and (b), provided that within six months from its entry into force, the Italian Government was delegated to adopt legislative decrees providing for the modification of relevant laws concerning private international law, in order to provide for the applicability of same-sex civil unions as provided in Italian law, to persons who have contracted marriage, civil union or any other corresponding union abroad. 99. By decree no.", "144 of the President of the Council of Ministers of 23 July 2016, which came into force on 29 July 2016, transitory provisions were adopted pending the relevant legislative decrees mentioned above (under Article 28). In particular, it was provided that marriages or civil unions contracted abroad are to be registered through the consular offices. 100. On 19 January 2017 three legislative decrees (nos. 5, 6 and 7 of 19 January 2017) were adopted in line with the above requirements and on 27 February 2017 the relative decrees allowing for the entry into force of such measures as well as legislative changes to other relevant laws were adopted by the Ministry for the Interior.", "101. Until then Italian domestic law did not provide for any alternative union to marriage, either for homosexual couples or for heterosexual ones. The former had thus no means of recognition (see also Oliari and Others, cited above, § 43, concerning a report of 2013 prepared by Professor F. Gallo (then President of the Constitutional Court)). 102. Nevertheless, some cities had established registers of “civil unions” between unmarried persons of the same sex or of different sexes: among others are the cities of Empoli, Pisa, Milan, Florence and Naples.", "However, the registration of “civil unions” of unmarried couples in such registers has a merely symbolic value. G. Cohabitation agreements prior to Law no. 76/2016 103. Before the adoption of Law no. 76/2016, cohabitation agreements were not specifically provided for in Italian law.", "104. Protection of cohabiting couples more uxorio had been derived from Article 2 of the Italian Constitution, as interpreted in various court judgments over the years (post 1988). In more recent years (2012 onwards) domestic judgments had also considered cohabiting same-sex couples as deserving such protection. 105. In order to fill the lacuna in the written law, with effect from 2 December 2013 it had been possible to enter into “cohabitation agreements”, namely a private deed, which did not have a specified form provided by law, and which may be entered into by cohabiting persons, be they in a parental relationship, partners, friends, simple flatmates or carers, but not by married couples.", "Such contracts mainly regulated the financial aspects of living together, cessation of the cohabitation, and assistance in the event of illness or incapacity[1]. III. INTERNATIONAL LAW AND PRACTICE 106. The relevant Council of Europe materials can be found in Oliari and Others (cited above, §§ 56-61). IV.", "EUROPEAN UNION LAW 107. The relevant European Union law can be found in Oliari and Others (cited above, §§ 62-64). 108. Of particular interest is Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Its Article 2 contains the following definition: “ ‘Family member’ means: (a) the spouse (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage in accordance with the conditions laid down in the relevant legislation of the host Member State.", "(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b) (d) the dependent direct relative in the ascending line and those of the spouse or partner as defined in point (b);” 109. According to the European Commission «Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States» COM(2009) 313 final (pg. 4): “Marriages validly contracted anywhere in the world must be in principle recognized for the purpose of the application of the Directive. Forced marriages, in which one or both parties is married without his or her consent or against his or her will, are not protected by international or Community law. ...", "Member States are not obliged to recognise polygamous marriages, contracted lawfully in a third country, which may be in conflict with their own legal order. ... The Directive must be applied in accordance with the non-discrimination principle enshrined in particular in Article 21 of the EU Charter.” V. COMPARATIVE LAW A. Council of Europe member States 110. The comparative law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe (CoE) member States shows that fifteen countries (Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom) recognise same-sex marriage.", "111. Nineteen member States (Andorra, Austria, Belgium, Cyprus, Croatia, the Czech Republic, Estonia, France, Greece, Hungary, Italy (as from 2016), Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples (by itself or besides marriage). In certain cases such a union may confer the full set of rights and duties applicable to the institute of marriage, and thus be equal to marriage in everything but name, as for example in Malta. Portugal does not have an official form of civil union. Nevertheless, the law recognises de facto civil unions[2], which have automatic effect and do not require the couple to take any formal steps for recognition.", "Denmark, Finland, Germany, Norway, Sweden, Ireland and Iceland used to provide for registered partnership in the case of same-sex unions, this was however abolished in favour of same-sex marriage. 112. It follows that to date (2017) twenty-seven countries out of the forty‑seven CoE member states have already enacted legislation permitting same‑sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership. 113. According to information available to the Court (dated July 2015), concerning the practice of twenty-seven member States which did not at the time provide for same sex-marriage (Andorra, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, Germany, Greece, Ireland, Lithuania, the former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Poland, Romania, Russia, Serbia, Slovenia, Switzerland, Turkey and Ukraine), concerning the registration of same-sex marriages contracted abroad, the following situation emerges: all of these member States, with the exception of Andorra, Malta, as well as Estonia (following a court ruling of 2016), refuse to allow same-sex couples to register domestically a same‑sex marriage validly contracted abroad.", "The reasons for refusal vary; some member States base their position on the legal definition of marriage as a union between a man and a woman only, and some States go further and rely on grounds of public order, tradition and procreation. 114. The twenty-five member States which did not at the time allow same‑sex marriage registration can be divided into two groups: those that allowed for married same-sex couples to register their relationship as a same‑sex partnership (nine member States - Austria, Croatia, Czech Republic, Estonia (until 2016), Finland, Germany, Ireland, Slovenia and Switzerland) and those that did not (the remaining sixteen member States). Of the EU member States surveyed none reported a distinction in their legislation between marriages obtained within the EU or elsewhere. B.", "The United States 115. On 26 June 2015, in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health et al, the Supreme Court of the United States held that same-sex couples may exercise the fundamental right to marry in all States, and that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State on the ground of its same-sex character (see for details, Oliari and Others, cited above, § 65). THE LAW I. PRELIMINARY ISSUES A.", "Victim Status 116. As to the issue of some of the applicants having had their marriage registered (as a marriage), the applicants whose marriage was so registered considered that they remained victims of the alleged violations. In their original observations (prior to recent developments) the applicants noted firstly, that registration did not amount to a union giving recognition to their couple. Secondly, as to the complaint linked specifically to registration, they noted that in the light of the circular issued on 7 October 2014 such registration was bound to be withdrawn or annulled. In consequence their situation had not been remedied, nor had the violation been recognised.", "117. The Court notes that the Government have not raised any objection in this respect. However, as recently reiterated in Buzadji v. the Republic of Moldova [GC], (no. 23755/07, §§ 68-70, 5 July 2016), victim status concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion. In the circumstances of the present case, the Court considers it appropriate to examine whether the applicants whose marriage was registered have lost their victim status.", "118. The Court refers to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (paragraph 89 above) according to which mayors were requested to cancel any registrations which had already been made, and informed that in the absence of such cancellations the registrations would be annulled ex officio. The applicants whose marriage was registered have confirmed that shortly after the circular was issued the registration in their respect was cancelled (see paragraphs 30 and 40 above). In these circumstances, the Court considers that the temporary registration of their marriage cannot therefore detract from their victim status. 119.", "Accordingly, the Court concludes that all the individuals in the present applications should be considered “victims” of the alleged violation concerning the authorities’ refusal to register their marriage (as a marriage) within the meaning of Article 34 of the Convention. B. Exhaustion of domestic remedies 120. The Government submitted that applications nos. 26431/12, 26742/12, and 44057/12 were inadmissible, as the applicants had failed to exhaust domestic remedies. In their view it could not be said that available remedies were not adequate.", "Domestic jurisprudence showed that the authorities gave particular attention to the issues raised and proposed novel solutions. They referred in particular to Constitutional Court judgment no. 138/10. 121. In relation to their complaint concerning the failed registration, the applicants submitted that it was for the Government to prove that there existed an effective domestic remedy at the time they lodged their applications with the Court; however, they had failed or were unable to do so.", "They further noted that rightly the Government did not rely on the judgment of the Tribunal of Grosseto of 3 April 2014, which was only a sporadic first-instance judgment, delivered after the introduction of the applications with the Court (they referred in this connection to Costa and Pavan v. Italy, no. 54270/10, § 38, 28 August 2012, and Sürmeli v. Germany [GC], no. 75529/01, § 110-112, ECHR 2006‑VII). 122. Furthermore, in relation to their complaint regarding any means of legal recognition, the applicants submitted that the Government had also not proved, by means of examples, that the domestic courts could provide any legal recognition of their unions.", "Indeed, given that the flaw related to the law (or lack thereof) ordinary domestic courts were prevented from taking any remedial action. Within the domestic system the appropriate remedy would have been a challenge before the Constitutional Court, which the Court has already stated is not a remedy to be used, it not being directly accessible to the individual (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). Moreover, in the present case such a challenge would not have been successful, given the precedent which lay in judgment no.", "138/10, subsequently confirmed by other decisions. 123. The Court observes that at the time when all the applicants introduced their applications before the Court (April-September 2012) the case-law concerning the impossibility of registering such marriages was consolidated. The slightly different reasoning adopted in a judgment of 15 March 2012 (no. 4184/12) of the Court of Cassation in two of the applicants’ cases did not alter the unfavourable outcome.", "Moreover, by that time the Constitutional Court had already given its judgment no. 138/10, the findings of which were subsequently reiterated in two further Constitutional Court judgments (filed in the relevant registry on 22 July 2010 and 5 January 2011, see paragraph 78 above), also delivered before the applicants had introduced their applications with the Court. Thus, at the time when the applicants wished to complain about the alleged violations, namely shortly after the refusals by the Civil Status Offices to register their marriages, there was consolidated jurisprudence of the highest courts of the land indicating that their claims had no prospect of success. The Court further notes that the judgment of the Tribunal of Grosseto was delivered after the applicants had lodged their applications with the Court, and that it is only a first‑instance judgment, it follows that it has no relevance for the Court’s finding under this head. 124.", "Bearing in mind the above, the Court considers that there is no evidence enabling it to hold that at the date when the applications were lodged with the Court the remedies available in the Italian domestic system would have had any prospects of success concerning any of their complaints. It follows that the applicants in applications nos. 26431/12, 26742/12, and 44057/12 cannot be blamed for not pursuing a remedy which was ineffective. Thus, the Court accepts that there were special circumstances which absolved these applicants from their normal obligation to exhaust domestic remedies (see Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 178, 5 December 2013).", "125. It follows that in these circumstances the Government’s objection must be dismissed. C. Other 1. The Government 126. On the specific circumstances of the case, the Government submitted that Ms Francesca Orlandi and Ms Elisabetta Mortagna, as well as Mr D.P.", "and Mr G.P., got married in Toronto, Canada, without being domiciled there, as they were domiciled in Italy. They referred to the recently amended (2013) Canadian law on the matter. 127. In respect of Mr Gianfranco Goretti and Mr Tommaso Giartosio, who got married in California, the Government noted that the law on homosexual marriage was abrogated by a referendum in 2008. The Government submitted that although this did not invalidate their marriage, the applicants failed to submit relevant documents proving the validity of their marriage entered into on 9 September 2008, at a time when the law on homosexual marriage was being assessed by the domestic courts.", "128. As to Mr Antonio Garullo and Mr Mario Ottocento, the Government submitted that the two applicants, who married in the Netherlands, had not presented their marriage certificates, nor had they submitted the relevant marriage law, which provided for same sex-marriage since 2001. They noted that the said law provided for exceptions including in relation to the recognition of marriages abroad, and that it also explicitly stated that in order to contract marriage one of the partners must have Dutch nationality or residence in the Netherlands, and if the other partner is a non‑national or a non-permanent resident, he or she must provide documentation in relation to his juridical position in connection with his residence permit for the purpose of marriage. 129. In conclusion the Government submitted that the marriages contracted abroad by the applicants had not fulfilled the requirements of the places where the marriages took place.", "Indeed the applicants had not proved to this Court that they had fulfilled the said requirements, and neither had they made available the relevant documents proving their juridical statuses. All this would have in fact been necessary for the registration of such marriages in a foreign country. Following recent developments (during these proceedings), the Government nonetheless submitted that those marriages which were registered by the Offices of Civil Status, in application of Italian law on the subject matter, were so registered even though they had not been in conformity with the applicable foreign laws. They thus asked the Court to assess the legitimacy and validity of the marriage acts at issue for the purposes of the admissibility of the relevant applications. 2.", "The applicants (a) Applications nos. 26431/12; 26742/12; 44057/12 130. The applicants submitted that both before the domestic courts and before the Court they had produced certified copies of their marriage certificates released by the competent authorities of the place of the celebration of their marriages. It followed that they had submitted sufficient proof as to the validity of their marriages. Furthermore, the refusal of the Italian authorities had solely been based on the fact that they were same‑sex couples, and not because of any doubt as to the validity of the marriages contracted.", "(b) Application no. 60088/12 131. The applicants submitted that the three Italian courts that had examined their request had not questioned the existence of the requirements necessary for the celebration of their marriage in the Netherlands. The Court of Cassation itself in its judgment (no. 4184/12) had stated that the registration was impossible because of the rules of public order and not because the marriage was null and void.", "Furthermore, the Government had not during those proceedings objected to the validity of their marriage, and by virtue of Article 115 (1) of the Italian Code of Civil Procedure (if the defendant does not contest the facts alleged by the claimant, those facts are considered proved) it had been established that their marriage was valid. As stated by the Government in a different context, the Court was not a fourth‑instance court, and thus it was not for it to assess the validity of such marriages, because such validity depended on the law of the State where it was celebrated, while the present case concerned discriminatory treatment at the hands of the Italian authorities. 3. The Court’s assessment 132. The Court notes, firstly, that it is not for it to assess the validity, according to the laws of the contracting State, of the marriages contracted by the applicants - a matter which has not been determined by the domestic authorities whose responsibility it is to make such assessments (see paragraph 92 above).", "133. It further notes that whether the applicants’ marriages were valid or not, according to the laws of the contracting State, is beyond the scope of the applicants’ complaints, as the refusals of which they complained were not based on that ground (see, mutatis mutandis, Pajić v. Croatia, no. 68453/13, § 75, 23 February 2016) - the veracity of which remains, thus, hypothetical. 134. Indeed, the basis of the applicants’ complaints is that the authorities refused to register their marriages contracted abroad on the ground that they had been marriages between persons of the same sex.", "The Court observes that from the documents submitted to it there is no doubt that the applicants have contracted marriages (in different countries) and that the refusal of the registration of such marriages was based on the fact that the applicants were same-sex couples and on nothing else. 135. The Court notes that its assessment is confined to the specific case before it, and therefore, in the present case, to the determination of whether the authorities’ refusal to register the applicants’ marriage solely on the ground that they were same-sex spouses constituted a breach of the invoked provisions. The Court’s assessment is, thus, without prejudice to any other reasons for refusal which could have been detected by the domestic authorities or which may still be raised by the domestic authorities in future (if the applicants had to make other attempts to register their marriage). 136.", "In consequence, the objection raised by the Government has no relevance to the admissibility of the complaints, and is therefore dismissed. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 14 IN CONJUNCTION WITH ARTICLES 8 AND 12 OF THE CONVENTION 137. The applicants complained about the refusal to register their marriages, contracted abroad, and the fact that they could not marry or have any other legal recognition of their family union in Italy. They considered that the situation was discriminatory and based solely on their sexual orientation.", "They cited Article 8, 12 and 14. The provisions they cited read 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 12 “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 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.” 138.", "The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see, for example, Gatt v. Malta, no. 28221/08, § 19, ECHR 2010). In the present case the Court considers that the complaints raised by the applicants are to be examined solely under Article 8 alone and under Article 14 of the Convention read in conjunction with Articles 8 and 12. A. Admissibility 1. Applicability of the provisions 139.", "The applicants submitted that the relationship of a same-sex couple living in a stable de facto relationship fell within the notion of family life, even more so if this was coupled with an act of marriage produced by foreign authorities. Thus, there was no doubt that Article 14 applied in conjunction with Article 8 in the present case. 140. As to the application of Article 14, in conjunction with Article 12, the applicants submitted that in Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) the Court held that it “would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex.", "Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint”. The applicants noted that in that case the applicants were a same-sex couple living in a stable relationship and wishing to get married. In their view, since the Court found that Article 12 applied in that case, it followed that Article 14 in conjunction with Article 12 also applied in the present case. 141. The Government did not contest expressly the applicability of the provisions.", "142. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded 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, for instance, E.B. v. France [GC], no.", "43546/02, § 47, 22 January 2008; Karner v. Austria, no. 40016/98, § 32, ECHR 2003‑IX; and Petrovic v. Austria, 27 March 1998, § 22, Reports of Judgments and Decisions 1998‑II). 143. The Court notes that it is undisputed that the relationship of a same-sex couple like the applicants falls within the notion of “private life” within the meaning of Article 8. Similarly, the Court has already held that the relationship of a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of “family life” (see Schalk and Kopf, cited above, § 94).", "It follows that the facts of the present applications fall within the notion of “private life” as well as “family life” within the meaning of Article 8. 144. The Court also reiterates that there is no reason why a State’s acknowledgment of the real marital status of a person, be it, inter alia, married, single, divorced, widow or widower, should not form part of his or her personal and social identity, and indeed psychological integrity protected by Article 8. Therefore, registration of a marriage, being a recognition of an individual’s legal civil status, which undoubtedly concerns both private and family life, comes within the scope of Article 8 § 1 (see Dadouch v. Malta, no. 38816/07, § 48, 20 July 2010).", "145. As to Article 12, the Court notes that in Schalk and Kopf it found that it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex, and therefore that Article 12 was applicable to the applicants, a same‑sex couple seeking to marry, but that Article 12 of the Convention did not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage (§§ 61-63). The same was reiterated in Hämäläinen v. Finland [GC], (no. 37359/09, § 96, ECHR 2014), and in Oliari and Others v. Italy (nos. 18766/11 and 36030/11, §§ 191-192, 21 July 2015), where the Court held that while it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.", "More recently, the Court, in Chapin and Charpentier v. France, (no. 40183/07, 9 June 2016) also considered that Article 12 applied to the applicants, a same-sex couple seeking to marry (§ 31). Since the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State. 146. Consequently, the provisions to be examined by the Court, namely both Article 8 and Article 14 taken in conjunction with Articles 8 and 12 of the Convention, apply in the present case.", "2. Conclusion 147. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicants in applications nos. 26431/12, 26742/12 and 44057/12 148. The applicants submitted that the violations arose as a result of an administrative practice and a vacuum in the legal system which existed at the time, which amounted to a structural deficiency.", "(i) Lack of marriage registration 149. The applicants submitted that as a same-sex couple married abroad they were undoubtedly in the same position as different-sex couples married abroad as regards their request for registration of their marriage. Yet they had suffered different, disadvantageous treatment, as they had been refused registration of their marriage. This refusal also amounted to an interference with their rights to family life and to marry, since the decisions of public authorities jeopardised a relationship of marriage that two adult and consenting persons had created to regulate their private and family life (they referred, mutatis mutandis, to Negrepontis-Giannisis v. Greece (no. 56759/08, § 57, 3 May 2011).", "150. The applicants did not dispute that registration of the marriage did not imply recognition of the legal effects of the marriage deed. Nevertheless, through the registration of their foreign marriage they sought to obtain, vis-à-vis the public authorities and society at large, the publicity of their situation, namely that they had a common project of life, that they regarded themselves as a family, and that they reciprocally committed to this aim with the ensuing responsibilities. 151. The applicants submitted that as adduced by the competent authorities the only reason for the refusal was the same-sex nature of their marriage.", "Thus, the aim allegedly pursued by the refusal of registration was the protection of the “internal” public order (as per Circular no. 2 of 26 March 2001, mentioned above). This aim was rather general, as it allegedly included fundamental, ethical, economic, political and social principles of the legal order. However, the Government had failed to explain which specific fundamental principles had to be defended against the registration of same-sex marriages. Thus, it could only be deduced that the difference in treatment was aimed solely at protecting a concept of marriage as a heterosexual legal institution and an abstract idea of traditional family.", "Nevertheless, the applicants noted that the Court of Cassation (judgment no. 4184/12) acknowledged that a foreign same-sex marriage may no longer be considered non-existent. It had found that the refusal of its registration was simply a consequence of the fact that it could not be recognised as a marriage in the Italian legal order (marriage being defined as a union between a man and a woman), irrespective of any considerations relating to the protection of public order. The applicants noted that in such a context the Civil Status Offices and the domestic courts were prevented from carrying out a proportionality assessment, namely whether giving publicity to a same-sex union would jeopardise internal public order. The situation was such that the lack of recognition of same-sex unions, despite a constitutional obligation on the legislature to fill this gap, also prevented domestic authorities from registering the marriage deed at least as a civil union, while reserving the institution of marriage to opposite-sex couples.", "It followed that the refusal was not genuinely aimed at protecting fundamental principles of legal order, which in fact do not oppose, but actually require, the recognition of same-sex unions. 152. The applicants submitted that even assuming that there existed an aim which was legitimate, given that no proportionality assessment was carried out by the authorities and that no such assessment was guaranteed by the legislature - which failed to give effect to the Constitutional Court’s pronouncement - it could not be said that the refusal was necessary to achieve the aim at issue. No other reasons had been advanced to justify its necessity. (ii) Lack of civil unions 153.", "The applicants made submissions on the lines of those made in the case of Oliari and Others (cited above, §§ 105-121). 154. The applicants further submitted that the unreasonable and unjustified treatment suffered by them affected not only their family life under Article 8 but also their rights under Article 12. They considered that in the absence of an alternative to marriage to obtain recognition of their union, the requirements of strict proportionality for the justification of the measure were not satisfied (they referred, mutatis mutandis, to Parry v. the United Kingdom (dec.), no. 42971/05, ECHR 2006‑XV), and there was consequently a violation of Article 14 in conjunction with Article 12.", "In this connection they relied on the dissenting opinions in the judgment of Schalk and Kopf. 155. In conclusion the applicants reiterated that same-sex unions could not be considered as being against the internal public order, their legal recognition being required by Article 2 of the Italian Constitution as repeatedly held by the Italian Constitutional Court. Thus, the notion of marriage as a heterosexual institution could still be safeguarded if the applicants’ marriages were at least recognised (re-characterised) as same‑sex unions for the purposes of registration. Given that compliance with domestic legislation was no justification for non-compliance with treaty obligations, the obligatory refusal of at least a civil union in the present case had failed to strike a fair balance between the applicants’ right to respect for family life and the demand of society at large.", "At the same time the State was also violating the applicants’ rights in so far as it had failed to comply with its positive obligation to give appropriate legal recognition to their unions, as also demanded repeatedly by the Italian Constitutional Court. It followed that their effective exercise of a fundamental right existing under domestic law was hindered by the failure of the legislature to act. (b) The applicants in application no. 60088/12 (i) Lack of marriage registration 156. The applicants stressed that the fact that it was impossible for them to register their marriage obtained abroad amounted to discriminatory treatment.", "They considered that a) the marriage registered abroad was valid and produced all legal effects and consequences which are proper of a legal marriage recognised and regulated by the law of the State in which the marriage was registered or celebrated; b) it was a marriage that in all its characteristics and aspects is identical to marriage as legally recognised by Italian law; c) in addition, contrary to the submission by the Italian Court of Cassation and as explained below, the marriage registered abroad would produce full legal consequences within the Italian legal system. This did not, however, mean, inter alia, that the State had the duty to allow same-sex marriage in Italy, or to extend to same-sex couples the full legal protection given to heterosexual married couples. 157. The Government had ignored that they were European citizens, and that Article 9 of the European Charter did not distinguish between married same-sex or different-sex couples (for example, in application of Article 9 and Directive 2004/38/EC recognising the right of EU citizens to move and reside freely within the territory of member states, the decision of 13 February 2012 of the Tribunal of Reggio Emilia, paragraph 85 above) and that each European citizen who was married was entitled to free movement within the EU, regardless of who he or she was married to and where they married. It followed that the European norms concerning married couples also applied in Italy and must apply to the applicants, who were legally married in another EU state.", "Thus, contrary to that held by the Court of Cassation in judgment no. 4184/12, same-sex marriage celebrated abroad produced legal effects in the Italian system every time the marital status represented a pre-requisite for the application in Italy of EU norms (as explained in the Reggio Emilia Tribunal’s judgment). In connection with the last-mentioned judgment the applicants considered that since an Italian citizen’s marriage to a non-EU same-sex partner was registered, the failure to register their marriage discriminated against them on the basis of their nationality (as they were both Italian). 158. In the light of the recent interpretation of Article 12 of the Convention and the explicit wording of Article 9 of the EU Charter marriage was no longer considered as the union of a man and a woman.", "Thus, all EU norms concerning marriage referred to both heterosexual and homosexual married couples. This interpretation had to be equally valid in Italy, it being bound by these European instruments. It followed, that since the applicants were legally married, it was those laws which should apply to them and not laws concerning unprotected persons or cohabitants. In this connection, registration represented an indirect recognition of the conjugal status of same-sex couples, which allowed them entitlement to those rights recognised under EU law (such as free movement) by virtue of their being EU citizens, in addition to all situations in which EU norms would have applied in Italy. The applicants noted that registration of their marital status had value for several legal purposes, including the payment of taxes, protection from foreign creditors, and avoiding bigamy.", "It followed that in a globalised era such registration was important for ensuring clarity in international relations between citizens in different countries. 159. The applicants submitted that it could no longer be said that same‑sex marriage was against public order (as confirmed by the Court of Cassation judgment no. 4184/12). Indeed it was not the Italian public order that was at issue in the present case but the international public order, as the norms to be interpreted were norms of international private law.", "As the Court of Cassation had pointed out (decision of 26 April 2013, no. 10070, which quoted another two decisions of the Court of Cassation of 6 December 2002, no. 17349 and of 23 February 2006, no. 4040), it is the “international public order” which is included in the principles of international private law. Therefore the applicants argued that the international public order did not merely mirror Italian fundamental legal principles as provided by the Constitution or by other Italian legal statutes.", "Instead, it encapsulated the Italian fundamental principles that in turn derive from a plurality of sources of law and in particular from the interaction of the Italian system with the Charter and the Convention. 160. The applicants noted that, if, as the Court of Cassation had pointed out (judgment no. 4184/12), the notion of marriage under Italian law included same-sex marriage (in line with the Charter and the Convention), then it was contradictory to argue that a same-sex marriage celebrated abroad was against the international public order. Despite this judgment and the decision in Schalk and Kopf, the Italian authorities continued to apply the regulations issued by the Ministry of the Interior.", "Furthermore, the guidelines used by the registrars of civil status simply referred to public order, without clarifying whether it was national or international; those guidelines also indicated that judgment no. 4184/12 was irrelevant in relation to registrations. The applicants disputed that Article 16 of Law no. 218/95 was applicable to the circumstances of the case, as that provision governed the application in Italy of foreign law, but the applicants were not asking the authorities to apply Dutch law (to give them the right and protection they would have obtained under Dutch law), but simply to register their marriage celebrated abroad and thus to obtain the limited effects of registration under Italian law, namely certification that the marriage was valid, which could be used every time conjugal status needed to be proved for the application of a specific law. 161.", "The applicants referred to other relevant domestic case-law (see paragraphs 86 and 88 above), in particular Constitutional Court judgment no. 170/14, which considered that the notion of marriage as defined in Schalk and Kopf was irrelevant for the purposes of Italian law and the definition of marriage. (ii) Lack of civil unions 162. The applicants noted that to avoid a finding of a violation the Government argued that same-sex couples were in fact protected (by means of cohabitation agreements). The reality was that the public authorities were reluctant to advance the rights of same-sex couples, and the few rights which had been gained over the past decade were the result of litigation and court proceedings.", "Thus, such protection deriving from case-law and not legal statute constituted only an indirect protection. It was also left to the judge to decide when such protection was required after the same‑sex couple had proved that i) they were cohabiting in a stable relationship, ii) that the right they were seeking to enjoy was a right enjoyed by heterosexuals, and that a different degree of protection was unreasonable. Such discretion created uncertainty and would often need direction by the Constitutional Court. Moreover, it burdened persons in the applicants’ situation with having to go to court and prove cohabitation in order to obtain the relevant protections. In that connection the applicants noted the relevance of having their marriage registered (and thus having the validity of their marriage controlled and certified by the authorities) to enable them to fulfil the burden of proof concerning the stability of their relationship.", "They also noted that this approach to protection did not distinguish between cohabiting same-sex couples and married same-sex couples, despite the latter being granted recognition and protection in all jurisdictions in which same-sex marriage was regulated. 163. As to the “register of civil unions”, and contracts of cohabitation the applicants made submissions in line with those made in Oliari and Others (cited above). (c) The Government’s submissions 164. The Government referred to the domestic jurisprudence on the matter which they considered relevant for their defence of the present case.", "They noted that the domestic courts had acknowledged the existence of same-sex couples and their right to protection in specific circumstances and to equal treatment, which could be guaranteed by the courts acting in line with their common sense (judgments no. 559/1989 and 404/1998 in relation to leases and state housing in respect of cohabitations more uxorio). This notion of family was further confirmed by the Court of Cassation in its judgment no. 4184/12, which prompted various communes and regions to create a register of civil unions, or a register of de facto unions, which served to register the existence of such couples, an action in fact taken by Mr Gianfranco Goretti and Mr Tommaso Giartosio. However, the existence of such measures of registration in various regions and communes did not oblige the State to recognise such unions as a marriage, but solely to consider their existence as a family within a regulatory framework in line with the internal order of the State – the only requirement of the Convention (as interpreted in jurisprudence) on the subject matter.", "165. The Government submitted that same-sex couples wishing to give a legal framework to various aspects of their community life could enter into cohabitation agreements. Such agreements enabled same-sex couples to regulate aspects related to, for example: the manner of dealing with joint expenses and the opening of joint bank accounts; the criteria for the allocation of ownership of assets acquired during the cohabitation; the procedure for the distribution of assets in the event of termination of cohabitation; as well as acts of testamentary disposition in favour of the cohabiting partner (as for example the right to continue a lease following the decease of a partner, as established by judgment no. 404/1998). Furthermore, under Article 408 of the Civil Code it was possible to nominate a person living under the same roof as guardian in the event of incapacitation, as had in fact been done by Mr D.P.", "and Mr G.P. In the Government’s view cohabitation agreements were the appropriate juridical instrument to give their union the status of family before the law, without any discrimination based on their sexual orientation. 166. As to marriage registration, the Government submitted that since the applicants’ marriages were invalid according to the laws of the countries within which they were contracted they could not be registered, in the light of both international and domestic public order. In their view, the Court of Cassation judgment no.", "4184/12 rejected claims (lodged by only two of the applicants) on the basis of Article 18 of Law no. 396/00 on the ground that such registration would have been contrary to domestic public order. That judgment had further held that such a marriage could not have produced any legal effect in Italy. Nevertheless, according to that judgment same-sex marriages contracted aboard remained valid in respect of form, for the purposes of the law of the country within which they were contracted or of the national law of at least one of the spouses, but not for Italian law, which did not allow same-sex marriage. The Government submitted that marriage fell within the sphere of domestic public order, which included situations which, although not totally internal, were significantly linked to the Italian legal order.", "They noted that in the light of the conflict of laws and in the absence of any criteria of liaison between foreign and Italian law under Article 16 of Law no. 218/1995, the domestic courts applied national law. It followed that the interference had been in accordance with the law. 167. The Government submitted that the refusal in respect of Mr Garullo and Mr Ottocento was based on internal public order, which was composed of ethical, economic, political and social principles enabling the cohabitation of Italian society and other contracting states which had not provided for same-sex marriage.", "168. The Government further submitted that some individuals had also been successful in registering their marriages. Indeed, the first-instance Tribunal of Grosseto, by a decision of 2 April 2014, ordered the Civil Status Office to register a same-sex marriage contracted in New York in 2012 (see paragraph 81 above). 169. The Government submitted that there were no discriminatory intentions behind the state of the law in force which did not allow them to register their marriage; it would have been otherwise had the Italian legislator provided for a law specifically prohibiting same-sex marriage, as still existed in certain states.", "170. They observed that the Charter of Fundamental Rights of the European Union left it to States to decide on the matter. Similarly, in Schalk and Kopf the Court, in the absence of a European consensus, also left it to States to choose the extent of the rights to be afforded to same-sex couples. They further noted that in Gas and Dubois v. France (no. 25951/07, § 66, ECHR 2012) the Court held that a right to same-sex marriage cannot be derived from Article 14 taken in conjunction with Article 8, and that where a State chooses to provide same-sex couples with an alternative means of recognition it enjoys a certain margin of appreciation as regards the exact status conferred.", "As acknowledged by the Court and the Italian courts the national legislator was better placed than the Court to develop the institution of family and the relations between adults and children, as well as the notion of marriage. They noted that the delicate and complex questions of marriage as well as the civil rights of same-sex couples were subject to democratic debate in various countries, including Italy, in the light of the developing case-law of the Court as well as the non-binding acts of the Council of Europe. In this respect they noted that Italy developed an “LGBT national strategy 2013-15”, which it had submitted to the Council of Europe. 171. In conclusion they highlighted that the Convention did not provide homosexual couples with the right to marry, and such a reading of Article 12 would require a consensus among States which could be provided in an additional protocol.", "(d) The third-party interveners (i) Prof Robert Wintemute on behalf of the non-governmental organisations FIDH (Fédération Internationale des ligues de Droit de l’Homme), AIRE Centre (Advice on Individual Rights in Europe), ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), ECSOL (European Commission on Sexual Orientation Law), UFTDU (Unione forense per la tutela dei diritti umani) and LIDU (Lega Italiana dei Diritti dell’Uomo). (α) Positive obligation to provide some means of recognition 172. The intervention in connection with the provision of some means of recognition is summarised in Oliari and Others (cited above, §§ 134-139). (β) Discrimination 173. The intervention in connection with the alleged discrimination is summarised in Oliari and Others (cited above, §§ 140-144).", "174. Those intervening further noted that Articles 14 and 8 can also be interpreted in the present case as requiring that the foreign marriages of same-sex couples be recognised as equivalent to the civil union or other alternative to legal marriage that must be provided to same-sex couples. A model can be found in s. 215 of the United Kingdom’s Civil Partnership Act 2004, prior to its amendment by the Marriage (Same Sex Couples) Act 2013: “(1) Two people [of the same sex] are to be treated as having formed a civil partnership as a result of having registered an overseas relationship [which includes a marriage in any country in which same-sex couples may marry] if, under the relevant law, they (a) had capacity to enter into the relationship, and (b) met all requirements necessary to ensure the formal validity of the relationship.” 175. Finally, in this connection the interveners noted that the EU’s European Parliament adopted, on 4 February 2014, a resolution on a roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity calling on the European Commission to “make proposals for the mutual recognition of the effects of all civil status documents across the EU, in order to reduce discriminatory legal and administrative barriers for citizens and their families who exercise their right to free movement”,[3] which includes marriages registered in other EU member states. (ii) Associazione Radicale Certi Diritti (ARCD) 176.", "The intervention is summarised in Oliari and Others (cited above, §§ 144-148). (iii) The Helsinki Foundation for Human Rights 177. The intervener shed light on Poland’s situation. They noted that according to the Polish constitution marriage was defined as a union between a man and a woman which fell under the protection of the Polish State. The constitution did not define the notion of family.", "They explained that since 2003 proposals and draft laws made by NGOs or political parties in favour of same-sex partnerships had been repeatedly dismissed or discontinued. At the time of the submissions there were two draft laws on registered partnerships being analysed by Parliament. They noted that a lot of the debate, including amongst the public and scholars, concentrated on whether the constitution precluded forms of partnership which provided legal protection for same-sex couples. In the meantime figures from the Centre for Public Opinion Research (Poland) showed that in 2013 social support for same-sex partnership in Poland was on the increase. 178.", "On 28 November 2012 the Polish Supreme Court delivered a resolution (no. III CZP65/12), by which it formulated the obligation of connection with lease agreements following a homosexual partner’s death. 179. However, in Poland the lack of legal recognition of same‑sex unions showed the unequal position reserved to same-sex couples in various domains, as confirmed by jurisprudence. 180.", "Poland does not recognize same-sex partnerships concluded abroad, and they cannot be registered with the Civil Status Registry (nor added as an informal entry), as this would be contrary to the Civil Status Registry Act (judgment of the Polish Supreme Administrative Court of 19 June 2003 – no. II OSK 475/12). In that light the current practice was to deny legal recognition /registration of same-sex partnerships or marriages. However, in the view of the interveners, the legal framework including the Polish Constitution did not preclude registration of partnerships contracted abroad. 181.", "The Helsinki Foundation for Human Rights considered that there was no justification for the situation in Poland, which did not provide at least minimum legal recognition of same-sex couples. (iv) Alliance Defending Freedom 182. The intervener referred to the Court’s case-law concerning the invoked provisions as well as that related to the margin of appreciation of States, particularly on sensitive issues. 183. According to their analysis of international jurisprudence, eleven of the thirteen countries that considered marriage to include same-sex couples had done so without the involvement of judicial bodies.", "In particular, they referred to the restraint concerning marriage redefinition shown by the judicial authorities of France, Germany and Italy. Thus, like the Court, the practice of judicial bodies was to show restraint by either deferring to the legislature or rejecting the claims altogether. The European Court of Justice had also considered that the Convention solely protected traditional marriage between two persons of opposite biological sex (K.B. v National Health Service Pensions Agency and Secretary of State for Health, case no. C-117/01 (2003) § 55).", "184. Despite an emerging consensus towards same-sex unions, there existed a strong counter-trend towards recognising marriage solely between a man and a woman. As of 2010 thirty-five nations had legal provisions specifying that marriage was exclusively between a man and a woman, and since then more countries had followed in that direction, such as Hungary and Croatia, which had amended their constitutions to that effect, and Slovenia, which had voted against a redefinition of marriage. 185. They considered that legal protection of same-sex partners could be established through private contract law, however, legal recognition of marriage centred on the family and it was for the State legislature to redefine marriage.", "In any event, they considered that legalising same‑sex “marriage” led to various social harms, including consequences for freedom of religion and expression. (v) European Centre for Law and Justice (ECLJ) (α) Positive obligation to provide some means of recognition 186. The intervention in connection with the provision of some means of recognition is summarised in Oliari and Others (cited above, §§ 149-158). (β) Marriage registration 187. The interveners noted the Court’s earlier case-law, which held that “the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex.", "This appeared also from the wording of the Article which made it clear that Article 12 was mainly concerned to protect marriage as the basis of the family” (Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 66, Reports 1998‑V). They considered that the right to marry was not an individual right, but merely an accessory right to the right to found a family, which was the reason why in various texts it was referred to as “the right to marry and found a family”. 188. The ECLJ submitted that the absence of a right to marry for same‑sex persons within the Convention was not disputable. Indeed, same‑sex marriage did not form part of the European public order, and Italy could not be forced to give effect (through registration) to same-sex marriages celebrated abroad, which were against its own public order.", "It was therefore legitimate for the national judge to put aside the rules of private international law by invoking the notion of public order, the content of which was to be defined freely by States. It was not for other States, who may have opted to permit their non-nationals to marry, or to permit their nationals to marry non-nationals (despite contrasting laws), to impose their new definition of marriage on other States. 189. They noted that apart from national public order there existed a European public order. Indeed the Luxembourg court held that “while it is not for the Court to define the content of the public policy of a Contracting State, it is nonetheless required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from another Contracting State”[4].", "In the interveners’ view the principal instrument of public order was the European Convention on Human Rights, which did not provide homosexuals with the right to marry as also confirmed in the more recent Schalk and Kopf judgment. It followed that even subject to supervision Italy had been in conformity with the European public order. 190. They considered that the Italian State could not be obliged to recognise the applicants’ situations just because they were presented with a fait accompli following what could in certain circumstances be considered matrimonial shopping (crossing a border for a short period of time in order to be able to marry). In the ECLJ’s view, to impose on a State the recognition of marriages obtained abroad would be against the spirit of the Convention, and beyond the Court’s competence.", "While it was true that Italy recognised different-sex marriages obtained abroad, it should not be the same for same-sex marriages. 2. The Court’s assessment (a) Article 8 191. The applicant’s complaints under this provision mainly relate to the fact that on their return to Italy they were refused registration of their marriage, either as a marriage or under any other form, depriving them of any legal protection or associated rights. 192.", "The Court reiterates that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples (see Schalk and Kopf, cited above, § 108 and Chapin and Charpentier, cited above, § 39). The same holds for Article 14 taken in conjunction with Article 12 (see Oliari and Others, cited above, § 193). Nevertheless, the Court has acknowledged that same-sex couples are in need of legal recognition and protection of their relationship (see Oliari and Others, cited above, § 165 and the case-law cited therein). Indeed, in Oliari and Others the Court concluded that in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests, and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Italian Government had overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions (§ 185). There had thus been a breach of Article 8 (§ 187).", "193. The Court notes that, following the judgment in Oliari and Others (cited above), by means of Law no. 76/2016, the Italian legislator provided for civil unions in Italy. By subsequent decrees it was provided that persons who had contracted marriage, civil union or any other corresponding union abroad could register their union as a civil union in terms of Italian law (see paragraphs 97 to 100 above). The latter legislation came into being in 2017 (see paragraph 100 above) and most of the applicants have recently benefited from it.", "194. The Court has already held, in respect of various domestic legislations, that civil unions provide an opportunity to obtain a legal status equal or similar to marriage in many respects (see for example, Schalk and Kopf, § 109, concerning Austria, Hämäläinen, § 83, in connection with the Finnish system, and Chapin and Charpentier, §§ 49 and 51, concerning France, all cited above). The Court considers that, in principle, such a system would prima facie suffice to satisfy Convention standards. The applicants also acknowledged either explicitly or implicitly that it would have sufficed, to safeguard everyone’s interests, had the authorities registered their marriage at least as a civil union (see paragraphs 151, 155 and 156 above) in so far as the applicants would have had the ability to have their relationships recognised in some form in the domestic system. 195.", "The Court notes that the new Italian legislation providing for civil unions (and registration of marriages contracted abroad as civil unions), also appears to give more or less the same protection as marriage with respect to the core needs of a couple in a stable and committed relationship, and the Court is not called upon in the present case to examine any differences in the detail of these, a matter which is beyond the scope of this case. 196. The Court reiterates in this connection that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see Schalk and Kopf, cited above, § 103). Given that at present it is open to the applicants to enter into a civil union, or have their marriage registered as a civil union, the Court must solely determine whether the refusals to register the applicants’ marriage in any form with the result that they were left in a legal vacuum and devoid of any protection, prior to 2016-17, violated their rights under Article 8. 197.", "While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014 and Wagner and J.M.W.L.", "v. Luxembourg, no. 76240/01, § 118, 28 June 2007). 198. The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case is precisely whether a fair balance was struck between the competing interests involved (see, mutatis mutandis, Dickson v. the United Kingdom, no. 44362/04, § 71, 18 April 2006).", "199. As to the lack of civil unions, the Court notes that the Government’s observations in this respect are in line with those made in the case of Oliari and Others, relating to the same period of time – 2015 being the crucial time on which the Oliari and Others judgment is based (see Oliari and Others, cited above, § 164). As in that case, in the present case, the Government did not put forward a prevailing community interest against which to balance the applicants’ momentous interests which persisted until the legislation concerning civil unions came into force and until which time the applicants in the present case continued to suffer the consequences of being unable to benefit from a specific legal framework providing for the recognition and protection of their same-sex unions. 200. Similarly, as to the failure to register the marriages, the Government failed to indicate any legitimate aim for such refusal, save for a general phrase concerning “internal public order” (see paragraph 167 above), which however, the Court observes, is not in line with domestic jurisprudence (Court of Cassation judgment no.", "4184/12, see paragraphs 61-65 above, whose findings were reiterated thereafter). In that connection, the Court notes that, unlike other provisions of the Convention, Article 8 does not enlist the notion of “public order” as one of the legitimate aims in the interests of which a State may interfere with an individual’s rights. However, bearing in mind that it is primarily for the national legislation to lay down the rules regarding validity of marriages and to draw the legal consequences (see Green and Farhat v. Malta, (dec.), no. 38797/07, 6 July 2010), the Court has previously accepted that national regulation of the registration of marriage may serve the legitimate aim of the prevention of disorder (see ibid. and Dadouch, cited above, § 54).", "Thus, the Court can accept for the purposes of the present case that the impugned measures were taken for the prevention of disorder, in so far as the applicants’ position was not provided for in domestic law. 201. Indeed, the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship - be it a de facto union or a de jure union recognised under the law of a foreign state – recognised and protected in Italy under any form. 202. The Court notes the Government’s submission that, in the area in question, the Contracting States enjoyed a substantial margin of appreciation.", "203. It reiterates that the scope of the States’ margin of appreciation will vary according to the circumstances, the subject matter and the context; in this respect one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, for example, Wagner and J.M.W.L. and Negrepontis-Giannisis, both cited above, § 128 and § 69 respectively). Accordingly, on the one hand, where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wide. On the other hand, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Van der Heijden v. the Netherlands [GC], no.", "42857/05, § 60, 3 April 2012, Mennesson v. France, no. 65192/11, § 77, ECHR 2014 (extracts); and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 182, ECHR 2017). 204. As to legal recognition of same-sex couples, the Court notes the movement that has continued to develop rapidly in Europe since the Court’s judgment in Schalk and Kopf and continues to do so.", "Indeed at the time of the Oliari and Others judgment, there was already a thin majority of CoE States (twenty-four out of forty‑seven) that had already legislated in favour of such recognition and the relevant protection. The same rapid development had been identified globally, with particular reference to countries in the Americas and Australasia, showing the continuing international movement towards legal recognition (see Oliari and Others, cited above, § 178). To date, twenty-seven countries out of the forty‑seven CoE member states have already enacted legislation permitting same‑sex couples to have their relationship recognised (either as a marriage or as a form of civil union or registered partnership) (see paragraph 112 above). 205. The same cannot be said about registration of same-sex marriages contracted abroad in respect of which there is no consensus in Europe.", "Apart from the member States of the Council of Europe where same-sex marriage is permitted, the comparative law information available to the Court (limited to twenty-seven countries where same-sex marriage was not, at the time, permitted) showed that only three of those twenty‑seven other member States allowed such marriages to be registered, despite the absence (to date or at the relevant time) in their domestic law of same-sex marriage (see paragraph 113 above). Thus, this lack of consensus confirms that the States must in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad. 206. Apart from the above, in determining the margin of appreciation, the Court must also take account of the fact that the issues in the present case concern facets of an individual’s existence and identity (see, for example, Oliari and Others, cited above, § 177). 207.", "As to the interests of the State and the community at large, in respect of the failure to register such marriages, the Court can accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognise from a Convention perspective. Indeed the refusals in the present case are the result of the legislator’s choice not to allow same‑sex marriage - a choice not condemnable under the Convention. Thus, the Court considers that there is also a State’s legitimate interest in ensuring that its legislative prerogatives are respected and therefore that the choices of democratically elected governments do not go circumvented. 208. The Court notes that the refusal to register the applicants’ marriage did not deprive them of any rights previously recognised in Italy (had there been any), and that the applicants could still benefit, in the State where they contracted marriage, from any rights and obligations acquired through such marriage.", "209. However, the decisions refusing to register their marriage under any form, thus leaving the applicants in a legal vacuum (prior to the new laws), failed to take account of the social reality of the situation. Indeed, as the law stood before the introduction of Law no. 76/2016 and subsequent decrees, the authorities could not formally acknowledge the legal existence of the applicants’ union (be it de facto or de jure as it was recognised under the law of a foreign state). The applicants thus encountered obstacles in their daily life and their relationship was not afforded any legal protection.", "No prevailing community interests have been put forward to justify the situation where the applicants’ relationship was devoid of any recognition and protection. 210. The Court considers that, in the present case, the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants’ relationship before 2016). It follows that the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions.", "211. In the light of the foregoing, the Court considers that there has been a violation of Article 8 of the Convention in that respect. (b) Article 14 212. Having regard to its finding under Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8 or 12. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 213. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 214. The applicants in applications nos. 26431/12, 26742/12, and 44057/12 claimed 10,000 euros (EUR) each, namely EUR 3,000 for the failure to register their marriage and EUR 7,000 for the lack of legal recognition of their relationship, in respect of non-pecuniary damage, as well as interest and tax on those amounts.", "They also request the Court to indicate measures under Article 46 for the purposes of redressing the structural problem in the law. The applicants in application no. 60088/12 claimed EUR 15,000 jointly in non-pecuniary damage. 215. The Government made no comment in respect of the applicants’ claims.", "216. The Court notes that the situation in Italy has changed pending proceedings before this Court; thus there is no room for indicating any measures under Article 46. It, however, awards the applicants EUR 5,000 each in respect of non-pecuniary damage. B. Costs and expenses 217.", "The applicants in applications nos. 26431/12, 26742/12, and 44057/12 also claimed EUR 13,862 (as per itemised bill of costs according to the relevant Italian law) plus interests for the costs and expenses incurred before the Court. The applicants in application no. 60088/12 claimed EUR 12,586.50 for professional fees calculated in line with the relevant Italian law in connection with proceedings before this Court, as well as an estimated EUR 2,500 for travel expenses. 218.", "The Government made no comment in respect of the applicants’ claims. 219. 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 to the applicants in application no. 60088/12 the sum of EUR 9,000, jointly, and the applicants in applications nos.", "26431/12, 26742/12, and 44057/12 the sum of EUR 10,000, jointly, for the proceedings before the Court. C. Default interest 220. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the applications admissible; 2.", "Holds, by 5 votes to 2, that there has been a violation of Article 8 of the Convention; 3. Holds, unanimously, that there is no need to examine the complaint under Article 14 in connection with Articles 8 and 12 of the Convention; 4. Holds, by 5 votes to 2, (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: (i) EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 9,000 (nine thousand euros), jointly, plus any tax that may be chargeable to the applicants in application no. 60088/12, in respect of costs and expenses; (iii) EUR 10,000 (ten thousand euros), jointly, plus any tax that may be chargeable to the applicants in applications nos. 26431/12, 26742/12, and 44057/12 in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "5. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposKristina PardalosRegistrarPresident 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 Koskelo; (b) dissenting opinion of Judges Pejchal and Wojtyczek. K.P.A.C.", "APPENDIx No Application No Lodged on Applicant Date of birth Place of residence Nationality 26431/12 20/04/2012 Francesca ORLANDI 11/10/1980 Ferrara Italian Elisabetta MORTAGNA 27/04/1981 Ferrara Italian D.P. 1974 Peschiera Borromeo Italian G.P 1970 Peschiera Borromeo Italian 26742/12 20/04/2012 Mario ISITA 11/03/1948 Saskatchewan Italian Grant Harold BRAY 13/11/1968 Saskatchewan Canadian 44057/12 06/07/2012 Gianfranco GORETTI 02/03/1965 Rome Italian Tommaso GIARTOSIO 23/10/1963 Rome Italian Fabrizio RAMPINELLI 12/05/1960 Utrecht Italian Alessandro DAL MOLIN 17/02/1964 Utrecht Italian 60088/12 11/09/2012 Antonio GARULLO 05/01/1965 Latina Italian Mario OTTOCENTO 29/05/1972 Latina Italian CONCURRING OPINION OF JUDGE KOSKELO 1. Like the majority, I have voted in favour of finding a violation of Article 8 in this case. Regrettably, however, I am unable to subscribe to the reasoning adopted by the majority. 2.", "The present case raises two issues (see paragraph 3 of the judgment). The first issue is whether there has been a violation of Article 8 because of the refusal by the Italian authorities to register the applicants’ same-sex marriages contracted abroad (foreign same-sex marriages) as marriages for the purposes of Italian law. 3. The second issue is whether there has been a violation of Article 8 because until 5 June 2016, that is, the entry into force of Law no. 76/2016, the Italian legal order did not provide for a specific legal framework concerning civil unions/registered partnerships between persons of the same sex.", "Because of this lack of a legal framework, the applicants were also unable to have their foreign same-sex marriages registered as civil unions/registered partnerships. 4. As the Court’s case-law stands, the conclusions to be drawn on both issues are, in my opinion, quite straightforward. The first issue: refusal to register foreign same-sex marriages as marriages 5. The registration of civil status, in the present context the registration of a marriage contracted abroad, is an act of recognition of that status for the purposes of the domestic legal order.", "In its judgment of 15 March 2012 (see paragraphs 61-62 of the present judgment), the Italian Court of Cassation found that foreign same-sex marriages could not be registered as marriages. In that judgment, the Court of Cassation carried out what appears to be a normal exercise in the application of private international law. 6. When a domestic legal order is faced with a question of recognition of a foreign status, the first step of the analysis is qualification. The qualification is about determining whether a foreign marriage is capable of being qualified as a marriage, that is, whether it falls within the scope of the domestic norms regulating the recognition of foreign marriages.", "Under the established principles of private international law, that qualification is subject to lex fori, which therefore determines whether a foreign marriage can be qualified as a marriage. In the present case, the Italian Court of Cassation has concluded that under Italian law a foreign same-sex marriage cannot be qualified as a marriage for the purposes of the norms of Italian law governing the recognition of foreign marriages. This means that, according to the domestic court, a foreign same-sex marriage could not be registered as marriage because such a marriage is incapable of producing the legal effects attaching to a marriage under the Italian legal order. 7. As far as the Convention is concerned, the established position under the Court’s case-law is that the Convention does not impose on the Contracting States any obligation to grant same-sex couples access to marriage.", "In Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010), this conclusion was reached both in application of Article 12 and in application of Article 14 taken in conjunction with Article 8. 8. On this basis, given that there is no Convention obligation incumbent on the Contracting Parties to allow same-sex marriage, it seems clear that the Convention cannot additionally impose on those Contracting States which do not provide for such marriages any obligation to recognize foreign same-sex marriages as marriages for the purposes of their own legal order. Consequently, the refusal by the Italian authorities to register the applicants’ same-sex marriages as marriages does not give rise to a violation of Article 8 of the Convention.", "9. Although the Convention does not oblige a State such as Italy to register foreign same-sex marriages as marriages, with the consequence that such foreign marriages would be subject to all the legal effects attaching to marriage under Italian law, it cannot be excluded that there may be situations where the State’s obligations under Article 8 to respect private and family life, either alone or in conjunction with Article 14, may become engaged on the grounds of a failure to acknowledge the manifested stable and committed relationship between a couple, based, as the case may be on a foreign same-sex marriage. This, however, is a separate matter. It appears that the Constitutional Court of Italy has, as a matter of domestic constitutional law, expressed a similar position (see paragraph 75 of the present judgment). However, no particular circumstances or grievances of this nature are at issue before this Court on the basis of the present applications.", "The second issue: refusal to provide any other kind of legal framework for same-sex unions 10. This issue was the subject of the Court’s judgment in the case of Oliari and Others v. Italy (nos. 18766/11 and 36030/11, 21 July 2015), where the Court addressed the situation prevailing under Italian law until 5 June 2016, namely that same-sex couples, who are unable to marry, were unable to have access to a specific legal framework (such as that for civil unions or registered partnerships) capable of providing them with the recognition of their status and guaranteeing to them certain rights relevant to a couple in a stable and committed relationship (see Oliari and Others, § 167). The Court found that Italy was in violation of Article 8 in that it had failed to ensure that the applicants had available a specific legal framework providing for recognition and protection for their same-sex unions, it being understood that it was not necessary for this to be in the form of allowing same-sex marriage (ibid., § 185). 11.", "Given the Court’s conclusion in Oliari and Others, it is clear that the applicants in the present case were, until the entry into force of the recent legislative amendments, victims of the same underlying failure by the Italian state as the applicants in Oliari and Others. This is so because, as far as the present applicants are concerned, the absence of a specific legal framework governing “civil unions” or “registered partnerships” between same-sex couples also had the effect that their foreign same-sex marriages could not be recognised in Italy in any form, that is, neither as marriages nor as “civil unions” or “registered partnerships”. Conclusion 12. On the basis of the above, I conclude that there has been no violation of Article 8 of the Convention on account of the Italian authorities’ refusal to register the applicants’ foreign same-sex marriages as marriages for the purposes of Italian law. 13.", "By contrast, there has been a violation of Article 8 because, until the entry into force of Law no. 76/2016 and the associated legislative amendments, no specific legal framework was available in Italy providing for recognition and protection for same-sex unions and, as a result, the applicants’ foreign same-sex marriages could not be given recognition in Italy in any form. The majority reasoning 14. The majority develop a reasoning which focuses on the refusal of registration to the same-sex couples and which, in my view, unnecessarily confuses the issues arising in the present case. 15.", "Initially, in the context of the question of admissibility, the judgment (by reference to Dadouch v. Malta, no. 38816/07, § 48, 20 July 2010) acknowledges that the registration of a marriage constitutes a recognition of legal civil status (see paragraph 144 of the present judgment). When addressing the merits of the case, however, the majority set out on a line of argument which blurs rather than clarifies the analysis. 16. In the majority judgment, the assessment of the complaints is opened by suggesting that the “refused registration of the applicants’ marriages, either as marriage or under any other form”, was a measure “depriving them of any legal protection or associated rights” (see paragraph 191).", "This is where the confusion begins. It is reiterated in paragraph 196, where the majority consider that what the Court must determine is whether the applicants’ rights under Article 8 were violated by “the refusals to register the applicants’ marriages in any form, with the result that they were left in a legal vacuum and devoid of any protection”. 17. It must be reiterated that the refusal to register the applicants’ marriages as marriages was due to the position under substantive Italian law, enshrined at the level of the Constitution, according to which marriage is restricted to persons of the opposite sex. As a corollary of this legal position, a foreign same-sex marriage is not capable of producing the same legal effects as a marriage under substantive Italian law.", "This in turn is the reason why the applicants’ foreign same-sex marriages were not recognized, and thus not registered, as marriages for the purposes of the Italian legal order. 18. Similarly, the refusal to register the applicants’ marriages “under any other form” was due to the position prevailing (until 2016) under substantive Italian law, according to which there was no specific legal framework for the recognition and protection of same-sex couples in the form of “civil unions” or “registered partnerships”. 19. Thus, it is not correct to suggest that what deprived the applicants, as couples living in stable same-sex unions, of “any legal protection” was the absence of registration.", "What deprived them of specific legal protection as couples was the absence of substantive legislation providing for a legal framework governing the union of same-sex couples, either as marriages or under another kind of status. In other words, the absence of registration was not the cause but the consequence of the substantive legal situation prevailing in Italy until the adoption of Law no. 76/2016 and related legislative measures. 20. It is worth adding that, as a matter of domestic constitutional law, the Italian Constitutional Court had already stated, prior to the enactment of Law no.", "76/2016, that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment between married couples and homosexual couples was called for. That court would in such cases assess the reasonableness of the measures (see paragraph 75 of the present judgment). Apparently the Constitutional Court did not consider that such contextual protection (prior to the new legislative framework) could or should have been dependent on any prior registration of the same-sex couples concerned. Even from this point of view, therefore, it is not correct to suggest that it is the absence of registration that has deprived the applicants of any protection to which they would otherwise be entitled under domestic law. 21.", "It is also important to note that as a matter of data protection law, State authorities are not allowed to proceed to the registration of personal data, such as those relating to the private or family relationships of individuals, unless there is a clear legal basis, with a pre-defined purpose, for such measures. These requirements are accentuated under EU law, to which Italy as Member State is subject, including requirements on data processing based on consent (Directive 95/46/EC; to be replaced as from 25 May 2018 by the General Data Protection Regulation (EU)2016/679). It would seem contradictory to envisage a positive obligation incumbent on the State to register people’s intimate relationships in the absence of specific legislation based on clearly defined and justified purposes. 22. For the applicant couples, what matters are the legal effects rather than any act of registration, irrespective of its legal significance.", "The suggestion that the State should be under a positive obligation derived from Article 8 to provide publicity to the applicants’ common project of life (see paragraph 150) – independently from an obligation to provide legal protection for their status as partners in a couple – appears rather bizarre. This is even more so in the light of current conditions, where individuals dispose of ample and easy possibilities to make public, without State assistance, any aspect of their private lives that they wish to share with others. 23. In the present judgment, the majority take, in my view, a superfluous and misguided detour around the issue of registration, before finally arriving at the conclusion that – indeed – the failure imputable to the respondent State consists, not in the refusal of registration, but in the failure to “ensure that the applicants had available a specific framework providing for the recognition and protection of their same-sex unions” (see paragraph 210 of the present judgment). In other words, the violation of Article 8 is basically the same as that found in the case of Oliari and Others v. Italy.", "Under this approach, the absence of registration as such does not raise a distinct issue in the present context. 24. With the legislative changes that have been introduced in Italy through Law no. 76/2016, these aspects of the matter will no longer be of any special importance in the respondent State. Similar issues will, however, arise in those Contracting States where the legislative situation remains similar to that previously prevailing in Italy.", "Therefore, I think it would have been helpful if the majority could have been persuaded to produce a judgment with a clearer and more analytically coherent reasoning. DISSENTING OPINION OF JUDGES PEJCHAL AND WOJTYCZEK 1. We respectfully disagree with the view of our colleagues that there has been a violation of the Convention in the instant case. Our objections concern the methodology of treaty interpretation, the methodology for ascertaining whether Convention rights have been upheld and also the application of the relevant principles and rules of law in the instant case. 2.", "The Convention is an international treaty which must be expounded according to the rules of treaty interpretation established in international law and codified in the Vienna Convention on the Law of Treaties. We note in this context that the Preamble to the Convention presents the Convention as one of the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration. The Preamble refers also to further realisation of rights as one of the methods for the achievement of greater unity between the member States of the Council of Europe. It follows that the role of the Convention is the protection of a limited number of rights, defined therein. Further realisation of human rights must serve the purpose of achieving greater unity between the members of the Council of Europe and is to be undertaken by way of international treaties.", "The mandate of the European Court of Human Rights is defined in Article 19 of the Convention in the following terms: to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. While the Court must interpret and clarify the provisions of the Convention in the context of the new cases that are brought before it, it is not mandated to change the scope of the engagements undertaken by the High Contracting Parties and in particular to adapt the Convention to societal changes. The Court should be the servant, not the master, of the Convention. Moreover, the Preamble to the Convention refers to two tools for the maintenance of fundamental freedoms: effective political democracy and a common understanding and observance of human rights. Effective political democracy requires the existence and functioning of legislatures elected according to the standards set forth in Article 3 of Protocol No 1.", "In this context, the task of adapting the Convention to the evolution of the societies in European States belongs to the High Contracting Parties, and necessarily presupposes the participation of democratically elected legislatures. In our view, even identical societal developments in all the States Parties to the Convention cannot alter the scope of their engagements under the Convention. This applies a fortiori to societal changes which occur in only some European States. Changes which occur in some States can never affect the scope of the other States’ engagements. 3.", "The European Convention on Human Rights should not be read in a legal vacuum but placed in the context of the most important international human-rights instruments. The Preamble of the Convention refers to the Universal Declaration of Human Rights, which aims at securing the universal and effective recognition and observance of the Rights therein declared. The Universal Declaration of Human Rights sets out the following rights in Article 16: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses.", "(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The minimum universally binding human rights standards have been set forth in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 23 of the International Covenant on Civil and Political Rights has the following wording: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized.", "3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.” In both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights marriage is understood as a union between a man and a woman.", "Moreover, in both instruments the family – based upon marriage between a man and a woman – was declared the natural and fundamental group unit of society and as being entitled to protection by society and the State. Marriage is the only “legal framework” for family life mentioned in those documents. The Human Rights Committee has expressed the following view concerning the meaning of Article 23 of the Covenant: “Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.” (Communication No.", "902/1999, Ms. Juliet Joslin et al. v. New Zealand, CCPR/C/75/D/902/1999, views adopted on 17 July 2002). It follows that the two above-mentioned instruments differentiate the legal status of heterosexual and homosexual couples. There is no doubt that between heterosexual and homosexual couples there are certain similarities and certain differences. However, from the axiological perspective of the two international instruments, the differences prevail over the similarities.", "It follows that their situations are not comparable for the purpose of assessing the permissibility of legal differentiations in the field of family law. 4. Article 8 § 1 of the Convention states that “everyone has the right to respect for his private and family life, his home and his correspondence”. Under Article 12 of the Convention, “men and women have the right to marry and to found a family, according to national laws governing the exercise of this right”. It transpires from those provisions that the family unit is founded primarily by a man and a woman through marriage.", "The right to respect for one’s private and family life, home and correspondence presupposes an obligation on the State to refrain from interfering with the freedom of the right-holder. Positive action is required from the State primarily to ensure protection from interference by private parties and to impose sanctions for undue interference by public authorities or by private parties. Much broader positive obligations on the State stem from Article 12, which imposes the obligation to recognise marriage as social and legal institution. Moreover, Article 5 of Protocol No. 7 requires that family law ensures equality between spouses.", "This last provision emphasises not only the rights but also the responsibilities of the spouses. Contracting a marriage entails not only rights and protection but also responsibilities and duties vis-à-vis the other spouse, children and society. Moreover, the Court’s case-law stresses the obligation to protect the best interests of children. Legislation on family law should therefore protect the best interests of children and, especially, ensure a stable family environment, free from State interference. Article 8 of the Convention, as interpreted according to the applicable rules of treaty interpretation, does not impose upon the High Contracting Parties an obligation to provide for other legal institutions (such as civil unions) for the development of family life.", "In particular, there is no obligation to ensure that persons have available specific legal frameworks providing for the recognition and protection of their unions, be they from different sexes or same-sex. This matter belongs to the exclusive domestic jurisdiction of the High Contracting Parties. The reasoning of the majority refers to the need for protection and recognition (see paragraph 192 of the judgment). There is no doubt that the State authorities in the exercise of their sovereign powers must take into consideration social realities and societal changes as well as the legitimate needs of their citizens. However, needs do not entail per se Convention rights.", "It is not clear which legitimate needs should entail positive obligations under Article 8 of the Convention. Under the approach proposed by the majority it would be necessary to establish objective criteria for identifying the needs entailing positive obligations for the States. We agree with the view that under Articles 8 and 12 the States enjoy a broad margin of appreciation. In our view, however, it is not correct to state that they have a broad margin of appreciation when setting up legal frameworks for recognition of interpersonal unions other than marriage (within the meaning of Article 12). In reality, they preserve their complete freedom of action in this respect, since the issue falls outside Convention regulation.", "5. Article 12 has been interpreted in many judgments and decisions of the European Court of Human Rights. The Court has expressed, in particular, the following views in this respect: “In the Court’s opinion, the right to marry guaranteed by Article 12 ... refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 ... is mainly concerned to protect marriage as the basis of the family” (Rees v. the United Kingdom, 17 October 1986, § 49, Series A no. 106).", "“The Court recalls that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind (see the above-mentioned Rees judgment, p. 19, §§ 49 and 50)” (Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 66, Reports of Judgments and Decisions 1998‑V)” “... the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another.", "The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (see B. and L. v. the United Kingdom, cited above, § 36).” (Schalk and Kopf v. Austria, no. 30141/04, § 62, ECHR 2010).” “The Court has accepted that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Karner, cited above, § 40, and Kozak, cited above, § 98)”( X and Others v. Austria [GC], no. 19010/07, § 138, ECHR 2013).” More recently: “The Court reiterates that Article 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law.", "It enshrines the traditional concept of marriage as being between a man and a woman (see Rees v. the United Kingdom, cited above, § 49). While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf v. Austria, cited above, § 63)” (Hämäläinen v. Finland [GC], no. 37359/09, § 96, ECHR 2014).” We agree with those views, which have their basis in the Convention as expounded under the applicable rules of treaty interpretation. They are in harmony with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. We note furthermore that the Preamble to the Convention contains a reference to a common understanding of human rights and to a common heritage of political traditions, ideals, freedom and the rule of law.", "The understanding of marriage as a stable union of a man and a woman underlying family life is part of the common legal heritage. 6. In a number of cases the Court has also addressed the issue of the possible “extension” of marriage. In the instant case the majority expresses the following view in this respect: “The Court reiterates that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples (see Schalk and Kopf, cited above, § 108, and Chapin and Charpentier, cited above, § 108)” (see paragraph 192 of the principal judgment). In this context we note firstly that that the terms “to marry” and “marriage” have become polysemes.", "Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio” (Modestinus, Digesta Iustiniani 23.2.1); “Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens” (Institutiones Iustiniani, 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. The fact that certain married couples may suffer from infertility does not affect its social function.", "Marriage in its second meaning designates a union of two persons living together. The term “marriage” in this second sense has a different connotation and a different denotation to the term “marriage” as used in the first meaning. This second meaning has developed only recently. Granting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible. “Extending” the scope of the right to marry to homosexual couples presupposes that the term “marriage” is used in a different meaning (that is, the second meaning explained above).", "Thus, Article 12 cannot be applicable to same-sex couples wishing to marry or to same-sex couples who are already married under the domestic system of another State (see paragraph 145 in fine). The “extension” of the scope of marriage to homosexual couples not only affects the denotation but also substantially changes the connotation of the term “marriage”. Secondly, the majority states that “States are still free...” (emphasis added). This suggests the Court intends to revise this view in the future. We strongly disagree with such an approach, which presupposes that the scope of treaty obligations may be adapted by the Court on the basis of societal changes and - what is more - that those societal changes can and will develop in only one direction.", "The Court has no mandate to favour or inhibit societal changes. The States remain free to decide on different issues under the Convention until such time as this treaty has been modified by the masters of the treaty. 7. The majority notes a rapid development towards legal “recognition” of same-sex couples (see paragraph 204 of the judgment) as well as the lack of consensus regarding the registration of same-sex marriages contracted abroad (see paragraph 205 of the judgment). We note that marriage is constitutionally defined as a union between a man and a woman in a growing number of European States: Bulgaria, Croatia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Poland, Serbia, Slovakia and Ukraine.", "8. The majority considers that the facts of the present application fall within the notion of private life as well as family life within the meaning of Article 8 (see paragraph 143 of the judgment) and draws the conclusion that these Articles apply in the present case. In our view this assertion is based upon a fundamental methodological error. That certain facts of a case fall within the meaning of private or family life does not in itself mean that Articles 8 or 12 are applicable. A Convention provision protecting a human right is applicable in certain circumstances if it offers at least a prima facie protection against the alleged interference with this right.", "What matters here are not the factual circumstances presented by an applicant, but the grievances raised in the application. This may be illustrated by the following fictitious example. A couple who wish to marry travel by plane to the place of the marriage ceremony, but their flight is delayed. Such facts may prima facie fall within the scope of private and family life for the purpose of Article 8. This does not, however, mean that Articles 8 or 12 are applicable if the grievance raised concerns the compensation claims in respect of the delay, since Articles 8 and 12 do not protect couples who wish to marry from such inconveniences.", "The majority has expressed the following view in paragraph 145: “Since the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State”. We note in this respect that the premise referred to in this sentence is false: it is not correct to state that in Chapin and Charpentier v. France, (no. 40183/07, 9 June 2016) the Court also considered that Article 12 applied to the applicants, a same-sex couple seeking to marry (see § 31 of that judgment). In that case, the Court considered that Article 12 applied to the specific grievance raised by the applicants for the purpose of assessing that grievance from the viewpoint of that provision. Whether Article 12 is applicable to couples who are already married under the domestic system of another State depends upon the grievance they raise.", "If, for instance, a married couple complains that their home has been unlawfully expropriated, Article 12 does not apply, in that it does not protect against expropriation. The methodological fallacy identified above may lead to the application of a provision to grievances that fall beyond the scope of negative or positive prima facie obligations under that provision. It also gives the false impression that State obligations that might arise in a new case have already been established in a previous case. In order to answer the question whether a provision protecting a human right applies it is necessary to have previously established, with sufficient precision, the scope of the State obligations stemming from the relevant provision. 9.", "The majority expresses the following views in the present judgment: “197. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse v. the Netherlands [GC], no.", "12738/10, § 106, 3 October 2014, and Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 118, 28 June 2007). 198. The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case is precisely whether a fair balance was struck between the competing interests involved (see, mutatis mutandis, Dickson v. the United Kingdom, no.", "44362/04, § 71, 18 April 2006).” We do not agree with the view that the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. Although in many cases numerous State actions and omissions of different types are entangled, there is, in our view, a clear distinction between the obligation to act and the obligation to refrain from acting. The methodology to be followed in respect of the two types of obligations is different. If the State acts in a domain protected from State interference, it must demonstrate that this interference serves a legitimate aim and is really necessary to achieve this aim. It must also show that the interference has a basis in domestic law.", "If a State refrains from acting or acts without due diligence, the question whether the interference has a basis in domestic law does not arise, but it is necessary to verify whether there is an obligation to act at all and to establish the meaning and scope of any such obligation. It must also be shown that an obligation to act may be inferred from specific provisions of the Convention under the applicable rules of treaty interpretation. The meaning of the obligation imposed upon the States has to be established with the necessary precision. The Court may establish a violation of a positive obligation to act only if it previously identifies the scope and meaning of this obligation and shows that it stems from the provisions of the Convention. It may also verify whether domestic legislation contains the necessary provisions empowering public authorities to act as required under the Convention, The present case clearly concerns the existence and scope of an obligation on State authorities to act.", "However, the majority has not established with sufficient precision the meaning and the scope of the legal rule which has been allegedly infringed by the domestic authorities. The scope of State obligations to act under Article 8 remains completely unclear. 10. The majority also expresses the following views in the present judgment: “201. Indeed, the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship - be it a de facto union or a de jure union recognised under the law of a foreign state – recognised and protected in Italy under any form.” “201.", "The Court considers that, in the present case, the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants’ relationship before 2016). It follows that the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions”. We observe in this respect that any couple, be they heterosexual or homosexual, have the means to preserve their relationship without any assistance from the State. The ability to live a happy life as a couple does not depend on any positive action by the State authorities but on the absence of State interference.", "We note - en passant - that in Italy as in other European States a growing number of heterosexual couples decide freely neither to marry nor to enter into a civil union and find their situation fully satisfactory. They assert their right to live their family lives outside any legal framework provided by legislation. Whatever the available legal frameworks, there will necessarily be substantial groups of persons who consider that those frameworks do not fit their needs. We note, furthermore, that the terms “recognition” and “protection” are vague and ambiguous. It is not clear which concrete measures are required to ensure recognition and protection, nor is it easy to identify the inconveniences against which protection is required.", "In any event, a marriage or a civil union are not the only possible forms of recognition or protection. The States authorities can recognise cohabiting couples by taking their needs into consideration and can ensure them protection by refraining from undue interference and by granting certain positive rights. In this context, we note that it is not correct to state that the national authorities failed to recognise or to protect same-sex couples. All cohabiting couples were recognised in many Italian laws and could benefit from various rights. For instance, all cohabiting couples are recognised in tax law and the tax regime applicable to cohabiting couples is aligned with the tax regime applicable to married couples (as a result of Constitutional Court judgment no.", "179/1976). Similarly, housing legislation protects a partner in the event of the other partner’s death or where a couple separate (as a result of Constitutional Court judgment no. 559/1989). It has not been shown in the instant case that the protection afforded to the applicant couples has been insufficient. 11.", "The present judgment relies on the judgment in the case of Oliari and Others v. Italy (nos. 18766/11 and 36030/11, 21 July 2015). In that case, the Court held that “in Italy the need to recognise and protect such relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation. ... In such cases, the Constitutional Court, notably and repeatedly called for a juridical recognition of the relevant rights and duties of homosexual unions ..., a measure which could only be put in place by Parliament” (Oliari, § 180).", "The Court also considered that “this repetitive failure of legislators to take account of Constitutional Court pronouncements or the recommendations therein relating to consistency with the Constitution over a significant period of time, potentially undermines the responsibilities of the judiciary...” (Oliari, § 184). Furthermore, Judge Mahoney in his concurring opinion to that judgment, joined by Judges Tsotsoria and Vehabović, considered it decisive the fact that the Italian State had chosen, through its highest courts, notably the Constitutional Court, to declare that two people of the same sex living in stable cohabitation are invested by the Italian Constitution with a fundamental right to obtain juridical recognition of the relevant rights and duties attaching to their union. In our assessment the approach adopted in the Oliari v. Italy judgment, and in the concurring opinion thereto, is mistaken. The Italian Constitutional Court expressed its views in the reasoning, not in the operative part of its decisions. The dicta cannot be considered binding upon the Italian Parliament.", "Such a situation cannot be compared to the failure to execute an obligation imposed by a judgment of a constitutional court in its operative part, which is binding upon the State authorities. 12. We note the following inconsistency in the judgment. In paragraph 200 the majority identifies the prevention of disorder as the value underlying the authorities’ attitude. On other hand, the majority do not see any prevailing interest put forward to justify the situation created by the authorities’ attitude (see paragraph 209 of the judgment).", "The weight of the conflicting values at stake has not been assessed. 13. For the reasons explained above, the applications should have been declared inadmissible as manifestly ill-founded. Moreover, in our view the applicants can no longer claim to have victim status, in that their unions have been finally registered as civil unions under Italian law or can be registered as such if they so request. Furthermore, certain applicants (the authors of applications nos.", "3 and 5) do not reside in Italy. In principle, positive obligations on the States do not apply to persons residing abroad. It is not clear how their civil status under Italian law can affect the quality of their life abroad. The question whether these applicants remain within the jurisdiction of Italy within the meaning of Article 1 has not been addressed. 14.", "To sum up: in our view the majority have departed from the applicable rules of Convention interpretation and have imposed positive obligations which do not stem from this treaty. Such an adaptation of the Convention comes within the exclusive powers of the High Contracting Parties. We can only agree with the principle: “no social transformation without representation”. [1]. http://contrattoconvivenza.com/ last accessed June 2016 [2].", "Article 1 § 2 of Law no. 7/2001, as amended by Law no. 23/2010 of 30 August 2010 – “A free union is the juridical situation between two persons, who irrespective of their sex, have been living in conditions analogous to those of married couples for more than two years” [3]. European Parliament resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity, Resolution no. A7-0009/2014, para.", "4(H)(ii). [4]. Case C-38/98. Judgment of the Court (Fifth Chamber) of 11 May 2000, Régie nationale des usines Renault SA v Maxicar SpA and Orazio Formento" ]
[ "FIFTH SECTION CASE OF DEMIDOVA v. UKRAINE (Application no. 29843/04) JUDGMENT STRASBOURG 2 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Demidova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President,Isabelle Berro-Lefèvre,Ganna Yudkivska, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 9 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29843/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Zinaida Romanovna Demidova (“the applicant”), on 12 May 2005.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 7 September 2009 the President of the Fifth 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 worked as a prosecutor’s assistant in the Pridniprovsky Transport Prosecutor’s Service, situated in Simferopol. In March 1996 she accepted a transfer in Sevastopol to work as a Transport Prosecutor’s assistant. In March 1997 she was dismissed.", "Since June 1997 the applicant has been on a pension. A. Proceedings against the prosecutor’s service 5. On 3 July 1997 the applicant instituted proceedings against the Pridniprovsky Transport Prosecutor’s Service in the Gagarinsky District Court of Simferopol (“the Gagarinsky Court”) seeking reinstatement and claiming payment of salary arrears and compensation for non-pecuniary damage. She also claimed payment of her removal expenses and other payments allegedly due to her, and challenged some orders given by her superior.", "6. On 10 March 1998 the court found against the applicant. 7. On 16 June 1998 the Sevastopol City Court (since July 2001 – the Sevastopol City Court of Appeal) quashed the judgment and remitted the case for a new consideration to the Gagarinsky Court. 8.", "On 1 October 1998 the Pridniprovsky Transport Prosecutor’s Service was closed down. Consequently, the Dnipropetrovsk Regional Prosecutor’s Service and the Prosecutor’s Service of the Autonomous Republic of Crimea joined the proceedings as defendants. 9. On 7 May 1999 the court partly allowed the applicant’s claims. On 20 July 1999 the Sevastopol City Court quashed that judgment and remitted the case for a fresh consideration to the Gagarinsky Court.", "10. By ruling of 3 November 1999 the Gagarinsky Court ordered that the claims concerning the reinstatement, payments of salary arrears, and compensation for non-pecuniary damage should be considered separately from the remainder of her claims. By judgment adopted the same date the Gagarinsky Court partly allowed the disjoined claims. On 14 December 1999 the Sevastopol City Court upheld the judgement of 3 November 1999. On 31 January 2001, following an objection (протест) by the Deputy Prosecutor General, the judgment of 3 November 1999 and the ruling of 14 December 1999 were quashed and the case in that part was remitted for a new consideration to the Gagarinsky Court.", "On 8 May 2001 it found against the applicant. On 19 June 2001 the Sevastopol City Court upheld that judgment with minor amendments. On 21 December 2001 the Supreme Court dismissed the applicant’s appeal in cassation. 11. Meanwhile, the Gagarinsky Court continued considering the remainder of the applicant’s claims.", "On 31 December 2003 it dismissed them. On 29 April 2004 the Sevastopol City Court of Appeal upheld the judgment of 31 December 2003 with minor amendments. On 19 August 2004 the Supreme Court upheld the decisions of the lower courts. B. Other proceedings 12.", "From 1997 to 2000 the applicant instituted a number of proceedings against the Sevastopol City State Administration and the Gagarinsky District Department of the Ministry of Interior of Sevastopol (“the department”). She challenged the refusal of the Sevastopol City State Administration to provide her with a free apartment and sought a ruling obliging the Gagarinsky District Department of the Ministry of Interior in Sevastopol to register her address at the apartment in which she was living. 13. In February 2000 she challenged her dismissal by the Prosecutor’s Service of the Autonomous Republic of Crimea before the Gagarinsky District Court of Sevastopol. 14.", "The proceedings in the above cases were terminated at the latest in 2000. 15. On 10 November 2007 the applicant instituted proceedings in the Gagarinsky District Court of Sevastopol against the Gagarinsky District State Administration of Sevastopol seeking a ruling obliging the latter to reply to her request. On 21 December 2007 the court declined to consider her claim on account of its procedural shortcomings. The applicant did not appeal against that decision.", "16. On 10 December 2008 the applicant lodged an administrative claim with the Gagarinsky District Court of Sevastopol challenging the actions of the Sevastopol City State Administration. The proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.", "The applicant complained that the length of the proceedings instituted in 1997 against the prosecutor’s service had been incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention, which reads 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. ...” 18. 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. 19.", "The final judgment in the case was adopted by the Supreme Court on 19 August 2004. The proceedings thus lasted almost seven years. The case was considered by the domestic courts at three levels of jurisdiction. A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 21. The Government contested the applicant’s submissions, stating that there were no significant periods of inactivity attributable to the State.", "They maintained that the case was complex and that the judicial authorities had acted with due diligence. According to the Government, the parties had been responsible for several delays. The Government, therefore, maintained that the length of proceedings in the applicant’s case was not unreasonable. 22. The applicant disagreed.", "23. The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "25. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 26. There has accordingly been a breach of Article 6 § 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 27. The applicant complained of the outcome, unfairness of the other proceedings and that the judges had failed to consider all her claims. She complained about unreasonable length of the other proceedings. She further alleged that the judges had been partial and lacked independence.", "She also complained that she had not been provided with Russian translations of the Supreme Court’s rulings adopted in her cases. She relied on Articles 6 and 13 of the Convention. 28. The applicant also complained, under Article 6 of the Convention, that the hearings in her cases had not been public. 29.", "The applicant further complained, under Article 8, that the domestic authorities had failed to provide her and her family with an appropriate apartment. She invoked Article 1 of Protocol No. 1 in respect of the proceedings instituted in 2008. She also invoked Article 2 of Protocol No. 4, referring to the facts of the case.", "30. Having carefully examined the applicant’s submissions in the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 31. 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 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 UAH 561,684 (about 55,483 euros, EUR) in respect of pecuniary damage. This amount included, inter alia, the applicant’s expenses for postage, copying and translation services.", "She further clamed UAH 800,000 (about EUR 79,024) in respect of non-pecuniary damage. 34. The Government contested these claims. 35. The Court will consider the applicant’s claim for postage, copying and translation services separately (see paragraph s 37 - 40).", "36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,200 in respect of non-pecuniary damage. B. Costs and expenses 37.", "The applicant claimed UAH 278.36 (about EUR 27) for sending her letters to the Court. She further claimed UAH 107 (about EUR 11) for sending her letters to the domestic authorities. She also claimed UAH 380 (about EUR 38) for translation services and UAH 76.80 (about EUR 8) for copying documents. 38. The applicant produced postal receipts for mailing correspondence to this Court amounting to UAH 65.82 (about EUR 7) and 187.80 Russian roubles (about EUR 5) and four receipts evidencing payment of UAH 380 for translation services.", "39. The Government agreed that the applicant had incurred some expenses in mailing her letters to the Court and left this matter to the Court’s discretion. They contested the remainder of her claims. 40. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were 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 50 for the proceedings before the Court and rejects the remainder of her claims under this head. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the proceedings instituted in 1997 against the prosecutor’s service 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 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses, 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 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 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMark VilligerDeputy RegistrarPresident" ]
[ "FIRST SECTION CASE OF NASUKHANOVA AND OTHERS v. RUSSIA (Application no. 5285/04) JUDGMENT STRASBOURG 18 December 2008 FINAL 06/04/2009 This judgment may be subject to editorial revision. In the case of Nasukhanova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 27 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5285/04) 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 six Russian nationals listed below (“the applicants”), on 22 January 2004.", "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 Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court.", "4. On 7 May 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. 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 6. The applicants are: 1) Ms Zara Khasanovna Nasukhanova, born in 1954; 2) Mr Magomed Dulayevich Kasumov, born in 1936; 3) Ms Razet Magomedovna Kasumova, born in 1976; 4) Ms Luiza Magomedovna Kasumova, born in 1981; 5) Ms Kristina Magomedovna Kasumova, born in 1984; and 6) Ms Kamila Magomedovna Kasumova, born in 1982. They live in the village of Pervomayskaya of the Grozny District of the Chechen Republic.", "7. The first and second applicants are parents of the third, fourth, fifth and sixth applicants and of Mr Ruslan Magomedovich Kasumov, born in 1974. A. Events of 3 February 2003 1. The applicants’ account (a) Apprehension of Ruslan Kasumov 8.", "On the night of 2 to 3 February 2003 Ruslan Kasumov stayed overnight at the house of his relative, Mr Sh.D., at 4 Proletarskiy Alley, the village of Pervomayskaya. At about 2 a.m. on 3 February 2003 four armoured personnel carriers (“APCs”) and four Ural vehicles pulled up in front of that house and around thirty armed men wearing camouflage uniforms broke inside it. Some of them wore masks. The men did not identify themselves; they shouted at the inhabitants in Russian. Then they took Mr Sh.D.", "and Ruslan Kasumov to the courtyard and demanded their names. Having heard the reply, they let Mr Sh.D. go back in the house and loaded Ruslan Kasumov into one of the APCs. Then the vehicles drove away in the direction of the village of Ken-Yurt. Mr Sh.D.’s wife, Ms Tamara Kh., noticed that one of the APCs had registration number 907.", "9. The applicants have had no further news of Ruslan Kasumov. (b) Apprehension of Mr A.D. 10. At about 2 a.m. on 3 February 2003 a group of armed men wearing camouflage uniforms broke into the house of Mr Sh.D.’s brother, Mr A.D., at 3 Proletarskiy Alley, the village of Pervomayskaya. They took Mr A.D., handcuffed him, asked his family name and dragged him out of the house.", "Then they put a T-shirt on his head so that Mr A.D. could not see their faces. One of the servicemen again asked Mr A.D.’s last name, said that they would clear things up later and put Mr A.D. into an APC. The vehicle travelled for about thirty minutes and then stopped. Mr A.D. heard a man asking someone if he could identify Mr A.D., who had a torch shone in his face. The reply was negative.", "The men questioned Mr A.D., asking him whether he had participated in illegal armed groups or assisted rebels. Some twenty to thirty minutes later one of the men unlocked the handcuffs and left Mr A.D. lying on the ground. The men got into the vehicles and drove in the direction of the village of Ken-Yurt. Mr A.D. waited for a few moments and ran home. 2.", "Information submitted by the Government 11. At about 3 a.m. on 3 February 2003 unidentified persons wearing camouflage uniforms and masks and armed with machine guns arrived in the village of Pervomayskaya and kidnapped Ruslan Kasumov from the house at 3 Proletarskiy Alley. B. The search for Ruslan Kasumov and the investigation 1. The applicants’ account 12.", "In the morning of 3 February 2003 the applicants learned of Ruslan Kasumov’s abduction and complained about it to several military commanders’ offices and to the prosecutor’s office of the Grozny District (“the district prosecutor’s office”). Further, they continued to search for their relative and repeatedly contacted the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms (“the Special Envoy”), the Russian President, the Russian Prosecutor General’s Office, the military prosecutors’ offices, the Administration of the Chechen Republic and the Ombudsman of the Chechen Republic. In the applications they described the circumstances of Ruslan Kasumov’s abduction and asked for assistance in establishing his whereabouts and fate. Most of the complaints were lodged by the first applicant on behalf of the whole family. The applicants were assisted in their efforts by the SRJI.", "They retained copies of some of those complaints and submitted them to the Court. The official bodies forwarded most of the complaints to prosecutors’ offices at different levels. 13. On 17 February 2003 the Special Envoy forwarded the first applicant’s letter to the prosecutor’s office of the Chechen Republic, which in its turn sent it to the district prosecutor’s office on 12 March 2003. 14.", "On 17 March 2003 the district prosecutor’s office instituted an investigation into Ruslan Kasumov’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 42050. 15. On 7 April 2003 the first applicant asked the district prosecutor’s office whether the investigation into the event had been opened and requested victim status. 16.", "On 28 April 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that on 17 March 2003 the district prosecutor’s office had opened an investigation into her son’s kidnapping in case no. 42050 and that investigative measures were being taken to solve the crime. 17. On 21 July 2003 the first applicant asked the prosecutor’s office of the Chechen Republic to help to establish her son’s whereabouts. 18.", "On 29 July 2003 the first applicant requested the district prosecutor’s office to update her on progress in the investigation and to grant her victim status. She received no reply and repeated her request in a letter of 8 August 2003. 19. On 27 August 2003 the Southern Circuit Department of the Prosecutor General’s Office informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 20.", "On 5 September 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 21. On 8 October 2003 the district prosecutor’s office granted the first applicant victim status. 22. On 13 November 2003 the military prosecutor’s office of military unit no.", "20102 (“the unit prosecutor’s office”) informed the first applicant that the inquiry had established no traces of the implication of military personnel in her son’s kidnapping. On 9 December 2003 the first applicant received a similar letter from the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”). 23. On 9 December 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office and requested it to provide detailed information on the investigation by 20 October 2003. 24.", "On 25 December 2003 the military commander of the Chechen Republic informed the first applicant that her complaint had been forwarded to the military commander of the Grozny District. 25. On 5 January 2004 the Ministry of the Interior of the Chechen Republic informed the first applicant that investigative measures necessary to establish her son’s whereabouts and to identify those responsible were being taken. 26. On 14 February 2004 the UGA prosecutor’s office forwarded the first applicant’s complaint to the unit prosecutor’s office and indicated that a new inquiry should be carried out in order to verify the facts complained of, to check any implication of the federal servicemen in Ruslan Kasumov’s abduction and to find the APC and to which authority it had belonged.", "27. On 2 March 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation into her son’s kidnapping was under way and invited her to send further queries to the district prosecutor’s office. 28. On 9 March 2004 the Ministry of the Interior of the Chechen Republic informed the first applicant that the investigation into her son’s kidnapping by “unidentified men wearing camouflage uniforms and masks and armed with machine guns” was pending, that those responsible had not been identified and that a plan of further investigative measures had been adopted. 29.", "On 27 March and 9 April 2004 the UGA prosecutor’s office forwarded the first applicant’s complaints to the unit prosecutor’s office. 30. On 9 April 2004 the military commander’s office of the Chechen Republic forwarded the first applicant’s complaint to the military commander’s office of the Grozny District, noted that Ruslan Kasumov had been apprehended by “armed men in military uniforms” and demanded that the facts complained of be verified and detailed information on progress in the investigation be provided by 15 April 2004. 31. On 14 April 2004 the military commander’s office of the Grozny District informed the first applicant that the investigation into her son’s kidnapping was pending before the district prosecutor’s office.", "32. On 21 April 2004 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office. 33. On 21 May 2004 the Deputy Prosecutor General in the Southern Federal Circuit informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 34.", "On 20 December 2004 the first applicant requested the prosecutor’s office of the Chechen Republic to inform her of the outcome of the investigation in case no. 42050. On the same date she wrote to the military commander of the Chechen Republic asking that the investigation be rendered more effective. 35. On 24 December 2004 the military commander of the Chechen Republic forwarded the first applicant’s complaint to the military commander’s office of the Staropromyslovskiy District of the Chechen Republic and requested that the facts complained of be verified.", "36. On 29 December 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that her complaint had been forwarded to the district prosecutor’s office. 37. On 17 February 2005 the Main Military Prosecutor’s Office in the Southern Circuit informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 38.", "On 18 February 2005 the district prosecutor’s office informed the first applicant that, although the investigation in case no. 42050 had been suspended for failure to identify those responsible, investigative measures were being taken to solve the crime. It was not specified which body had decided to suspend the investigation or when that decision had been taken. The first applicant was advised of an opportunity to appeal against the suspension to a higher prosecutor or to a court. 39.", "On 21 February 2005 the first applicant requested the district prosecutor’s office to provide her with detailed information on progress in the investigation in case no. 42050 and on measures taken and their outcome and to resume the investigation should it be stayed. 40. On 18 December 2006 the department of the interior of the Grozny District informed the first applicant that the investigation in case no. 42050 was under way.", "41. On 17 February 2007 the district prosecutor’s office informed the first applicant that, despite the suspension of investigation in case no. 42050, investigative measures were being taken to solve the crime. 42. On 5 March 2007 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation had been suspended.", "43. On 31 July 2007 the district prosecutor’s office notified the first applicant of the resumption of the investigation. 2. Information submitted by the Government 44. On 14 February 2003 the first applicant reported her son’s kidnapping to the authorities.", "45. On 3 March 2003 the authorities visited the house at 3 Proletarskiy Alley and inspected the crime scene. 46. On 17 March 2003 the district prosecutor’s office acting on the basis of the first applicant’s complaint of 14 February 2003 instituted an investigation of Ruslan Kasumov’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The decision stated that Ruslan Kasumov had been kidnapped from the house at 3 Korotkaya Street in the village of Pervomayskaya.", "The case file was assigned the number 42050. 47. On 12 May 2003 the district prosecutor’s office extended the term of preliminary investigation in case no. 42050 until 17 June 2003. The decision stated that at 3 a.m. on 3 February 2003 Ruslan Kasumov had been kidnapped from the house at 3 Korotkaya Street in the village of Pervomayskaya by “unidentified persons in camouflage uniforms and masks driving four APCs and four Ural vehicles”.", "48. On 17 June 2003 the district prosecutor’s office suspended the investigation for failure to identify those responsible. 49. On 2 October 2003 the investigation in case no. 42050 was resumed.", "50. On 8 October 2003 the first applicant was granted victim status and questioned. She submitted that at about 7 p.m. on 2 February 2003 her son had gone to visit his friend Mr Sh.D. On the following morning the first applicant had learned of his abduction. 51.", "On 8 October 2003 Mr Sh.D. was questioned and submitted that at about 10.30 p.m. on 2 February 2003 Ruslan Kasumov had come to his place to watch television. At some point Mr Sh.D. had fallen asleep. He woke and saw several armed and masked men inside his house.", "The armed men took away Ruslan Kasumov and Mr. A.D. An hour later Mr A.D. returned home. 52. On 10 October 2003 Mr A.D. was questioned and submitted that in the evening of 2 February 2003 Ruslan Kasumov had come to their place to watch television. At about 2 a.m. several armed men in masks had entered Mr A.D.’s bedroom, taken him outside and out him into an APC. The APC travelled for a while and then he was looked at.", "An unknown man said “No, this is not him”. When Mr A.D. returned home, he learned of Ruslan Kasumov’s abduction, but he had not seen the latter inside the APC. Mr A.D. was unable to identify the perpetrators. 53. On 3 November 2003 the district prosecutor’s office suspended the investigation.", "54. On 2 March 2004 the investigation was resumed and then suspended on 9 April 2004. 55. On 9 June 2004 the prosecutor’s office of the Chechen Republic quashed the decision of 9 April 2004 and resumed the proceedings. 56.", "On 21 June 2004 the first applicant was again questioned and submitted that on the night of Ruslan Kasumov’s abduction her neighbour named “Tamara” had seen an APC with registration number 907. She also described her son’s distinctive features and the clothes that he had been wearing on the night of the kidnapping. 57. On 17 July 2004 the district prosecutor’s office suspended the investigation in case no. 42050 and notified the first applicant accordingly.", "58. On 15 December 2004 the district prosecutor’s office resumed the proceedings and informed the first applicant accordingly. 59. On 17 January 2005 the investigation was suspended for failure to identify the perpetrators. The first applicant was informed that, despite the suspension of the proceedings, the police were taking investigative measures to solve the crime.", "60. On 18 January 2005 the district prosecutor’s office resumed the investigation for an unexplained reason and notified the first applicant accordingly. It was also decided to carry out a significant number of unspecified investigative measures in the shortest possible time span. 61. On 18 February 2005 the investigation was suspended and the first applicant was informed accordingly.", "62. On 31 July 2007 the district prosecutor’s office quashed the decision of 18 February 2005 because it was necessary to take unspecified investigative measures. 63. On the same date the district prosecutor’s office noted that the investigation file erroneously mentioned the place of kidnapping as the house at 3 Korotkaya Street, whereas the crime had been committed at 3 Proletarskiy Alley, and decided to correct the error. 64.", "According to the Government, on unspecified dates the investigation questioned a number of the applicants’ fellow villagers as witnesses. They submitted that one night in February 2003 they had heard military vehicles and seen APCs on the street; they had not noticed the APCs’ numbers. On the following day they had learned of Ruslan Kasumov’s abduction. They had not seen the missing man being placed in one of the APCs. 65.", "The investigation requested information on Ruslan Kasumov’s abduction from various law enforcement agencies. The branches of the Ministry of the Interior, the Ministry of Defence, the Department of the Federal Security Service of the Chechen Republic and the prosecutors’ offices of different districts and towns of the Chechen Republic replied that they had not arrested Ruslan Kasumov and that no special operations had been carried out in the village of Pervomayskaya on the night of 3 February 2003. Ruslan Kasumov had not been kept in any remand prisons or temporary detention facilities in the North Caucasus area. 66. The investigation, which so far had failed to establish the whereabouts of Ruslan Kasumov or to find any evidence to support involvement of the Russian federal military in the crime, was under way.", "The first applicant was being kept duly informed of all procedural decisions. 67. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in case no. 42050, providing only copies of decisions to suspend and resume the investigation, several notifications to the first applicant of the suspension and resumption of the proceedings and copies of the minutes of the first applicant’s interviews. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.", "II. RELEVANT DOMESTIC LAW 68. 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 objection AS TO ABUSE OF THE RIGHT OF PETITION 69. The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application was clearly political as the applicants wanted to “incriminate the Russian Federation in allegedly adopting a policy infringing on human rights in the Chechen Republic”. They concluded that there had been an abuse of the right of petition on the part of the applicants and that the application should be dismissed pursuant to Article 35 § 3 of the Convention. 70.", "The Court observes that the complaints the applicants brought to its attention concerned their genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed. II. The government’s objection AS TO non-exhaustion of domestic remedies A.", "The parties’ submissions 71. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Ruslan Kasumov had not yet been completed. They further argued that it had been open to the applicants to challenge in court or before higher prosecutors any actions or omissions of the investigating authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to lodge civil claims for damages caused by State authorities but they had failed to do so.", "72. The applicants contested that objection and claimed that they had no effective domestic remedies available. They emphasised that the criminal investigation had been pending for more than five years without any tangible results and had thus proved to be ineffective. B. The Court’s assessment 73.", "The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).", "74. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65). 75. 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. 76.", "As regards a civil action to obtain redress for damage sustained through 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. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.", "77. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities shortly after the kidnapping of Ruslan Kasumov and that an investigation has been pending since 17 March 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping. 78. Furthermore, 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 considers that this matter falls to be examined below. III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties’ arguments 79. The applicants maintained that it was beyond reasonable doubt that the armed men who had taken away Ruslan Kasumov had been State agents.", "They had Slavic features and spoke Russian without an accent, which proved that they were not of Chechen origin. The armed men had arrived in APCs and Ural military vehicles. In the applicants’ view, the fact that eight military vehicles capable of carrying as many as 100 persons had been able to move freely late at night in an area under the control of Russian federal troops proved that the perpetrators belonged to the Russian law enforcement agencies. The applicants also pointed out that, according to the Government, the investigation file in case no. 42050 contained confidential information related to the disposition and activities of military and special units.", "80. The Government submitted that there was no evidence that Ruslan Kasumov had been detained by State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They asserted that the statements by the first applicant, Mr Sh.D. and Mr A.D. were incoherent. The investigators had looked into the possibility of involvement of Mr Sh.D.", "and Mr A.D. in the kidnapping but had not proven it because of the right not to testify against oneself provided for in Russian law. Furthermore, the applicants and witnesses had not been specific when describing their relationships with the missing man – whether they were his cousins, friends or neighbours. 81. In their observations on admissibility and merits of the application of 10 September 2007 the Government submitted that a woman named “Tamara” who had allegedly seen an APC with number 907 had not been found. In their additional observations of 21 January 2008 the Government mentioned Ms Tamara Kh., the wife of Mr Sh.D., who had been described by the first applicant in the course of her interview of 21 June 2004.", "82. It had been impossible to find an owner of the APC with that number. None of the villagers questioned as witnesses had seen Ruslan Kasumov being placed in an APC. Mr Sh.D. had not provided a detailed account of the circumstances of the kidnapping, which, in the Government’s view, proved that in fact he was not an eyewitness to the crime.", "The investigation could not either prove or disprove the allegations that APCs had been moving around the village of Pervomayskaya on the night of Ruslan Kasumov’s kidnapping, because all law enforcement agencies had claimed that they had not carried out any special operations or arrested the missing man. 83. The Government asserted that the crime could have been attributable to illegal armed groups. They pointed out that groups of Ukrainian, Belorussian and ethnic Russian mercenaries had committed crimes in the territory of the Chechen Republic and emphasised that the fact that the perpetrators had Slavic features and spoke Russian did not prove that they were attached to the Russian military. They also observed that a considerable number of armaments and APCs had been stolen from Russian arsenals by insurgents in the 1990s and that criminals could have possessed camouflage uniforms.", "B. The Court’s evaluation of the facts 1. General principles 84. In cases in which 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 applicants’ 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‑...). 85. The Court points out that a number of principles have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (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). 86. 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. 87. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, 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 Tomasi v. France, 27 August 1992, §§ 108-11, Series A no.", "241‑A; Ribitsch, cited above, § 34; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 88. These principles apply also to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş, cited above, § 160).", "89. Finally, when there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that criminal law liability is distinct from international law responsibility under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions, which are to be interpreted and applied on the basis of the objectives of the Convention and in the light of the relevant principles of international law. The responsibility of a State under the Convention for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts.", "The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Avşar, cited above, § 284). 2. Establishment of the facts 90. The Court notes that despite its requests for a copy of the investigation file into the abduction of Ruslan Kasumov, the Government produced only a small number of the documents from the case file. They referred to Article 161 of the CCP.", "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‑... (extracts)). 91. 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. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants’ relative can be presumed dead and whether his death can be attributed to the authorities.", "92. The applicants alleged that the persons who had taken Ruslan Kasumov away on 3 February 2003 were State agents. 93. The Government, in their turn, suggested that the persons who had detained Ruslan Kasumov could be members of illegal armed groups. However, this allegation was not specific and they did not submit any material to support it.", "The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005). 94. The Court notes that the applicants’ allegation is supported by the investigation and by the witness statements. The domestic investigation accepted that the kidnappers had travelled in four APCs and four Ural vehicles (see paragraph 47 above) and took steps to check whether law enforcement agencies were involved in the kidnapping (see paragraphs 22 and 26 above).", "Furthermore, Mr A.D. reported the circumstances under which he had been taken away by armed men in the APCs (see paragraph 52 above) and several residents of the village of Pervomayskaya claimed to have seen APCs on the streets on the night of Ruslan Kasumov’s abduction (see paragraph 64 above). The investigating authorities had information concerning a registration number of one of the APCs but took no steps to question Ms Tamara Kh., although it is clear from the Government’s submissions that her identity had been established (see paragraph 81 above). The Court notes that, although neither Mr A.D. nor the villagers saw Ruslan Kasumov being placed inside an APC, it is highly plausible to assume that the armed men who apprehended the missing man and the armed men travelling in the APCs and the Ural vehicles were the same persons. 95. The Court considers it very unlikely that several military vehicles stolen by insurgents from the federal troops in the 1990s could have moved freely through Russian military checkpoints without being noticed.", "It thus finds that the fact that a large group of armed men in uniform travelling in the APCs and the Ural vehicles arrived in the village of Pervomayskaya at 3 a.m. strongly supports the applicants’ assertion that these were State servicemen. 96. Moreover, in the Court’s view the fact that the witnesses questioned by the investigators were not very specific as to the nature of their relationships with Ruslan Kasumov does not in itself suffice to cast doubt on the veracity of their statements. 97. The Court observes that where the applicants make 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 applicants, 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). 98. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was apprehended by State servicemen.", "The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Ruslan Kasumov was apprehended on 3 February 2003 by State servicemen during an unacknowledged security operation. 99. There has been no reliable news of Ruslan Kasumov since the date of the kidnapping. 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. 100. Having regard to the previous cases concerning disappearances of persons in the Chechen Republic which have come before the Court (see, among others, 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), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Ruslan Kasumov or any news of him for more than five years supports this assumption. 101. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Ruslan Kasumov must be presumed dead following his unacknowledged detention by State servicemen. IV.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 102. The applicants complained under Article 2 of the Convention that Ruslan Kasumov had disappeared after having been 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 parties’ submissions 103. The Government contended that the domestic investigation had obtained no evidence to the effect that Ruslan Kasumov was dead or that any servicemen of federal law enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.", "The first applicant had reported the crime to the authorities belatedly and thus contributed to the loss of evidence; it also proved that the kidnapping had been staged. The investigation had been suspended and than resumed a number of times, which proved that the investigators had been making efforts to solve the crime. The first applicant had been advised of her right to complain of decisions taken in the case. Operative and search measures had been taken even while the investigation had been suspended. 104.", "The applicants argued that Ruslan Kasumov had been detained by State servicemen and should be presumed dead, in the absence of any reliable news of him for more than five years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. They had verbally informed the authorities of Ruslan Kasumov’s abduction in the morning of 3 February 2003. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the investigation file to them or to the Court. B.", "The Court’s assessment 1. Admissibility 105. 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 78 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 Ruslan Kasumov 106. The Court reiterates that 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, §§ 146-47, Series A no. 324, and Avşar, cited above, § 391).", "107. The Court has already found it established that the applicants’ relative must be presumed dead following unacknowledged detention by State servicemen and that the death can be attributed to the State (see paragraph 101 above). In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Ruslan Kasumov. (b) The alleged inadequacy of the investigation of the kidnapping 108. 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 of Judgments and Decisions 1998‑I).", "The essential purpose of such an investigation is to secure 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, §§ 105-09, ECHR 2001‑III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 109.", "In the present case, the kidnapping of Ruslan Kasumov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 110. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.", "111. The Court observes that the applicants submitted that they had verbally reported Ruslan Kasumov’s abduction to the investigating authorities immediately after it took place, that is, on 3 February 2003 (see paragraph 12 above). The investigation in case no. 42050 was instituted on 17 March 2003, that is one month and eleven days after the kidnapping. 112.", "The Government attributed the delay in commencing the investigation to the applicants, arguing that the first applicant had made a complaint to the authorities only on 14 February 2003. The Court is not in a position to establish whether the applicants visited any law enforcement authorities on 3 February 2003 in the absence of any material evidence for that or to the contrary, but it does not deem it necessary to go into such details for the following reason. The Government provided no explanation whatsoever for the fact that the district prosecutor’s office had opened the investigation in case no. 42050 more than a month after 14 February 2003. The Court reiterates in this respect that the mere knowledge of the kidnapping in life-threatening circumstances on the part of the authorities gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the incident (see, mutatis mutandis, Ergi v. Turkey, 28 July 1998, § 82, Reports of Judgments and Decisions 1998‑IV; and Yaşa v. Turkey, 2 September 1998, § 100, Reports of Judgments and Decisions 1998‑VI).", "Accordingly, the Court finds that the investigating authorities should be held responsible for the delay in commencing the investigation between 14 February and 17 March 2003. In the Court’s view this delay was in itself liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in a timely fashion. 113. Furthermore, the Court notes that, as can be seen from the decisions of the district prosecutor’s office, there were some defects in the investigation and unspecified investigative measures were not promptly taken, which led to the resumption of the proceedings (see paragraphs 60 and 62 above). 114.", "It is noteworthy that the district prosecutor’s office questioned Mr Sh.D. and Mr A.D., the key witnesses to the incident, for the first time only in October 2003, that is, some six months after the commencement of the investigation (see paragraphs 51 and 52 above). Moreover, as can be seen from the letter by the UGA prosecutor’s office, by 14 February 2004 the investigation had not taken measures to establish which State agency owned the APC (see paragraph 26 above). It is obvious that these investigative steps should have been taken as soon as the investigation commenced. Such 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). 115. It does not appear from the materials at the Court’s disposal that the investigation tried to question a witness named “Tamara” who had allegedly seen the registration number of one of the APCs. The Court does not see which obstacles the investigators might have faced trying to find that witness. First, it was sufficiently clear from the first applicant’s submissions made on 21 June 2004 that she knew the woman’s address, given that she described “Tamara” as her neighbour (see paragraph 56 above).", "Secondly, according to the Government, the last name of “Tamara” was known to the investigators (see paragraph 81 above). In such circumstances the Court considers that the investigation failed to take a simple and self-evident measure in questioning a witness who could have provided essential information on the crime. 116. The Court also notes that even though the first applicant was eventually granted victim status in case no. 420050, she was only informed of the suspension and resumption 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 legitimate interests of the next of kin of the victim in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999‑III). 117. Finally, the Court notes that the investigation in case no. 42050 was suspended and resumed six times and that no proceedings whatsoever were pending between 18 February 2005 and 31 July 2007.", "118. The Court will now examine the limb of the Government’s objection that was joined to the merits of the complaint (see paragraph 78 above). Inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the authorities’ failure to take necessary and urgent investigative measures undermined the effectiveness of the investigation in its early stages. Moreover, the Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court.", "Furthermore, given that the effectiveness of the investigation had already been undermined, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the criminal law remedies relied on by the Government were ineffective in the circumstances and rejects their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation. 119. 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 Ruslan Kasumov, in breach of Article 2 in its procedural aspect. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 120.", "The applicants initially complained that Ruslan Kasumov had probably been ill-treated while at the hands of State agents and that they had endured moral suffering caused by their relative’s disappearance and the State’s failure to investigate it properly. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 121. The Government argued that the investigation had not established that either the applicants or Ruslan Kasumov had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. 122.", "In their observations on the admissibility and merits of the application of 29 November 2007 the applicants submitted that they no longer wished to have the complaint regarding alleged ill-treatment of Ruslan Kasumov examined. They further reiterated the complaint concerning their own moral suffering. B. The Court’s assessment 1. The complaint concerning the ill-treatment of Ruslan Kasumov 123.", "The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character affecting respect for human rights as defined in the Convention, which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v.Poland, no. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).", "124. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. 2. The complaint concerning the applicants’ moral suffering (a) Admissibility 125. The Court notes that this part of the 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. (b) Merits 126. 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 applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, 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). 127. In the present case the Court notes that the applicants are close relatives of the missing person.", "For more than five years they have not had any news of Ruslan Kasumov. During this period the applicants have applied to various official bodies with enquiries about their relative. Despite their attempts, the applicants have never received any plausible explanation or information as to what became of Ruslan Kasumov following his kidnapping. The responses received by the applicants mostly denied that the State was responsible for his arrest or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.", "128. In view of the above, the Court finds that the applicants suffered distress and anguish as a result of the disappearance of their close relative and their inability to find out what happened to him. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3 of the Convention. 129. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants.", "VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 130. The applicants stated that Ruslan Kasumov 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.” A. The parties’ submissions 131. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Ruslan Kasumov was had been deprived of his liberty in breach of the guarantees set out in Article 5 of the Convention.", "132. The applicants reiterated the complaint. B. The Court’s assessment 1. Admissibility 133.", "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 134. 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). 135. The Court has found it established that Ruslan Kasumov was apprehended by State servicemen on 3 February 2003 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). 136. In view of the foregoing, the Court finds that Ruslan Kasumov 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.", "VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 137. 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 138. 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 actions or omissions of the investigating authorities in court or before higher prosecutors. In sum, the Government submitted that there had been no violation of Article 13. 139. The applicants reiterated the complaint. B.", "The Court’s assessment 1. Admissibility 140. 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 141. 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. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, 25 June 1997, § 64, Reports of Judgments and Decisions 1997‑III).", "142. As regards the complaint of lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, 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, cited above, § 183).", "143. In view of the Court’s above findings with regard to Article 2, this complaint is 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 applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 144.", "It follows that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may 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. 145. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 146. As regards the applicants’ reference to Article 3 of the Convention, the Court notes that it has found a violation of the above provision on account of the applicants’ moral suffering as a result of the disappearance of their close relative, their inability to find out what had happened to him and the way the authorities had handled their complaints.", "However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention. 147. As regards the applicants’ reference to Article 5 of the Convention, the Court reiterates that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention resulting unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. VIII.", "ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION 148. In their initial application form the applicants stated that they had been discriminated against on the grounds of their ethnic origin. They relied on 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. ” 149. In the observations on admissibility and merits of 29 November 2007 the applicants stated that they no longer wished their complaints under Article 14 of the Convention to be examined.", "150. The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see Stamatios Karagiannis, cited above, § 28). 151. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.", "IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 152. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the 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 153. The first and second applicants claimed damages in respect of their son’s lost wages. They submitted that, although Ruslan Kasumov had been unemployed at the time of his abduction, he could have expected to earn at least the minimum wage and to support them financially.", "The first applicant claimed under this heading a total of 211,001.28 Russian roubles (RUB) (approximately 5,900 euros (EUR)) and the second applicant claimed RUB 129,039.52 (approximately EUR 3,600). 154. The Government regarded these claims as unfounded. 155. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings.", "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 applicants’ relative and the loss by the first and second applicants of the financial support which he could have provided. Having regard to the applicants’ submissions and the fact that Ruslan Kasumov was not employed at the time of his abduction, the Court finds it appropriate to award EUR 2,000 to the first and second applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable to this amount. B. Non-pecuniary damage 156. The first and second applicants, Ruslan Kasumov’s parents, claimed EUR 40,000 each, while the third, fourth, fifth and sixth applicants, his siblings, claimed EUR 10,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member and the indifference shown by the authorities towards them. 157.", "The Government found the amounts claimed exaggerated. 158. 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 finds it appropriate to award the first and second applicants EUR 25,000 jointly and the third, fourth, fifth and sixth applicants EUR 2,500 each in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. C. Costs and expenses 159. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research 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. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 8,265.07.", "160. The Government disputed the reasonableness and the justification of the amounts claimed under this head. They also submitted that the applicants’ claims for just satisfaction had been signed by six lawyers, while three of them had not been mentioned in the powers of attorney issued by the applicants. 161. The Court points out that the applicants had given authority to act to the SRJI and its three lawyers.", "The applicants’ observations and claims for just satisfaction were signed by six persons in total. The names of three of them appeared in the powers of attorney, while three other lawyers collaborated with the SRJI. In such circumstances the Court sees no reasons to doubt that the six lawyers mentioned in the applicants’ claims for costs and expenses took part in preparation of the applicants’ observations. 162. The Court has to establish first whether the costs and expenses indicated by the applicants’ relative were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).", "163. Having regard to the details of the information, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives. 164. 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.", "It notes at the same time, that due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. Besides, the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives. 165. Having regard to the details of the claims submitted by the applicants, the Court finds it appropriate to award under this heading EUR 4,500, less EUR 850 received by way of legal aid from the Council of Europe, plus any tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.", "D. Default interest 166. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaints under Articles 3 and 14 as regards the alleged ill-treatment of Ruslan Kasumov and alleged discrimination; 2. Dismisses the Government’s objection as to the alleged abuse of the right of petition; 3.", "Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it; 4. Declares the complaints under Articles 2, 5 and 13 of the Convention, as well as the complaint under Article 3 of the Convention regarding the applicants’ moral suffering admissible; 5. Holds that there has been a violation of Article 2 of the Convention in respect of Ruslan Kasumov; 6. 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 of Ruslan Kasumov’s disappearance; 7. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 8.", "Holds that there has been a violation of Article 5 of the Convention in respect of Ruslan Kasumov; 9. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 10. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 11. 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: (i) EUR 2,000 (two thousand euros) to the first and second applicants jointly in respect of 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 this amount; (ii) EUR 25,000 (twenty-five thousand euros) to the first and second applicants jointly and EUR 2,500 (two thousand and five hundred euros) to the third, fourth, fifth and sixth applicants each 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 these amounts; (iii) EUR 3,650 (three thousand six hundred and fifty euros), in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands, plus any tax that may be chargeable to the applicants; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 12. Dismisses the remainder of the applicants’ claims for just satisfaction.", "Done in English, and notified in writing on 18 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident" ]
[ "THIRD SECTION CASE OF ZALIZKO v. RUSSIA (Application no. 26503/07) JUDGMENT STRASBOURG 8 March 2018 This judgment is final but it may be subject to editorial revision. In the case of Zalizko 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 February 2018. Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application 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 date indicated in the appended table.", "2. The application was communicated to the Russian Government (“the Government”). THE FACTS 3. The relevant details of the application are set out in the appended table. 4.", "The applicant complained of the non-enforcement of domestic decisions given against the unitary enterprise, the foodservice centre of the commerce department of the Leningrad military district («Комбинат общественного питания Управления торговли ЛенВО») and of the lack of any effective remedy in domestic law. 5. In accordance with the Government’s Decree of 6 July 1999, the Orders of the Ministry of State Assets of 12 October 1999 and of 9 December 1999, the assets of the unitary enterprise were transferred to a federal treasury enterprise without the transfer of the debts of the company. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No.", "1 6. The applicant complained of the non-enforcement or delayed enforcement of domestic decisions given in her favour and of the lack of any effective remedy in domestic law. She relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 7. In order to determine the issue of State responsibility for the debts of State or municipal unitary enterprises the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case (see Liseytseva and Maslov, nos. 39483/05 and 40527/10, §§ 204-06, 9 October 2014). The present case is similar to Liseytseva and Maslov (ibid., §§ 208-19) from the standpoint of the debtor enterprises’ functions and the degree of actual control exercised by the authorities over the companies’ activities.", "The relevant State authority ordered the transfer of the unitary enterprise’s assets to a federal treasury enterprise without the transfer of its debts (see paragraph 5 above). In these circumstances, the Court finds that, as in the leading judgment, the debtor enterprise in the instant case did not enjoy sufficient institutional and operational independence from the authorities, and the State is to be held responsible under the Convention for the judgment debts owed to the applicant by the enterprise. 8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no.", "18357/91, § 40, Reports of Judgments and Decisions 1997-II). 9. The Court further notes that the decisions in the present application ordered specific action to be taken (see the appended table for details of court orders). The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.", "10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicant’s favour. 11. The Court further notes that the applicant did not have at her disposal an effective remedy in respect of her complaints.", "12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Voronkov v. Russia, no. 39678/03, §§ 68-69, 30 July 2015), the Court considers it reasonable to award the sums indicated in the appended table. 15. The Court 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 this application discloses a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention concerning the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs); 3. Holds (a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 8 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López Guerra Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law) Application no. Date of introduction Applicant name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non‑enforcement period Length of enforcement proceedings Domestic order (in euros) Amount awarded for pecuniary damage (in euros) Amount awarded for non‑pecuniary damage and costs and expenses (in euros)[1] 26503/07 24/04/2007 Galina Ivanovna Zalizko 20/09/1946 Leninskiy District Court of St Petersburg, 16/07/2002 Leninskiy District Court of St Petersburg, 14/03/2007 14/11/2002 27/03/2007 pending More than 14 year(s) and 10 month(s) pending More than 10 year(s) and 5 month(s) and 20 day(s) 5,832 5,832 2,000 [1]. Plus any tax that may be chargeable to the applicant." ]
[ "SECOND SECTION CASE OF YARASHONEN v. TURKEY (Application no. 72710/11) JUDGMENT STRASBOURG 24 June 2014 FINAL 24/09/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yarashonen v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Egidijus Kūris,Robert Spano,Jon Fridrik Kjølbro, judges,and Abel Campos, Deputy Section Registrar, Having deliberated in private on 3 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "72710/11) 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 Russian national of Chechen origin, Mr Zalim Yarashonen (“the applicant”), on 28 October 2011. 2. The applicant was represented by Ms S. N. Yılmaz and Mr A. Yılmaz, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 18 March 2013 the application was communicated to the Government. 4. The applicant and the Government each filed observations on the admissibility and merits of the application. The Russian Government, who had been informed of their right to intervene under Article 36 of the Convention, did not make use of this right. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. The applicant’s arrest and detention 5. The applicant was born in 1984 and lives in Istanbul. 6. On an unspecified date in 2000 the applicant fled Russia and travelled to Turkey following the alleged killing of his father and brother by Russian security forces.", "7. On 25 October 2010 he was arrested at Atatürk International Airport in Istanbul, following an identity check, on the ground that he had entered Turkey illegally and possessed no passport. He was placed in custody at the police station in the airport. 8. On 26 October 2010 the applicant was questioned by a police officer at Atatürk International Airport police station.", "He stated that he had entered Turkey in 2000 through the Sarp border crossing on the Georgian border using his birth certificate and that he had never possessed a passport. 9. On 1 November 2010 the applicant was transferred to the Kumkapı Removal Centre. 10. On 17 February 2011 the applicant met with his lawyer, Mr A. Yılmaz, who also represented him during the proceedings before the Court.", "There is no information in the case file regarding the scope of their meeting, nor is it clear whether this was the applicant’s first meeting with his lawyer. 11. On 13 April 2011 the applicant met with another lawyer, Mr F. Amca. The lawyer indicated in his meeting notes that the applicant had not yet filed an asylum request at that point. He further noted that the applicant had caught flu three to four months before, but had not sought any treatment and was still suffering from it.", "It appears from the lawyer’s notes that at the end of the meeting the lawyer advised the applicant to speak to the officers in charge at the removal centre about his asylum request and his health problems. 12. On 18 April 2011 the applicant applied for asylum. 13. On 21 April 2011 the applicant’s lawyer, Mr A. Yılmaz, sent a letter to the General Security Directorate of the Ministry of the Interior by standard post complaining that the applicant was being detained unlawfully and requesting his release.", "In the letter he also brought the applicant’s health issues to the authorities’ attention and requested medical assistance. According to the information provided by the parties, the letter reached the Ministry of the Interior on 2 May 2011. 14. In the meantime, on 29 April 2011, the applicant was released from detention and granted an asylum-seeker certificate. He was instructed to reside in the Sakarya province pending the determination of his asylum request.", "15. On 30 April 2011 the applicant went to a private clinic in Istanbul complaining of a cough and fatigue. He was diagnosed with an infection of the lower respiratory tract on the basis of a chest X-ray examination. He was prescribed a ten-day course of antibiotics and was asked to return to the clinic for a check-up at the end of that period. It is not clear whether the applicant did return to the clinic for his check-up.", "16. On 9 June 2011, as his symptoms persisted, the applicant went to the Süreyyapaşa Thoracic and Cardiovascular Surgery Training and Research Hospital in Istanbul. Further medical tests conducted at the hospital revealed that the applicant was suffering from tuberculosis pleurisy. He received in-patient treatment at the hospital until 15 June 2011. On being discharged, he was advised to apply to a tuberculosis clinic for follow-up treatment.", "The applicant has not provided any information regarding his state of health or the treatment he received following his discharge. B. The conditions of detention at the Kumkapı Removal Centre 1. The applicant’s account 17. The applicant claimed that the Kumkapı Removal Centre was severely overcrowded at the time of his detention, which lasted five months and twenty-seven days.", "He had to share a dormitory room of approximately 40 sq. m with twenty-four to forty-five other people, who were provided with only fifteen bunk-beds. The centre had an overall capacity of 560 people at the relevant time, but accommodated around 600 people. The overcrowding of the centre led to problems of hygiene. The building was infested with insects and there were frequent outbreaks of contagious diseases; he had thus contracted a serious bacterial infection.", "The quality and quantity of the food provided was also fairly poor. Moreover, there was no provision for outdoor exercise at the Kumkapı Removal Centre, which meant that he had been unable to go outside throughout his detention. 2. The Government’s account 18. The Government submitted that the Kumkapı Removal Centre where the applicant was detained had a capacity of 300 persons.", "The detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were five dormitory rooms on each floor, measuring 50, 58, 69, 76 and 84 sq. m respectively. There were fifteen to twenty beds in each of the ten rooms reserved for male detainees and all rooms were sufficiently ventilated. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq.", "m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise in suitable weather conditions. A doctor was present on the premises every Thursday and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time at the removal centre, and the building was disinfected whenever necessary. 19.", "In support of their claims, the Government submitted, inter alia, photos of two of the dormitory rooms, both of which appeared well lit and fairly clean, as well as of the hallway and the cafeteria on one of the floors reserved for male detainees. Although the total number of beds cannot be ascertained from the photos, it is observed that there were two rows of bunk beds positioned against the walls in both rooms, leaving a narrow corridor in the middle of the room. While some of the bunks were touching each other, others were separated by big metal lockers. No other furniture, such as tables and chairs, was present in the rooms; there were blankets on the beds in only one of the rooms and the other room had no bedding at all. A television was available on each floor in the cafeteria.", "Moreover, a metal sit‑up bench and an exercise bike were shown on the photo of the hallway of one of the floors reserved for male detainees. No photos of the toilets or the showers were provided. 20. The Government further stated that when the applicant first arrived in the Kumkapı Removal Centre on 1 November 2010, there were 265 detainees in total (163 male and 102 female). They also claimed that from 1 November 2010 until the applicant’s release on 29 April 2011, the number of detainees never exceeded 300 and submitted the registers showing the occupation rates in respect of male detainees on various dates as follows: Date Number of male detainees First floor Second floor Total 1 November 2010 No separate count No separate count 163 28 February 2011 55 101 156 1 March 2011 64 124 188 15 March 2011 52 114 166 31 March 2011 49 108 157 14 April 2011 42 Unknown Unknown 15 April 2011 Unknown 160 Unknown 28 April 2011 Unknown 136 Unknown II.", "RELEVANT LAW AND PRACTICE A. Domestic law and practice 1. Relevant legislation and practice 21. The relevant provisions of the Turkish Constitution provide as follows: Article 36 “Everyone has the right to a fair trial ..., as a claimant or defendant, before courts of law ...” Article 125 “All actions or decision taken by the authorities are amenable to judicial review ... If the implementation of an administrative measure would result in damage which is difficult or impossible to compensate and the measure is also clearly unlawful, a stay of execution may be granted, stating reasons ...” The administration shall be liable to make compensation for damage resulting from its actions or decisions.” 22.", "Section 2(1) (b) of the Administrative Procedure Act (Law no. 2577) provides that administrative proceedings can be brought on account of a violation of personal rights by an administrative action or measure. 23. A description of the other relevant domestic law and practice at the material time can be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009).", "2. Report of the Sub-committee established by the Human Rights Inquiry Committee of the Grand National Assembly of Turkey 24. At its meeting of 8 December 2011 the Human Rights Inquiry Committee of the Grand National Assembly of Turkey established a sub-committee to look into the problems encountered by refugees, asylum seekers and irregular migrants in Turkey, including the conditions in which they were detained pending their deportation. For that purpose, on 10 and 11 May 2012 two Members of Parliament (“MPs”) visited the removal centres in Edirne, Kırklareli and Istanbul, including the Kumkapı Removal Centre. 25.", "The visit report indicated that the Kumkapı Removal Centre had a total capacity of 300 detainees (200 male and 100 female). However, at the time of the delegation’s visit (11 May 2012), the removal centre accommodated 297 male, 97 female and 7 minor detainees. The number of beds varied according to the rooms and the hygiene in the toilets and bathrooms was unsatisfactory. There was a big cafeteria in the removal centre, with sufficient amenities, as well as the possibility to purchase food and basic provisions. The detainees had freedom of movement inside the centre and also had access to television in the cafeterias.", "They also benefited from the sports equipment provided in the corridors. 26. The delegation was particularly critical of the fact that the detainees were authorised to go outdoors only once a week, when the weather conditions permitted. It recommended measures allowing the detainees daily outdoor exercise at their own convenience. B.", "International material 27. The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2013) provide, in so far as relevant, as follows: “29. In the view of the CPT, in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel.", "Obviously, such centres should provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them.", "... 79. Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. For example, detained irregular migrants ... should be restricted in their freedom of movement within the detention facility as little as possible.” The same report also indicates, on pages 25 and 26, that material conditions of detention may in certain cases be such as to favour the spread of transmissible diseases and that States have a duty of care towards persons deprived of their liberty to prevent this problem by, inter alia, ensuring satisfactory hygiene and absence of overcrowding in places of detention, as well as access to natural light and good ventilation. 28. In June 2009 the CPT visited six removal centres for foreigners in different provinces in Turkey, including the Kumkapı Removal Centre in Istanbul (referred to as the “Istanbul-Kumkapı Detention Centre”) where the applicant was also detained.", "The relevant extracts from its visit report dated 16 December 2009 read as follows: “Istanbul-Kumkapı Detention Centre, which was opened in March 2007, is the largest detention facility for immigration detainees in Turkey, with an official capacity of 560 places (for 360 male and 200 female detainees). At the time of the visit, the centre was accommodating 124 foreign nationals. ... 44. As regards material conditions in the detention centres visited, the delegation noted a sharp reduction in the number of detained persons during the two preceding weeks in several establishments visited (in particular at Istanbul-Kumkapı and Edirne-Tunça), where apparently up to 50% of all detainees had been released. This had obviously had a beneficial effect on the living conditions prevailing in the establishments at the time of the visit.", "... 45. At Istanbul-Kumkapı, material conditions in the new detention facility were generally much better than those found in the past in the former detention facilities in Istanbul [footnote: Though some improvements were made only very shortly before the visit (e.g. painting of walls, contracting of external cleaning staff, etc.)]. In particular, most detention rooms were spacious, well lit (with good access to natural light) and very clean. That said, it is clear that the centre’s current official capacity of 560 places is far too high, given the space and facilities available.", "In particular, the living space in the detention rooms is insufficient (e.g. 58 m² for 30 beds), and communal rooms are inadequate in terms of size and equipment (e.g. on the ground floor with a total of 120 beds, the communal room was equipped with eight tables and 23 chairs). The CPT recommends that steps be taken to significantly reduce the official capacity of Istanbul-Kumkapı Detention Centre and to ensure that future occupancy levels are always kept within the limits of the new capacity. ... 47.", "It is of particular concern that, with the exception of Kırklareli and, as regards women and children, Istanbul-Kumkapı [footnote: At Kumkapı, the existing courtyard was primarily used as a parking area for police vehicles. Due to the limited space available, only female detainees and children benefited from daily outdoor exercise, whereas male adult detainees were usually denied outdoor exercise for weeks and months on end], foreign nationals held in the detention centres visited were offered no outdoor exercise at all. Such a state of affairs is unacceptable. During the end-of-visit talks, the delegation made an immediate observation and called upon the Turkish authorities to take the necessary measures to ensure that all immigration detainees at the detention centres in Ağrı, Edirne-Tunça, Istanbul-Kumkapı, Konya and Van are able to benefit from at least one hour of outdoor exercise per day. By letter of 23 September 2009, the Turkish authorities informed the Committee that foreign nationals held at Istanbul-Kumkapı Detention Centre “are allowed to open air for an average of one hour per day and benefit from outdoor activities”...", "The CPT welcomes the steps taken thus far and would like to receive confirmation that all foreign nationals held at Ağrı and Istanbul-Kumkapı Detention Centres are able to benefit from at least one hour of outdoor exercise per day. ... 51. In several detention centres visited, many complaints were received about the quality and/or quantity of the food provided. The director of one of the centres visited affirmed to the delegation that, in his experience, the budgetary allocation of 4.60 TLR per person and day was clearly insufficient. The CPT recommends that the provision of food to immigration detainees be reviewed in all the detention centres for foreigners, to ensure that it is adequate in terms of both quantity and quality.” 29.", "On 11 June 2010 the Turkish Government responded to the aforementioned CPT report. Below are extracts from the relevant parts of the Government’s response: “According to Article B/4 of the Circular on the fight against illegal migrants (No. 632 dated 19 March 2010), a Directive will be prepared by the Directorate General of Security to be disseminated to Governorships, on the physical condition requirements of the return centers and basic management elements of these centers. This Directive will cover the issues such as establishment and administration of return centers, arrangement of in kind and monetary assistance allocated by the NGOs, relations with these organizations, registries on illegal migrants accommodated in these centers (compulsory registry books and modalities of safekeeping precious belongings as well as other belongings of illegal migrants that cannot be used at return centers) and modalities of transferring illegal migrants from provinces where holding capacity has been surpassed to other provinces with available places. ...", "Article B/5 of the Circular on the fight against illegal migration states that ‘the necessary conditions of the return centers where illegal migrants are accommodated until their deportation and the basic elements of implementation in these centers are enclosed and procedures shall be conducted according to these elements until the Directive issued by the Directorate General of Security enters into force.’ According to Article 19 of the “Basic Elements” Section of the Circular, the following procedures shall be conducted regarding the centers; ... e. Necessary measures shall be taken for adequate access to natural light. f. Outdoor exercise on a daily basis shall be offered to persons held for 24 hours or more. g. Necessary measures shall be taken in order to provide longer hours and a greater variety of activities to the illegal migrants accommodated in the centre. h. Television sets shall be provided for the use of illegal migrants. ...", "According to Articles 9, 10, 11, 12 and the “Basic Elements” Section of the Circular on the fight against illegal migration; -Hot water shall be provided throughout the day. -Sufficient number of toilets shall be constructed both in men’s and women’s sections. -Sufficient number of washing machines shall be provided. Sheets and blankets utilized by illegal migrants shall be regularly washed to meet hygiene conditions. -Mineral water shall be provided on a daily basis to illegal migrants, where tap water is not potable.", "-The services provided to illegal migrants (such as food and cleaning) shall be realized by outsourcing, in principle. ...” 30. The United Nations (“UN”) Special Rapporteur on the human rights of migrants, Mr François Crépeau, undertook an official visit to Turkey on 25‑29 June 2012 at the invitation of the Turkish Government. He visited, inter alia, the removal centres in Kumkapı and Edirne, and submitted a report to the UN General Assembly on 17 April 2013 (A/HRC/23/46/Add.2). The relevant parts of the report read as follows: “42.", "During his visit, the Special Rapporteur noted an insufficient regulation of the reasons for administrative detention of migrants, its duration, detention conditions and the access to safeguards for the detained migrants. ... 52. While a circular issued by the Turkish National Police in September 2010 gave the instruction to systematically inform irregular migrants held in removal centres in writing of the reason for being held in the centre, the duration of stay, their right to have access to a lawyer, and the right of appeal against the decision to be held in a removal centre or deportation order, the Special Rapporteur’s interviews with detained migrants at Edirne and Kumkapı removal centres indicate that this circular is not systematically implemented in practice. ... 54. The Special Rapporteur also remains disturbed about the conditions in these removal centres: detainees, including children, are often locked in their rooms or wards, and are given little or no access to outdoor areas.", "Overcrowding and unclean conditions, including inadequate food, are also significant concerns.” 31. The European Commission’s 2011 Progress Report on Turkey published on 12 October 2011 (SEC (2011) 1201) made the following observations regarding the absence of detailed provisions on the management of removal centres in Turkey (page 91): “4.24 ... There is no comprehensive set of rules/guidelines for the management and operation of removal centres. The TNP [Turkish National Police] has been tasked with drafting a ‘directive’ to regulate issues concerning the management of removal centres, including the physical conditions in centres, staff to be appointed, the security of and in the centres, provision of food and health, treatment of vulnerable groups, as well as involvement of civil society in the centres. This ‘directive’ has not yet been adopted.” The Progress Report of 2012 (published on 10 October 2012, SWD 2012 (336) page 75) similarly noted that “minimum living standards at removal centres and their inspection remain unregulated”.", "32. Lastly, in its report “Stranded: Refugees in Turkey Denied Protection” released in 2009[1], Amnesty International expressed its concerns regarding the arbitrary detention of asylum seekers and refugees in Turkey in the following terms: “Amnesty International is concerned that many of the violations of the rights of refugees and asylum-seekers in detention stem from the lack of legal protection in national law for persons in administrative detention. Asylum-seekers and refugees held in administrative detention in foreigners’ guest-houses are regarded as under administrative supervision (idari gözetim) rather than detention. In practice this results in asylum-seekers and refugees being unfairly denied the legal protections applicable to all persons in detention provided under international law. Irrespective of national law categorizations, individuals hold rights under international law as highlighted above, including the right to be free from arbitrary detention and protections if detained.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 33. Relying on Article 5 §§ 1, 2, 3 and 4 and Article 13 of the Convention, the applicant complained that he had been unlawfully detained without the opportunity to challenge the lawfulness of his detention and that he had not been duly informed of the reasons for his deprivation of liberty. He further maintained, under Article 5 § 5 of the Convention, that he had had no right to compensation under domestic law in respect of these complaints. 34. The Court considers at the outset that the complaint under Article 13 falls to be examined under Article 5 § 4 of the Convention alone, which provides a lex specialis in relation to the more general requirements of Article 13 (see Amie and Others v. Bulgaria, no.", "58149/08, § 63, 12 February 2013). A. Admissibility 35. As regards the complaint under Article 5 § 3 of the Convention, the Court notes that the applicant was not arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5, as no criminal charges were brought against him on suspicion of having committed an offence. 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 (see Soldatenko v. Ukraine, no. 2440/07, § 103, 23 October 2008).", "36. The Court notes that the remaining complaints under Article 5 §§ 1, 2, 4 and 5 are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 1. Alleged violation of Article 5 § 1 of the Convention 37. The Government stated that the applicant had been detained from 25 October 2010 to 29 April 2011 for deportation purposes, within the meaning of Article 5 § 1 (f) of the Convention. 38. The applicant maintained his allegation that his detention had had no legal basis in domestic law.", "39. The Court has already examined a similar grievance in the case of Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 125‑135, 22 September 2009, in which it found that in the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation, the applicants’ detention was not “lawful” for the purposes of Article 5 of the Convention. There are no particular circumstances which would require the Court to depart from its findings in that judgment. 40.", "There has accordingly been a violation of Article 5 § 1 of the Convention in the instant case. 2. Alleged violation of Article 5 § 2 of the Convention 41. The Government submitted that, following his arrest, the applicant was questioned by police officers on 26 October 2010 in relation to his illegal entry into Turkey, at which point he was also informed of the reasons for his detention. 42.", "The applicant reiterated his complaint. 43. The Court notes that the general principles governing the elementary safeguard embodied in Article 5 § 2 of the Convention have been set out in the case of Abdolkhani and Karimnia (cited above, § 136). The Court reiterates in this connection that in accordance with Article 5 § 2, anyone who is arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for the arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. 44.", "Referring to the Government’s submission noted in paragraph 37 above, the Court observes that the applicant was detained for deportation purposes from the very start of his detention on 25 October 2010. Nevertheless, neither the record of the interview dated 26 October 2010, nor any other documents submitted by the Government show that he had been notified of the reasons for his detention at the airport police station or subsequently at the Kumkapı Removal Centre (see Dbouba v. Turkey, no. 15916/09, § 52, 13 July 2010). 45. There has therefore been a violation of Article 5 § 2 of the Convention.", "3. Alleged violation of Article 5 §§ 4 and 5 of the Convention 46. The Government submitted that the applicant could have applied to the administrative courts under Articles 36 and 125 of the Constitution in order to challenge the lawfulness of his detention. 47. The applicant maintained his allegations and claimed that the remedy suggested by the Government was not effective in practice.", "48. The Court notes that it has found a violation of Article 5 §§ 4 and 5 of the Convention in the past in a number of similar cases, where it concluded that the Turkish legal system did not provide persons in the applicant’s position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article 5 § 4, and receive compensation for their unlawful detention as required under Article 5 § 5 of the Convention (see Abdolkhani and Karimnia, cited above, § 142; Tehrani and Others v. Turkey, nos. 32940/08, 41626/08 and 43616/08, § 79, 13 April 2010; and Dbouba, cited above, §§ 53‑54). In the absence of any examples submitted by the Government in which the administrative courts had speedily examined requests and ordered the release of an asylum seeker on grounds of unlawfulness of his or her detention and had awarded him or her compensation, the Court sees no reason to depart from its findings in the aforementioned judgments. 49.", "Moreover, the Court has already found that the applicant was not duly informed of the reasons for the deprivation of his liberty (see paragraph 45 above). It considers that this fact in itself had the effect that the applicant’s right of appeal against his detention under Article 5 § 4 was deprived of all substance (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 432, ECHR 2005‑III; Abdolkhani and Karimnia, cited above, § 141; and Dbouba, cited above, § 54). 50. In the light of the above, the Court concludes that there has been a violation of Article 5 §§ 4 and 5 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION IN CONNECTION WITH THE APPLICANT’S DETENTION 51. Relying on Article 3 of the Convention, the applicant complained about the material conditions at the Kumkapı Removal Centre and alleged that he had been denied medical assistance there despite the health problems that had affected him during the last three or four months of his detention. He also complained, under Article 13, that there were no effective domestic remedies available to him to complain of a violation of his rights under Article 3. A.", "Material conditions of detention 1. Admissibility 52. The Government submitted that this part of the application should be rejected for failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They maintained in this connection that the applicant should have applied to the administrative or judicial authorities and sought compensation in accordance with Article 125 of the Constitution or section 2(1) (b) of the Administrative Procedure Act. The Government indicated that they were not able to submit any sample administrative or judicial decisions specifically reviewing conditions of detention at a foreigners’ removal centre; however, that did not mean that the administrative remedies they suggested were ineffective.", "Instead, they submitted a sample case in which an administrative court had awarded compensation under Article 125 of the Constitution to a person whose son had lost his life in police custody, following the conviction of the relevant police officers of torture. 53. The applicant contested the Government’s argument, stating that no adequate remedy existed in relation to his complaint, which also explained the Government’s failure to submit concrete and relevant examples of how the legal provisions in question would provide effective redress in practice. The applicant, for his part, submitted two different examples, in which the Istanbul Governor’s Office had refused to institute criminal proceedings in respect of the complaints of two foreigners as regards the conditions of detention at two different removal centres, including the one in Kumkapı. Both decisions of the Istanbul Governor’s Office had been upheld by the Istanbul Regional Administrative Court.", "The claimant, who had been held in Kumkapı, had expressly complained of the severe overcrowding there, but neither the Governor’s Office nor the Istanbul Regional Administrative Court had responded to that allegation in their decisions. In those circumstances the applicant considered that there was no point in using a remedy regarding the poor conditions of his detention. 54. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the complaint that the applicant did not have an effective remedy at his disposal by which to complain of the inhuman and degrading conditions during his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see, among others, Sergey Babushkin v. Russia, no.", "5993/08, § 34, 28 November 2013). 55. The Court further finds that the applicant’s complaints under Articles 3 and 13 of the Convention concerning the conditions of his detention at the Kumkapı Removal Centre and the lack of effective remedies in that respect are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. The Court therefore declares these complaints admissible.", "2. Merits (a) Article 13 of the Convention 56. As indicated in paragraph 52 above, the Government submitted that the applicant had had effective remedies in respect of his grievances about the conditions of his detention. 57. The applicant reiterated his complaints and arguments set out in paragraph 53 above.", "58. The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention as in the present case (see below paragraphs 74-81) and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). 59.", "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 theory, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 96, 10 January 2012). The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Ananyev and Others, cited above, § 94). The “authority” referred to in Article 13 does not necessarily have to be a judicial authority, but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective.", "60. In the area of complaints about inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: (i) an improvement in the material conditions of detention, and (ii) compensation for the damage or loss sustained on account of such conditions. If an applicant has been held in conditions that are in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred (see Sergey Babushkin, cited above, § 40). 61.", "The Court stresses that where the fundamental right to protection against torture, inhuman or degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective. In contrast to cases concerning the length of judicial proceedings or non-enforcement of judgments, where the Court has accepted in principle that a compensatory remedy alone may suffice (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 187, ECHR 2006‑V; and Burdov v. Russia (no. 2), no.", "33509/04, § 99, ECHR 2009 ‑...), the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to that provision requires, in the Court’s view, that the States parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Otherwise, the prospect of future compensation would legitimise particularly severe suffering in breach of this core provision of the Convention and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements (see Ananyev and Others, cited above, § 98). 62. Turning to the facts of the present case, the Court observes that the Government have suggested, in broad terms, that it was open to the applicant to raise his complaints with the domestic authorities and bring an action for compensation before the administrative courts in general judicial review proceedings as provided for in Article 125 of the Constitution and section 2(1)(b) of the Administrative Procedure Act.", "They did not refer to any other remedies designed specifically to afford redress for inadequate conditions of detention in foreigners’ removal centres. 63. The Court reiterates in this regard that it is incumbent on the respondent Government to illustrate the practical effectiveness of the remedies they suggest in the particular circumstances in issue with examples from the case-law of the relevant domestic courts or decisions of the administrative authorities (see Ananyev and Others, cited above, § 110; and Stanev v. Bulgaria [GC], no. 36760/06, § 219, ECHR 2012). The Turkish Government did not, however, submit a single judicial or administrative decision showing that an immigration detainee had been able to vindicate his or her rights by using the remedies suggested, that is, where recourse to an administrative court or authority had led to the improvement of detention conditions and/or to an award of compensation for the anguish suffered on account of the adverse material conditions (see similar findings of the Court in the context of Article 35 § 1 in Abdolkhani and Karimnia v. Turkey (no.", "2), no. 50213/08, § 25, 27 July 2010; and Kurkaev v. Turkey, no. 10424/05, §§ 26-27, 19 October 2010). They likewise failed to provide an explanation as to why they could not submit any such examples. 64.", "The Court considers that the onus on the Turkish Government to prove the existence of effective domestic remedies in this context was particularly stringent for two reasons. Firstly, the Court reiterates that there was a lacuna in Turkish law at the material time regarding the detention of foreign nationals in the context of immigration controls, whereby such practice was not regarded as a deprivation of liberty but as mere “accommodation” or “sheltering” of foreigners in removal centres or “guest houses” pending their deportation (see, for instance, Abdolkhani and Karimnia, cited above, § 120, as well as the relevant extract from the Amnesty International report cited in paragraph 32 above). The wholly arbitrary practice governing the deprivation of liberty of immigration detainees raises a legitimate concern about the extent to which these individuals’ rights would be upheld when challenging the conditions of their unrecognised detention. Secondly, as noted by the UN Special Rapporteur and the European Commission, at the material time there was no comprehensive regulation in Turkey on the conditions in which irregular immigrants should be detained (see paragraphs 30 and 31 above). In its response to the CPT report of 16 December 2009, the Government indicated that the Directorate General of Security had been tasked with preparing a directive concerning, inter alia, the material conditions in foreigners’ removal centres and that the “basic elements” set out in Circular no.", "632 would apply in the interim (see paragraph 29 above). The Court notes that the Government have not provided any information on whether the “basic elements” are being enforced. Nor have they indicated whether the aforementioned directive has come into force. In these circumstances, even assuming that detention conditions in foreigners’ removal centres were amenable to review, as indicated by the Government, the standards against which such conditions would be assessed are unclear. 65.", "In view of this ambiguity regarding all aspects of detention pending deportation, the Court requires more concrete evidence of the effectiveness in practice of the remedies suggested by the Government. In the absence of such evidence, the Court cannot but conclude that the capacity of the general remedies mentioned by the Government to provide effective preventive and/or compensatory redress in this context has not been established with a sufficient degree of certainty. 66. The Court therefore rejects the Government’s objection concerning the non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 on account of the absence of an effective remedy to complain about the conditions of detention on the particular facts of the instant case. (b) Article 3 of the Convention (i) The parties’ submissions 67.", "The Government reiterated their account of the detention conditions at the Kumkapı Removal Centre (see paragraphs 18-20 above) and stated that those conditions complied with the requirements of Article 3 of the Convention. They provided photos of some of the sleeping and communal areas, as well as copies of the logs recording the number of male detainees at the removal centre on various dates during the applicant’s detention. 68. The applicant maintained that during the period of his detention the Kumkapı Removal Centre was extremely crowded and accommodated approximately 600 persons, contrary to the information provided by the Government. The applicant submitted a report drafted by two medical doctors as evidence of the size and number of the dormitory rooms and other facilities reserved for male detainees in the removal centre, which conflicted somewhat with the figures provided by the Government.", "According to that report, there were only four rooms measuring 76, 50, 58 and 40 sq. m respectively on the first floor, and five rooms measuring 69, 76, 50, 58 and 84 sq. m respectively on the second floor. Each floor was also equipped with five showers, six toilets and a cafeteria of 69 sq. m. The applicant claimed that he shared a room of approximately 40 sq.", "m with thirty-five to forty-five people (between 1.14 to 0.89 sq. m per person), who were provided with only fifteen bunk beds to use between them. Some of the detainees were forced to sleep on the floor on blankets, or on the rug provided in the prayer area. The cramped condition of the rooms was also evident in the photos provided by the Government, which showed that there was not much space to move between the furniture. Some of the bunk beds were touching each other and two people could hardly walk side by side in the room.", "The applicant further claimed that while the Government had indicated the number of detainees per floor, they had failed to provide specific information on the surface area and occupancy rate of the particular room where he had stayed for over six months. 69. The applicant added that, contrary to the Government’s allegations, he had not been allowed outdoors even once during the entire period of his detention, which had lasted approximately six months. Moreover, the cafeterias on each floor, to which the Government had referred, were only accessible during meal times; he had had to spend the rest of the time in his overcrowded room, which was poorly ventilated, polluted with cigarette smoke and unclean. The rooms looked deceptively cleaner and tidier in the photos provided by the Government; it was evident that they had been cleaned just before the photos had been taken.", "In reality, the whole facility was infested with insects, including bedbugs. By way of proof, the applicant submitted a photograph of a detainee who had been badly bitten by bedbugs. Sleeping conditions were further aggravated by the fact that the light was permanently on in the room and by the general commotion and noise from the large number of detainees. The applicant complained, lastly, of the poor quality of the food provided at the removal centre. (ii) The Court’s assessment (α) General principles 70.", "The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level 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. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008).", "71. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Riad and Idiab, cited above § 99; S.D. v. Greece, no. 53541/07, § 47, 11 June 2009; and A.A. v. Greece, no. 12186/08, § 55, 22 July 2010).", "When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005; and Aden Ahmed v. Malta, no. 55352/12, § 86, 23 July 2013).", "72. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others, cited above, §§ 143‑48). Whereas the provision of four square metres of living space remains the acceptable minimum standard of multi-occupancy accommodation (see Hagyó v. Hungary, no. 52624/10, § 45, 23 April 2013), the Court has found that where an applicant has less than three square metres of floor surface at his or her disposal, the overcrowding must be considered to be so severe as to justify in itself a finding of a violation of Article 3 (see Tunis v. Estonia, no.", "429/12, § 44, 19 December 2013, and the cases cited therein). The Court also takes into account the space occupied by the furniture items in the living area in reviewing complaints of overcrowding (see Petrenko v. Russia, no. 30112/04, § 39, 20 January 2011; and Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011). 73.", "The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Ananyev and Others, cited above, § 149 et seq. for further details, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011).", "The Court notes in particular that the Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out-of-cell activities (see Ananyev and Others, cited above, § 150). (β) Application of the above principles in the present case 74. The Court notes that the parties have contested many aspects of the applicant’s detention conditions at the Kumkapı Removal Centre, including the total capacity of the centre, the number of dormitory rooms allocated to male detainees, the size of those rooms, the opportunities for outdoor exercise and recreational activities, the quality of the food provided and the hygiene of the premises. However, the Court does not consider it necessary to resolve the conflicting submissions of the parties, as it can establish a violation of Article 3 on the basis of the pertinent facts that have been presented, or are undisputed, by the respondent Government. 75.", "The Court notes in this connection that the Government submitted no information on the size of the room where the applicant was held or on the number of persons accommodated in that room. They only provided general information on the number of rooms allocated to male detainees; the number of beds in each room, which apparently varied between fifteen and twenty; the respective sizes of those rooms; and the number of occupants per floor on various dates during the period of the applicant’s detention, without however mentioning on which floor the applicant was held (see paragraphs 18‑20 above for the Government’s submissions). 76. In view of the limited nature of the information provided by the Government, it is not possible to establish with any certainty the personal space available to the applicant in the room. In these circumstances, the Court has no option but to make an approximate assessment of floor space per detainee, by dividing the total area of the rooms allocated to the male detainees (674 sq.", "m) by the total number of those detainees. Accordingly, having regard to the numbers provided by the Government, even on 28 February 2011, when the male detainee population was at its lowest (a total of 156 as indicated in the chart in paragraph 20 above), the personal space per male detainee was approximately 4.32 sq. m, which is marginally higher than the recommended minimum area of 4 sq. m. The Court notes that the floor area per detainee dropped as low as 3.58 sq. m on 1 March 2011, when the total number of male detainees recorded by the Government increased to 188.", "In the light of those figures, which in reality should be significantly lower in view of the fixtures in the rooms, it is reasonable to consider that the applicant did not have sufficient personal space in his dormitory room even on the basis of the more favourable data provided by the Government. 77. This finding also coincides with the earlier observations of the CPT regarding the problem of overcrowding at the Kumkapı Removal Centre, which provide a reliable basis for the Court’s assessment (see Kehayov v. Bulgaria, no. 41035/98, § 66, 18 January 2005). While the Court does not rule out the possibility that improvements were made between the CPT’s visit in June 2009 and the applicant’s detention from November 2010 to April 2011 – such as the reduction of the centre’s official capacity – the subsequent visits of the members of the Grand National Assembly of Turkey and the UN Special Rapporteur on the human rights of migrants in May and June 2012 respectively also corroborate the evidence of a problem of overcrowding at the removal centre in question (see paragraphs 25 and 30 above).", "In particular, the number of male detainees reported by the MPs, which was 297 on the day of the scheduled visit, shows that the personal space per male detainee at the relevant time was only 2.27 sq. m, which in itself would lead to a violation of Article 3. 78. Moreover, while scarce space in relative terms may in some circumstances be compensated for by the freedom to spend time away from the dormitory rooms (see Valašinas v. Lithuania, no. 44558/98, § 103 and 107, ECHR 2001‑VIII; and Nurmagomedov v. Russia (dec.), no.", "30138/02, 16 September 2004), the Court considers that the applicant did not enjoy sufficient freedom of movement either. The Court notes first and foremost, and with grave concern, the applicant’s allegation that he was not allowed to step outside the building even once during the entire period of his detention, that is, for approximately six months. While the Government indicated by way of response that detainees were authorised to go outdoors “in appropriate weather conditions”, they did not state whether the applicant had benefited from that right or how often such authorisation was granted. In any event, access to outdoor exercise is a fundamental component of the protection afforded to persons deprived of their liberty under Article 3 and as such it cannot be left to the discretion of the authorities; according to the CPT, all detainees, even those confined to their cells as a punishment, have a right to at least one hour of exercise in the open air every day regardless of how good the material conditions might be in their cells (see the CPT standards, document no. CPT/Inf/E (2002) 1‑Rev.", "2013, § 48). This, however, was clearly not the case at the Kumkapı Removal Centre at the relevant time, as also reported by the CPT, the UN Special Rapporteur and the delegation of Turkish MPs (see paragraphs 28, 30 and 26 above, respectively). Bearing in mind the purpose of detention of individuals pending deportation, the Court notes furthermore that certain aspects of the conditions in which the applicant was detained were even stricter than the Turkish prison regime for prisoners serving a life sentence (see X v. Turkey, no. 24626/09, §§ 25 and 26, 9 October 2012 for the relevant domestic-law provisions governing the Prison Service and execution of sentences). 79.", "It further appears that the applicant did not benefit from freedom of movement or recreational activities indoors either. In this regard the applicant alleged, and the Government did not dispute, that the cafeterias on each floor, which were apparently the only communal areas available to the detainees at the material time, were only accessible during meal times and even then were acutely inadequate – in view of their small size (69 sq. m). – to accommodate the detainees on each floor. In these circumstances, the applicant was effectively confined to his overcrowded dormitory room with no furniture other than beds and lockers for months on end.", "Moreover, the applicant alleged, and the Government did not deny, that the limited sports equipment observed in the photos submitted by the Government was not available at the time of his detention. 80. The Court considers that the above findings, coupled with the length of the applicant’s unlawful detention and the possible feelings of anxiety that its indefinite term may have caused, are sufficient to conclude that the conditions of his detention caused the applicant distress which exceeded the unavoidable level of suffering inherent in detention and attained the threshold of degrading treatment proscribed by Article 3. It is therefore not necessary to examine the applicant’s remaining allegations regarding the conditions of his detention. The Court nevertheless wishes to stress that although there is no conclusive proof that the applicant contracted tuberculosis during his detention at the Kumkapı Removal Centre, overcrowding, coupled with the absence of regular exercise and lack of hygiene in places of detention, may lead to the spread of contagious diseases which the national authorities have a duty to prevent, as the CPT has indicated time and again (see, for instance, paragraph 27 above).", "81. In the light of the foregoing, there has been a violation of Article 3 of the Convention on account of the material conditions in which the applicant was detained in the Kumkapı Removal Centre. B. Medical assistance 82. The Government submitted that the applicant had failed to exhaust the domestic remedies available to him in relation to this complaint as the authorities had not been informed of his health problems until they received his lawyer’s letter of 21 April 2011.", "Moreover, the letter in question was posted, and not even faxed, to the Ministry of the Interior, rather than being sent directly to the authorities of the removal centre or to the Istanbul Security Directorate, both of which would have been in a position to provide the applicant with immediate medical assistance. The Government further indicated that a doctor was available at the removal centre on a weekly basis. 83. The applicant maintained his complaints and contended that both he and his lawyer had claimed medical assistance repeatedly. He also claimed that he had not been informed of the regular presence of a doctor on the premises.", "84. The Court reiterates that Article 3 requires that the health and well‑being of detained persons should be adequately secured by, among other things, providing them with the requisite medical assistance (see, mutatis mutandis, Kudła, cited above, § 94). However, without prejudice to its findings in paragraphs 80 and 81 above regarding the material conditions at the removal centre which may have favoured the spread of infectious diseases, the Court is not persuaded that the applicant exhausted the available remedies in relation to this particular complaint. 85. The Court observes at the outset that the applicant alleged in very general terms that he had suffered from flu-like symptoms during the last three or four months of his detention, without specifying what those symptoms entailed.", "The Court gathers, however, from the medical report issued by a private clinic the day after the applicant’s release that the symptoms manifested themselves as fatigue and coughing at the relevant time, which are not particularly alarming as such. Therefore, in the absence of any evidence that the applicant’s medical condition was so serious as to oblige the authorities to offer him treatment on their own initiative, the onus was on the applicant to bring his health problems to the attention of the competent authorities and to seek medical assistance. However, contrary to his allegations, there is no evidence in the case file that the authorities of the removal centre had been duly alerted to his grievances either by the applicant himself or by his legal representatives whom he had met on at least two occasions during the final three months of his detention when he was allegedly ill (17 February and 13 April 2011). 86. The Court observes in this connection that while there is no record of the applicant’s first meeting with his legal representative on 17 February 2011, it is clear that he informed his lawyer during the later meeting on 13 April 2011 that he had been suffering from what he thought was flu for the past few months.", "However, according to the lawyer’s meeting notes, the applicant did not indicate, or even imply, that he had actually discussed his health issues with the authorities of the removal centre, nor did he accuse the authorities of deliberately denying him medical assistance despite his requests. 87. The doubts regarding the applicant’s inaction are reinforced by the fact that at the end of their meeting on 13 April 2011 the lawyer simply advised the applicant to speak to the authorities of the removal centre about his health issues. The Court considers that had the applicant’s pleas for medical treatment been repeatedly ignored as alleged, or had his condition visibly called for immediate medical assistance, his lawyer could reasonably have been expected to file an official request with the authorities of the removal centre immediately after their meeting so as to ensure the provision of medical assistance without any further delay. 88.", "The Court notes that the applicant’s lawyer instead waited until 21 April 2011 before taking any action on the matter. On that date he sent a letter to the Ministry of the Interior mainly asking for the termination of the applicant’s unlawful detention and also requesting, in one brief sentence, the treatment of the applicant’s “persistent flu”. It appears that the letter in question, which reached the Ministry three days after the applicant’s release from detention, was the first and only instance when the applicant’s grievances were brought to the authorities’ attention and that this offered no prospects of immediate intervention. Moreover, the Court cannot overlook the fact that nothing in the letter suggested that any earlier attempts by the applicant to seek medical assistance had been ignored. 89.", "Having regard to the foregoing, the Court is led to conclude that the applicant did not take the necessary steps to alert the competent authorities to his health problems during the course of his detention (see, mutatis mutandis, Ildani v. Georgia, no. 65391/09, § 29, 23 April 2013). Nor did he pursue this issue before the relevant authorities and/or courts following his release from detention or his subsequent diagnosis with tuberculosis. 90. In these circumstances, while acknowledging the seriousness of the applicant’s diagnosis, the Court is of the opinion that he has failed to establish that he exhausted all avenues available to him regarding his medical needs.", "It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. 91. The applicant’s corresponding complaint under Article 13 is likewise inadmissible, as the Court has already found that there were available remedies in the present context which the applicant was expected to exhaust. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 92. The applicant did not submit a claim for compensation for pecuniary damage. As regards non‑pecuniary damage, he claimed 40,000 euros (EUR) in view of the breach of his Convention rights. 93.", "The Government contested that claim as excessive. 94. The Court considers that the applicant must have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of violations. Having regard to the seriousness of the violations in question and to equitable considerations, it awards the applicant EUR 10,000 under this head. B.", "Costs and expenses 95. The applicant also claimed EUR 3,422 for lawyer’s fees and EUR 575 for other costs and expenses incurred before the Court, such as travel expenses, stationery, photocopying, translation and postage. In that connection, he submitted a time sheet showing that his legal representatives had carried out twenty-nine hours’ legal work, a legal services agreement concluded with his representatives, and invoices for the remaining costs and expenses. 96. The Government contested those claims, deeming them unsubstantiated.", "97. 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 requested in full (EUR 3,997) covering costs under all heads. C. Default interest 98. 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 the Government’s objection as to the non-exhaustion of domestic remedies in relation to the adverse material conditions of detention at the Kumkapı Removal Centre to the merits of the complaint under Article 13 of the Convention and dismisses it; 2. Declares the complaints under Article 5 §§ 1, 2, 4 and 5 of the Convention (regarding the applicant’s right to liberty), and the complaints under Articles 3 and 13 of the Convention (regarding the material conditions of his detention at the Kumkapı Removal Centre as well as the lack of effective remedies to raise his allegations concerning those conditions) admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 5 §§ 1, 2, 4 and 5 of the Convention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the material conditions of the applicant’s detention at the Kumkapı Removal Centre; 5.", "Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 on account of the absence of effective remedies to complain about the material conditions of detention at the Kumkapı Removal Centre; 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,997 (three thousand nine hundred and ninety-seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposGuido Raimondi Deputy RegistrarPresident [1]1.", "Page 25 at http://www.amnesty.org/en/library/asset/EUR44/001/2009/en/0f217291-cae8-4093-bda9-485588e245d8/eur440012009en.pdf." ]
[ "SECOND SECTION CASE OF KLYAKHIN v. RUSSIA (Application no. 46082/99) JUDGMENT STRASBOURG 30 November 2004 FINAL 06/06/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Klyakhin v. Russia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrI.", "Cabral Barreto,MrK. Jungwiert,MrV. Butkevych,MrA. Kovler,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 14 October 2003 and 9 November 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 46082/99) against the Russian Federation 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 Russian national, Mr Konstantin Vladimirovich Klyakhin (“the applicant”), on 24 July 1998. 2. The applicant was represented by Mr Kirill Koroteyev, Mrs Dina Vedernikova and Mr William Bowring, lawyers of EHRAC/Memorial, a Human Rights non-governmental organisation based in Moscow and London. The Russian Government (“the Government”) were represented by Mr P.A.", "Laptev, the Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his pre-trial detention had been unreasonably long, contrary to Article 5 § 3, and that he had been unable to obtain judicial review of his detention pending trial, contrary to Article 5 § 4 of the Convention. He also alleged that the criminal charge against him had not been determined within a reasonable time, in violation of the provisions of Article 6 § 1. Referring to Articles 8 and 13, the applicant submitted that the prison authorities had monitored his correspondence with the European Court and that no domestic remedies were available to him in this respect.", "He also claimed that his correspondence with the European Court had been hindered by the prison authorities, contrary to the provisions of Article 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 Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 14 October 2003 the Court declared the application partly admissible.", "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). 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, Konstantin Vladimirovich Klyakhin, is a Russian national, who was born in 1966 and lives in Armavir, Krasnodar Region, in Russia. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows.", "1. Detention on remand and criminal proceedings against the applicant 10. On 13 August 1997 the applicant was detained and intimidated by a group of people, allegedly because they wanted him to testify against his relative K., an official in the Armavir Town Prosecutor's office. 11. On 26 August 1997 the applicant was arrested on suspicion of involvement in a robbery, together with K. and a third person, U.", "The accusations against the applicant were made by the people who had allegedly intimidated him. 12. From 26 to 29 August 1997 the applicant was interviewed several times by an investigator from the prosecution service, sometimes in the presence of the Armavir Town Prosecutor. A lawyer was appointed, but the applicant refused to accept his services as he did not trust him. 13.", "On 29 August 1997 the Armavir Town Prosecutor authorised the applicant's detention on suspicion of theft. On 5 September 1997 the applicant was officially charged with involvement in a robbery. 14. The applicant appealed against the decision to detain him on 11 September 1997. On 6 October 1997 the Armavir Town Court rejected his complaint without giving any reasons.", "15. The investigation was completed on 24 January 1998 and the applicant was given access to the case file between 24 and 27 January 1998. A lawyer, whom the applicant later dismissed, was present at this stage. The indictment was sent to the Armavir Town Court on 27 or 28 January 1998. 16.", "On 26 January 1998 the case file was transferred to the Armavir Town Court. After that date all complaints and requests submitted by the applicant to other authorities were forwarded to that court, in accordance with Section 217 of the Code of Criminal Procedure (CCP). 17. On 16 February 1998 the Armavir Town Court scheduled the first hearing for 4 March 1998. The judge ordered the continued detention of the applicant and two other co-accused, K. and U., without giving reasons.", "18. On 4 March 1998 a judge of the Town Court adjourned the case because the applicant had not had sufficient access to the case file. Between 19 February and 27 March 1998 the applicant was allowed additional access to the case file and was officially served with the indictment. The applicant submits that he was allowed only short periods over several days to review about 600 pages of documentation in the case file. He also submits that he was handcuffed while accessing it, and had difficulties copying the relevant documents.", "19. The scheduled court hearing on 20 April 1998 did not take place, due to the absence of the victims and one of the representatives. On 22 April 1998 the judge ordered a psychiatric report on U. and adjourned the hearing. 20. It appears that further hearings were scheduled, but were adjourned or cancelled on 31 August 1998, 30 September 1998, 5 January 1999 and 20 January 1999.", "21. The European Convention on Human Rights entered into force in respect of Russia on 5 May 1998. 22. On 30 September 1998 the Armavir Town Court rejected requests by the applicant and his co-accused K. for release from detention, and stated that “at this stage of proceedings their release could influence further trial hearings”. On 11 November 1998 the Krasnodar Regional Court rejected an appeal by K. against this order.", "23. On 21 January 1999 the case was adjourned due to the illness of U. By the same decision, the applicant's further detention on remand was confirmed. On 25 January 1999 the applicant complained to the Armavir Town Prosecutor about his continued detention on remand. On 5 March 1999 he was informed that his detention was lawful and that he could challenge it before the Town Court.", "24. The trial resumed on 29 March 1999 and on 6 April 1999 the Armavir Town Court returned the case to the prosecutor's office for an additional investigation. 25. On 8 and 16 April 1999 the applicant lodged complaints with the President of the Armavir Town Court in respect of his detention on remand. No response was received to those complaints.", "26. On 27 April 1999 the Armavir Town Prosecutor appealed against the order of 5 March 1999, by which the case had been sent for additional investigation. On 16 June 1999 the Krasnodar Regional Court quashed that order and instructed the Town Court to consider the case on the merits. The Regional Court also ordered the continued detention of the applicant and his co-accused, K. and U., without giving reasons. 27.", "On 4 August 1999 the hearings resumed, and on 16 August 1999 the applicant was convicted of robbery and sentenced by the Armavir Town Court to five years' imprisonment. He was represented by a lawyer. The applicant appealed, and on 20 October 1999 the Krasnodar Regional Court upheld the Town Court's judgment. The applicant was not present at the appeal hearing and was informed of its outcome on 12 November 1999. The conviction of 16 August 1999 subsequently entered into force and the applicant was sent to a detention centre to serve his sentence.", "28. On 2 December 1999 the Presidium of the Krasnodar Regional Court, acting by way of supervisory review of a request lodged by the Chairman of the Krasnodar Regional Court, quashed the conviction of 16 August 1999 (as confirmed on 20 October 1999) for procedural irregularities and remitted the case to the first instance court. 29. The case file was returned to the Armavir Town Court on 20 December 1999. On 30 December 1999 the applicant was returned to the Armavir town detention centre (СИЗО 18/2).", "A judge was appointed to hear the case on 23 March 2000. 30. On 17 April 2000 the hearing opened, and on 18 April the Armavir Town Court ordered a medical examination of the applicant in a psychiatric hospital. The report was required because of the applicant's “strange behaviour which raised doubts about his mental health”. The behaviour manifested itself in an “inadequate reaction to questions, [and] the constant submission of fictitious and ill-founded requests”.", "The applicant was not given a copy of that order for several months. He appealed against that decision and his continued detention on remand to the Armavir Town Court on 19, 24 and 25 April 2000, as well as on 12, 23 and 25 May 2000, but received no reply. He also appealed to the Armavir Town Prosecutor on 25 April 2000 and to the Krasnodar Regional Prosecutor's Office on 21 April 2000. Both replied that his complaints had been forwarded to the Armavir Town Court. The Government submitted that these complaints concerned the actions of the trial court judge and did not raise issues concerning the lawfulness of detention.", "31. The case file was transferred to the Krasnodar psychiatric hospital on 3 May 2000. On 28 June 2000 the file was returned to the Town Court, no report having been prepared. On 20 July 2000 the judge of the Town Court adjourned the case pending another report on an out-patient basis. The applicant announced in the court room that he would begin a hunger strike, which apparently lasted until 30 July 2000.", "He alleged that the judge presiding in the case was not impartial, and that he had made threats against the applicant's relatives. 32. The applicant appealed against the order for a psychiatric report to the Armavir Town and Krasnodar Regional Prosecutors, to the Regional Court, to the Krasnodar Qualification Board of Judges and other administrative bodies. On 9 and 24 August 2000 the Qualification Board forwarded the applicant's complaints to the Armavir Town Court. On 28 September 2000 the Regional Court informed the applicant that his complaint had been forwarded to the Town Court, which was to forward the case file for an appeal hearing before the Regional Court.", "No hearing took place. 33. On 29 September 2000 the Chairman of the Armavir Town Court replied to the applicant and to the Krasnodar Qualification Board that no violations of the domestic law had been committed in the handling of the case. He dismissed the applicant's allegations that the presiding judge had threatened his relatives as “fictitious and ill-founded”. The letter concluded that there were no reasons to question the impartiality and qualifications of the presiding judge.", "34. On 9 October 2000 a medical commission examined the applicant in the detention centre and found him to be of sound mind. 35. Between February and December 2000, the applicant submitted nine requests to the Armavir Town Court for additional access to the case file. His request was granted for a period from 8 to 15 December 2000, when he was allowed to have access to and make hand-written copies of relevant documents.", "The applicant submits that he was allowed about one and a half hours to consider the case file of some 500 pages. 36. On 18 December 2000 the case was adjourned. On 21 December 2000 the applicant appealed against the adjournment to the Krasnodar Regional Court, but his appeal was not examined. 37.", "On 23 January 2001 the hearing in the Armavir Town Court resumed and on 9 February 2001 the applicant was convicted of attempted robbery and sentenced to four years' imprisonment. The applicant did not appeal against the conviction, which entered into force ten days later. The applicant was released from detention on 9 February 2001, as he had by that time spent three years, five months and 13 days in detention and was granted an amnesty. The two co-accused, K. and U., were also sentenced to prison terms, but did not have to serve their sentences as they also benefited from an amnesty. 2.", "Correspondence with the Court 38. The applicant claimed that in June 1998 the administration of SIZO - 18/2, where he had been detained on remand, refused to forward his application to the Court. The applicant forwarded the letter through his relatives, who posted it on 24 July 1998. 39. The explanatory notice attached to the Court Registry's letter of 14 August 1998 was not given to the applicant.", "40. The applicant further claims that on 25 March 1999 he forwarded a letter, with enclosures, to the Court, and that this letter never arrived. On 10 June 1999 the applicant sent the letter again via his mother. 41. A letter from the applicant to the Court dated 8 June 2000 was posted on 20 October 2000.", "The applicant lists a number of enclosures to that letter, none of which arrived. The applicant sent them again on 29 December 2000 through his relatives. 42. The applicant was not permitted by the prison administration to retain the correspondence from the Court, which was given to him for a day and then taken away. 43.", "The Government submitted that the applicant sent two letters addressed to the European Court while in prison - on 8 June 2000 and on 5 January 2001. Both were posted promptly by the prison authorities, and proof of posting exists. The applicant received three letters from the Court in response, dated 8 September 1998, 9 August 1999 and 11 January 2000, all of which were transmitted to him immediately in their entirety upon receipt. As proof, the Government submitted a copy of the correspondence log maintained by the prison authorities which confirmed the applicant's receipt of the Court's three letters. 44.", "According to the Government, in December 2003 the national legislation was amended to end censorship of correspondence with the European Court of Human Rights in detention centres. 45. It also appears that in December 2000 the applicant attempted to sue the postal service for failure to deliver his letter of 8 June 2000 to the European Court. On 16 January 2001 the Armavir Town Court refused to consider the merits of his claim for pecuniary and non-pecuniary damages against the Armavir postal service. On 15 March 2001 the Krasnodar Regional Court quashed and remitted the decision of 16 January 2001.", "It further appears that on 11 May 2001 the Armavir Town Court rejected the applicant's claim on the merits, and the applicant did not appeal against that judgment. B. Relevant domestic law and practice 46. The Code of Criminal Procedure (CCP), in force at the relevant time, provided in Article 96 that custody could be imposed as a measure of restraint for offences punishable by imprisonment of more than one year. 47.", "The CCP provided in Article 217 that, after the investigation had been completed, the prosecutor should approve the bill of indictment and forward the case to the court. Thereafter, all complaints and requests should be forwarded directly to the trial court. 48. Under Articles 220-1 and 220-2 of the CCP, an appeal against an order extending a period of detention lay with a court. 49.", "Articles 223-1 and 230 of the CCP provided that, when the accused was in detention, the judge should set the date for the first hearing within 15 days of receiving the case file from the prosecutor. At the same time, the judge should also decide whether the accused should be remanded in custody. 50. Article 331 of the CCP excluded appeals against certain orders (определения и постановления) of the trial court, such as setting dates for the hearing, forwarding the case for additional investigation, or requesting an in-patient psychiatric report. This Section was found unconstitutional by the Constitutional Court on 2 July 1998, to the extent that it prevented persons in detention from appealing against court orders which had the effect of extending their detention.", "51. Articles 17 and 21 of the Federal Law of 15 July 1995 No. 103-FZ “On pre-trial detention” provides that detainees have an unlimited right to submit complaints and letters to governmental and non-governmental bodies. Complaints addressed to the prosecutor, courts and other authorities charged with supervising the legality of detention are not subject to censorship and should be forwarded to the addressee in a sealed envelope. Other letters and complaints are subject to censorship by the administration and are to be forwarded by it within three days of their submission.", "Any decision by the administration of a detention centre may be appealed in the hierarchical order to a prosecutor and a court. Similar provisions are contained in Section 9 of the Internal Rules of pre-trial detention centres, dated 1995 and 2000 (Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства внутренних дел Российской Федерации, утв. приказом МВД РФ от 20 декабря 1995 г. N 486; Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской Федерации, утв. приказом Минюста РФ от 12 мая 2000 г. N 148, с изменениями от 21 февраля 2002 г.). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 52. The applicant complained that his right to be tried within a reasonable time or to be released from detention pending trial was violated. He referred to Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Arguments of the parties 53.", "The Government submitted that the period of the applicant's detention on remand was not unreasonable and that it was in accordance with the national legislation. The Government also submitted that the period of the applicant's detention prior to 5 May 1998 was outside the Court's competence ratione temporis. 54. As to the reasons for the applicant's detention, the Government referred to the provisions in the domestic legislation then in force, by which detention on remand could have been applied solely on the grounds of the gravity of the charges. They also referred to the fact that the applicant had previous convictions.", "55. The applicant submitted that it had been unnecessary to take him into custody and keep him in detention for an extensive period of time, as there was no indication that he was trying to obstruct the establishment of the truth or that his detention served to prevent his committing an offence or fleeing after having done so. The authorities had produced few relevant or sufficient reasons to justify his detention. As to the authorities' conduct, the applicant asserted that they had shown no special diligence in handling his case. 56.", "The applicant also reiterated that while the period prior to 5 May 1998 was outside the Court's jurisdiction ratione temporis, he asked the Court to take into account the fact that by that date he had already been in custody for over eight months. B. The Court's assessment 1. Period to be taken into consideration 57. The Court first recalls that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among other authorities, the (see Wemhoff v. Germany judgment of 27 June 1968, Series A no.", "7, p. 23, § 9, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV). 58. The Court recalls that while its jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Russia on 5 May 1998, the Court will take into account the state of proceedings existing on the material date (see, among other authorities, mutatis mutandis, the Yağci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40).", "59. In the present case the applicant's detention on remand began on 26 August 1997, when he was arrested. On 5 May 1998, the date on which the Convention entered into force for Russia, the applicant had been detained on remand for eight months and ten days. He was then convicted at first instance on 16 August 1999, i.e. after a period of some 15 months.", "From then until the supervisory court's decision on 2 December 1999, the applicant's detention was justified under Article 5 § 1(a) of the Convention and Article 5 § 3 was not applicable. On 2 December 1999 the Presidium of the Krasnodar Regional Court returned the case to the first instance court, whereupon Article 5 §§ 1(c) and 3 of the Convention became applicable once again. It ceased to be applicable on 9 February 2001 14 months later, when the applicant was convicted by the Armavir Town Court and released from detention. The applicant was thus detained on remand for a total period of some three years and two months, of which two years, five months and ten days were after the entry into force of the Convention in respect of Russia. 2.", "The reasonableness of the length of detention 60. The Court recalls that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. This must be assessed in each case according to its special features, the reasons given in the domestic decisions and the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30; Labita v. Italy [GC], cited above, § 152).", "61. 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, among others, I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2979, § 102; Labita v. Italy [GC], cited above, § 153).", "62. In their observations on the merits, the Government pointed to the provisions of the domestic legislation, namely to Article 96 of the CCP, which permitted detention on remand in cases where charges could entail a sentence of longer than one year's imprisonment. 63. On 30 September 1998 the Armavir Town Court stated in its decision prolonging the applicant's detention that “at this stage of proceedings [his] release could influence further trial hearings”. By that time the investigation into the criminal case had already been completed and the case was pending before the trial court.", "Other decisions authorising the applicant's further detention provided no reasons for his detention, merely confirming that the detention was lawful. 64. It thus appears that the relevant authorities based the applicant's detention on two grounds – firstly, the gravity of the charges, and secondly, the fear that he might obstruct the trial proceedings. 65. As to the first point, the Court reiterates that while the severity of the sentence faced is a relevant element, the gravity of the charges cannot in itself serve to justify long periods of pre-trial detention.", "As to the second ground, no factual circumstances were invoked by the domestic courts to uphold the conclusion regarding the applicant's possible interference with due process, especially at the trial stage of proceedings. 66. The Court accordingly concludes that, by failing to address relevant facts and by relying on a statutory provision relating to the gravity of the charges, the authorities prolonged the applicant's detention on grounds which cannot be regarded as sufficient. 67. The Court thus finds that the authorities failed to justify the applicant's continued detention for the period under consideration.", "In those circumstances it is not necessary to examine whether the proceedings were conducted with due diligence. 68. There has accordingly been a violation of Article 5 § 3 of the Convention in that the applicant's right to trial within a reasonable time or to release pending trial was not respected. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 69.", "Under Article 5 § 4 of the Convention, the applicant complained that he could not obtain judicial review of his detention. Article 5 § 4 of the Convention reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Arguments of the parties 70. The Government submitted that domestic law, namely Article 220-1 of the Code of Criminal Procedure of 1960, had provided the applicant with a right to seek judicial review of his detention. The applicant made use of this right by applying to the Armavir Town Court, which reviewed his detention and found it lawful.", "His subsequent complaints about the lawfulness of his detention were also subject to judicial review. 71. The applicant pointed out that his complaints against the lawfulness of his detention had been reviewed by the Armavir Town Court only on 6 October 1997, and subsequently on 30 September 1998. His numerous other appeals to the authorities, including those to the Town and Regional Courts, were not properly examined. The courts failed to indicate the reasons for his continued detention and he was not provided with the procedural guarantees necessary for the proper application of the principles of Article 5 § 4.", "B. The Court's assessment 72. The Court recalls that, by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 154-B, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation (see the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, p. 42, § 78 in fine; the Megyeri v. Germany judgment of 12 May 1992, Series A no.", "237-A, p. 11, § 22; Niedbała v. Poland, no. 27915/95, § 66, 4 July 2000), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. It is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see the De Wilde, Ooms and Versyp v. Belgium judgment, p. 41, § 76; the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no.33, p. 24, § 60; and Sanchez-Reisse v. Switzerland, judgment of 21 October 1986, Series A no. 107, p. 20, § 51). 73.", "In the present case, pre-trial detention was at the material time imposed by a prosecutor's warrant. An appeal against a detention order lay with the courts. 74. The applicant submitted a number of complaints to the trial court and to higher courts about his prolonged pre-trial detention. However, the review which did take place failed to address the specific arguments advanced by the applicant as regards the reasons for his detention.", "His other complaints simply went unanswered. 75. The Court reiterates that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court must examine not only compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Brogan and Others v. the United Kingdom, cited above, § 65, and Grauslys v. Lithuania, no. 36743/97, §§ 51-55, 10 October 2000).", "76. Whilst Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in the detainee's submissions, the judge examining remand appeals must take into account concrete facts which are referred to by the detainee and capable of casting doubt on the existence of those conditions essential for the “lawfulness”, for Convention purposes, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999‑II). 77. The applicant's submissions contained such facts and did not appear implausible or frivolous.", "By not taking them into account, the domestic courts failed to provide a judicial review of the scope and nature required by Article 5 § 4 of the Convention. The Court recalls, in this respect, its relevant findings about the lack of sufficient grounds for detention, made above (paragraphs 66-68) when examining the reasonableness of the grounds for detention. 78. In addition, the applicant's other complaints, specifically addressing the issue of his continued pre-trial detention, remained unanswered (paragraphs 25 and 30 above). 79.", "There has therefore been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 80. The applicant complained under Article 6 § 1 of the Convention that the criminal charges against him had not been determined within a reasonable time. 81.", "In so far as relevant, the first sentence of Article 6 § 1 reads: “In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...” A. Arguments of the parties 82. The Government submitted that the period to be considered had lasted from the transmission of the applicant's case to the Armavir Town Court on 2 February 1998 until the pronouncement of its judgment on 9 February 2001. The Government disputed that this time had been unreasonable. They submitted that during this period the case had been reviewed by three judicial instances, including the Town Court on two occasions.", "They also maintained that the applicant had contributed to the length of the proceedings by filing multiple applications, including requests for access to the case file, which required adjournments of the hearing. 83. The Government referred to the illness of one of the co-accused, which had caused a delay in the proceedings. Following the decision by the Presidium of the Krasnodar Regional Court of 2 December 1999 to quash the applicant's conviction and remit the case, a further delay in the proceedings was caused by the fact that the applicant and his co-accused had to be brought back to Armavir from correctional facilities in other regions. 84.", "The applicant submitted that the period to be taken into account began on 16 February 1998, when the Town Court accepted the case for consideration and fixed a hearing date, and ended on 9 February 2001. 85. As regards his conduct, the applicant submitted that his complaints and requests were justified by the need to familiarise himself with the case file and to defend himself. He pointed out that his requests for access to the case file had been granted by the Town Court on two occasions, albeit after considerable delays. This in itself indicated that his right to have full access to the case file before the start of the hearing had been violated.", "86. As to the authorities' conduct, the applicant pointed out that his access to the case file had been strictly regulated by the authorities and that it was beyond his control to complete its examination any faster. He also submitted that other reasons, such as the failure of other participants to appear at the hearing, could not be attributed to him. B. The Court's assessment 1.", "Period to be taken into consideration 87. The Court recalls that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term (see, among other authorities, the Corigliano v. Italy judgment of 10 December 1982, Series A no. 57, p. 13, § 34, and the Imbriosca v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It ends with the day on which a charge is finally determined or the proceedings are discontinued.", "88. The Court also recalls that while its jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Russia on 5 May 1998, the Court will take into account the state of proceedings existing on the material date (see, among other authorities, mutatis mutandis, the Yağci and Sargin v. Turkey, cited above, § 40). 89. The period under consideration in the present case began on 26 August 1997, when the applicant was detained as a suspect on charges of robbery. Then, on 16 August 1999, the Armavir Town Court convicted the applicant, and on 20 October 1999 the Krasnodar Regional Court upheld the conviction.", "The normal procedure for determining the criminal charge against the applicant, within the meaning of Article 6 of the Convention, was thus completed, having lasted two years and two months, of which some eight months and ten days were prior to the entry into force of the Convention in respect of Russia. 90. However, on 2 December 1999 the Presidium of the Krasnodar Regional Court, using the extraordinary procedure of supervisory review, quashed and remitted the judgments in respect of the applicant. That decision thus led to a resumption of the determination of the criminal charge against the applicant, and Article 6 became applicable once more (see Yemanakova v. Russia, no. 60408/00, § 41, 2 September 2004).", "The period to be considered ended on 9 February 2001, when the Armavir Town Court delivered its judgment determining the charge against the applicant. This period lasted for about one year and two months. 91. The Court observes that the period under consideration, i.e. from 29 August 1997 to 9 February 2001, excluding the period between 20 October and 2 December 1999 when no proceedings were pending, lasted about three years and four months, of which two years and seven and a half months fall within the Court's jurisdiction ratione temporis.", "2. Reasonableness of the length of the proceedings 92. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see the aforementioned Yağci and Sargin v. Turkey, § 59). 93. The Court notes that the criminal case does not appear particularly complex.", "It concerned one episode of attempted robbery and involved a small number of victims and witnesses. As regards the conduct of the applicant, it does not appear that he contributed to the overall length of the proceedings to any significant extent. Although he submitted a number of motions and requests, most of them did not entail any procedural delays. His requests to familiarise himself with the case file were twice granted by the trial court, albeit after considerable delays which cannot be attributed to the applicant. 94.", "As regards the conduct of the authorities, it appears that there were certain lapses of time attributable to them. In particular, no hearings, except for adjournments, took place between 22 April 1998 and 29 March 1999. Following the decision by the Presidium of the Krasnodar Regional Court on 2 December 1999 to quash and remit the earlier convictions, the first hearing in the trial court took place only on 17 April 2000. In the meantime, the applicant remained in detention, which should have prompted the authorities to act with special diligence. 95.", "Having regard to the criteria established in its case-law for the assessment of the reasonableness of the length of proceedings, the above conclusions regarding the reasonableness of the pre-trial detention under Article 5 § 3 and the particular circumstances of the case, the Court finds that the length of the criminal proceedings against the applicant failed to satisfy the reasonable time requirement of Article 6 § 1 of the Convention. 96. It follows that there has been a violation of that provision. IV. ALLEGED VIOLATION OF ARTICLE 13 COMBINED WITH ARTICLE 6 § 1 OF THE CONVENTION 97.", "The applicant complains under Article 13 that he had no effective remedies in respect of the excessive length of the criminal proceedings. Article 13 of the Convention, insofar as relevant, provides: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 98. As to pertinent remedies, the Government submitted that the applicant could have appealed certain procedural orders by the trial court to a higher court. 99. The applicant submitted that he had had no effective remedies against the excessive length of proceedings in that all his complaints had been forwarded without review to the same trial court which was responsible for the delays.", "His appeals against the trial court's procedural orders had not been examined. 100. 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). 101. The Court notes that the Government have failed to show how the applicant could obtain relief – either preventive or compensatory – by applying to a higher court. It appears that in the present case the Regional Court failed to consider the applicant's challenges against the trial court's orders to adjourn the proceedings of 20 July 2000 and 18 December 2000 (paragraphs 31 and 36 above). His other complaints were forwarded to the same trial court in accordance with Article 217 of the CCP.", "102. The Court thus notes that the Government have failed to indicate any remedy that could have expedited the determination of the applicant's case or provided him with adequate redress for delays that had already occurred. 103. Accordingly, 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. V. ALLEGED VIOLATION OF ARTICLES 8, 13 AND 34 OF THE CONVENTION 104.", "The applicant complained that the prison authorities had interfered with his correspondence with the European Court of Human Rights. He invoked Articles 8, 13 (cited above, paragraph 97) and 34 of the Convention. Articles 8 and 34 read, insofar as relevant, as follows: Article 8 “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 ... for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.” Article 34 “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.” A. Monitoring of the applicant's correspondence by the prison authorities 105. The applicant submitted that his correspondence with the Court had been opened by the prison administration. 106.", "The Government did not dispute the fact that letters sent by the applicant to and received from the European Court of Human Rights were opened by the prison administration. However, they submitted that in December 2003 changes were introduced to the relevant legislation, banning censorship of correspondence with the European Court of Human Rights in pre-trial detention and correctional facilities. 107. The Court recalls that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, the following judgments: Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no.", "233, p. 16, § 34 and Niedbała v. Poland, no. 27915/95, § 78, 4 July 2000). 108. It is not disputed that the applicant's correspondence with the Court was routinely opened and censored. There has thus been an interference with the applicant's right to correspondence within the meaning of Article 8.", "109. The Russian law, as it stood at the material time, allowed for censorship of a prisoner's correspondence, with the exception of correspondence with certain supervisory bodies (paragraph 51 above). The latter did not include the European Court of Human Rights. The interference in the present case thus had a legal basis, and the Court is satisfied that it pursued the legitimate aim of “the prevention of disorder or crime”. However, as regards the necessity of the interference, the Government have not submitted any reasons which could justify this control of correspondence with the Court, the confidentiality of which must be respected (see Peers v. Greece, no.", "28524/95, §§ 82-84, ECHR 2001‑III). Accordingly, the interference complained of was not necessary in a democratic society within the meaning of Article 8 § 2. 110. There has consequently been a violation of Article 8 of the Convention. B.", "Alleged violation of Article 13 combined with Article 8 of the Convention 111. Relying on Article 13, the applicant complained that he had no effective remedies against the monitoring of his correspondence with the Court. 112. The Government did not address this issue in their submissions. 113.", "In the present case the Court has found that the applicant's rights under Article 8 of the Convention were infringed. He therefore had an arguable claim within the meaning of the Court's case-law (cf. paragraph 100 above). 114. However, the Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see James and others v. the United Kingdom, judgment of 21 February 1986, Series A no.", "98, § 85; A. v. the United Kingdom, no. 35373/97, §§ 112-113, ECHR 2002-X). The applicant's complaints related in essence to the provisions of the Law of 15 July 1995 No. 103-FZ “On pre-trial detention” in force at the material time. 115.", "The Court thus concludes that the facts of the present case disclose no violation of Article 13 of the Convention. C. Hindrance with the right of individual petition 116. The applicant submitted that he had written to the European Court of Human Rights on several occasions, starting in 1998. However, the prison administration refused to send his letters and he was forced to send them through his relatives. He submitted that his letter of 8 June 2000 had not been posted until October 2000, and then without its enclosures.", "The applicant also complained about an alleged failure on the part of the authorities to give him incoming letters from the Court promptly and with their enclosures. 117. In their submissions on the merits, the Government contested that there has been any interference with the applicant's right of individual petition. They submitted that the applicant addressed only two complaints to the European Court via the prison authorities - on 8 June 2000 and 5 January 2001 - and that both were forwarded to the Court promptly. His other letters to the Court were forwarded via his relatives, which was his own choice.", "Three replies received from the Court were transmitted to the applicant without any delays or omissions. 118. The Court first reiterates that it is important to respect the confidentiality of its correspondence since it may concern allegations against prison authorities or prison officials. The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned (cf. paragraphs 109-110 above).", "119. The Court recalls that it is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not 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 of the case. In the context of the questioning of applicants about their applications under the Convention by authorities exercising a domestic investigative function, this will depend on whether the procedures adopted have involved a form of illicit and unacceptable pressure which may be regarded as hindering the exercise of the right of individual application (see, e.g.", "the Aydin v. Turkey judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, pp. 1899-1990, §§ 115-117; Salman v. Turkey [GC], no. 21986/93, § 130 with further references, ECHR 2000‑VII). While in the present case there is no allegation of undue pressure, the interception of letters by prison authorities can also hinder applicants in bringing their cases to the Court. 120.", "As to the substance of the complaint, the Government are essentially disputing the validity of the applicant's complaint. The Court notes in this respect that the applicant has consistently complained in his letters to the Court about hindrance of correspondence by the prison authorities. One of his letters, allegedly posted on 25 March 1999 via the detention centre administration, never reached the Court. The Government submitted no comments in this respect. His letter dated 8 June 2000 bore a postmark of 20 October 2000 and contained none of the enclosures listed by the applicant.", "No explanation, nor a copy of any document supporting an earlier date of posting, has been submitted to the Court. 121. The correspondence log, copies of which have been submitted by the Government, refers only to three letters received by the applicant from the Court between 1998 and 2000. At the same time, the Court's record of its correspondence with the applicant, maintained via the prison authorities over the same period, includes at least ten letters, two of which were re-sent as no answer had been received. The Court finds that this discrepancy cannot but raise doubts as to the accuracy of the records used by the Government.", "The Court concludes that no reasonable explanation has been submitted by the Government in response to the applicant's consistent and credible allegations made under Article 34 about the hindrance of his right of individual petition. 122. In addition, the Court notes that the applicant's position was particularly vulnerable as he had been detained and was dependent in his correspondence with the Court - and with the rest of the outside world – on the prison administration (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). He had no representative in the proceedings before the Court prior to its admissibility decision on 14 October 2003.", "123. In the light of the above considerations, the Court concludes that there has been a violation of Article 34 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 125.", "The applicant claimed compensation for the non-pecuniary damage suffered by him and reimbursement of legal costs and expenses. The Government contested these claims. A. Non-pecuniary damage 126. The applicant claimed 10,000 euros (EUR) for non-pecuniary damage. He submitted that the length of his detention on remand, the length of the criminal proceedings against him and the interference with his correspondence with the Court had caused him feelings of frustration, uncertainty and anxiety which could not be compensated solely by the finding of a violation.", "127. The Government submitted that a mere finding of a violation would be sufficient compensation. 128. The Court finds in the present case that it is reasonable to assume that the applicant suffered distress and frustration caused by the unreasonable length of the pre-trial detention and criminal proceedings, as well as by the interference with his correspondence. Deciding on an equitable basis, the Court awards EUR 5,000 under this head.", "B. Costs and expenses 129. The applicant claimed the following costs and expenses: EUR 2,150 for the work of his Moscow-based lawyers (43 hours at the rate of EUR 50 per hour) and 1,100 pounds sterling (GBP) for the work of his London-based representative (11 hours at the rate of GBP 100 per hour). In addition, he claimed EUR 500 for postal expenses. 130.", "The Government found these claims to be excessive and unfounded. 131. The Court recalls that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). 132.", "The Court notes that in the present case the representatives entered the proceedings after the case has been declared admissible, and doubts that the preparation of the applicant's observations on the merits required such extensive work by three lawyers. Nevertheless, the applicant did incur certain expenses for the present proceedings. 133. Deciding on an equitable basis, the Court awards EUR 800 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. Holds that there has been a violation of Article 5 § 3 of the Convention; 2. Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4.", "Holds that there has been a violation of Article 13 combined with Article 6 § 1 of the Convention; 5. Holds that there has been a violation of Article 8 of the Convention; 6. Holds that there has been no violation of Article 13 combined with Article 8 of the Convention; 7. Holds that there has been a violation of Article 34 of the Convention; 8. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State on the date of payment: (i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; (ii) EUR 800 (eight 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; 9.", "Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 30 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]
[ "SECOND SECTION CASE OF MORARI v. THE REPUBLIC OF MOLDOVA (Application no. 65311/09) JUDGMENT STRASBOURG 8 March 2016 FINAL 08/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Morari v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Nebojša Vučinić,Paul Lemmens,Valeriu Griţco,Ksenija Turković,Stéphanie Mourou-Vikström,Georges Ravarani, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 9 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "65311/09) 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 Oleg Morari (“the applicant”), on 1 December 2009. 2. The applicant was represented by Mr V. Gribincea and Ms N. Hriptievschi, lawyers practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular, that he had been the victim of entrapment, as a result of which he had committed a criminal offence. 4. On 23 October 2013 the complaint concerning Article 6 § 1 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1979 and lives in Chisinau. 6. In January 2008 the Balti police organised an undercover operation with the purpose of apprehending a criminal group specialised in the production and circulation of forged documents. For that purpose an advertisement was placed in a local newspaper specialised in advertising, stating as follows: “Need help with obtaining passport (Romanian-Bulgarian)” followed by a telephone number. 7.", "According to the applicant, at that time he was interested in leaving Moldova for Romania or another country in the European Union in order to find a job. He was therefore interested in obtaining a Romanian passport which would facilitate his plans. Since he understood the newspaper advertisement as proposing assistance with obtaining Romanian passports, he called the number from it and met a person who introduced himself as E. During their conversation he understood that E. was himself looking for a Romanian passport. Both men agreed to let each other know in the event that one of them found an easy way of obtaining a Romanian passport. 8.", "Some time later a friend of the applicant (D.) recommended to him a person called Z. who could help obtain a Romanian passport in a short time. Both D. and Z. confirmed during the subsequent court proceedings that it was D. who had recommended Z. to the applicant in March 2008. The applicant met Z. and found out that his services cost 1,500 euros (EUR), a sum of money which he did not possess at the time. 9. It appears from the materials of the case-file that approximately three weeks after the applicant’s first meeting with E., the latter called him to find out whether he had progressed in his search for a way of obtaining a Romanian passport.", "This was submitted by the applicant in the proceedings and not contested by the prosecution. The applicant informed E. that he had found a person, Z., who could help in exchange for EUR 1,500 and proposed to put E. in contact with Z. However, E. refused to get into direct contact with Z. and informed the applicant that he did not have the money at the time. He also told the applicant that he had an acquaintance T. who was also interested in obtaining a Romanian passport and proposed a deal to the applicant. In particular, he proposed to him to act as an intermediary between Z. and T. and tell T. that the price was EUR 2,300.", "The difference of EUR 800 between the price asked by Z. and the sum paid by T. was to be split between the applicant and E. This information was not contested by the prosecution during the proceedings. The applicant accepted E.’s proposal and agreed to arrange a meeting with T. 10. The applicant then discussed the matter with Z., who gave him a list of documents necessary for T.’s new Romanian identity card. The applicant submitted during the proceedings that he had been convinced at the time that the identity card was not going to be forged and that Z. would only act as a representative of T. before the Romanian authorities. This information was contested by Z. during proceedings, who stated that he had informed the applicant from the very beginning that T.’s Romanian identity card was going to be false and that he was to avoid travelling to Romania with it.", "11. On 3 April 2008 the applicant met with T. and obtained from him the necessary documents and an advance of EUR 750 for which he had written and submitted to T. a receipt. He then transmitted the money and the documents to Z. The identity card was later produced in the United Kingdom and reached Z. and then the applicant by the middle of April 2008. On 16 April 2008 the applicant met with T. and gave him the identity card in exchange for the rest of the money.", "He was then arrested by the police. 12. On 17 April 2008 an official criminal investigation was initiated against the applicant on charges of manufacturing and trading with forged official documents. 13. In the meantime, Z. signed an agreement with the prosecutors acknowledging his guilt and was convicted on the basis of that agreement and given a suspended sentence of four years.", "14. During the criminal proceedings the applicant argued inter alia that he had been entrapped by E. and T. and requested that they be heard in court. The court of first instance refused to hear E. and T. and referred to the fact that the law governing undercover operations made it possible to hear undercover officers in court only if they consented to that. 15. On 17 December 2008 the Balti District Court found the applicant guilty of participating in the production of a false Romanian identity card and of selling it to T. The court sentenced him to a criminal fine of some EUR 200.", "The judgment did not make any mention of the applicant’s assertion concerning incitement. 16. The applicant lodged an appeal in which he submitted inter alia that the first instance court had not paid attention to the fact that the offence had been committed as a result of police incitement and that the court had refused to hear the persons who had entrapped him. 17. During the appeal proceedings, the applicant asked again that E. and T. be heard in court.", "Initially the Court of Appeal agreed to hear them; however, later it decided otherwise. 18. On 4 March 2009 the Balti Court of Appeal dismissed the applicant’s appeal and confirmed the judgment of the first instance court. The court examined the applicant’s argument concerning entrapment and dismissed it on the sole ground that it was the applicant who had first telephoned the number indicated in the newspaper advertisement. In so far as the issue concerning the hearing of E. and T. was concerned, the court considered that that was not important as their statements had not been used against the applicant.", "Moreover, according to the law, they could not be heard unless they agreed to that. The applicant lodged an appeal on points of law and submitted the same arguments as in his appeal. 19. On 8 July 2009 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the previous judgments. II.", "RELEVANT DOMESTIC LAW 20. Until 2012 the Moldovan Code of Criminal Procedure did not contain any formal ban on the use of evidence obtained by way of entrapment or incitement. 21. The offence of which the applicant was found guilty is provided for by Article 361 of the Criminal Code, is called “producing, detaining, selling and using of forged official documents” and is punished with fine of up to 12,000 Moldovan lei, community work of 180-240 hours or imprisonment of up to five years. 22.", "According to Article 16 (3) of the Law concerning operative investigation of 12 April 1994, the identity of undercover officers can be made public only if those officers agree to it. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complained that he had been incited to commit the offence of which he was subsequently found guilty and that the domestic courts had refused to hear the two persons who had incited him. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 24.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 25. The applicant alleged that he had been a victim of entrapment by the police and that E. and T. had not confined themselves to observing his criminal activity in a passive manner but had exerted direct influence on him so as to incite him to commit an offence. 26. The applicant further submitted that he had pleaded before the domestic courts that he had been a victim of incitement, but that the courts had failed to examine his plea. Moreover, the courts had refused to hear the undercover agents and had not appeared interested in clarifying details of the undercover operation.", "27. The Government submitted that it was the applicant who had placed an advertisement in a newspaper concerning services relating to forged documents. Building on that submission, the Government contended that the applicant had not been a victim of incitement and that he had in fact been the one who had taken the initiative of providing T. with a forged Romanian passport. In the Government’s view, the undercover officers had had an essentially passive role and they had merely joined the criminal acts committed by the applicant. 28.", "The Government further argued that the fact that the applicant had committed the offence for the first time was irrelevant and they expressed doubt concerning the applicant’s contention that he had not known that the identity card which he had obtained from Z. was false. 29. In so far as the procedural aspect was concerned, the Government submitted that the domestic courts’ refusal to hear E. and T. in the criminal proceedings was compatible with the domestic law and that, more importantly, no statements made by E. and T. had been used to convict the applicant in the first place. Moreover, the Government expressed the view that the courts’ refusal to hear the undercover agents had acted in favour of the applicant because the undercover agents would certainly have confirmed that the applicant had committed the offence imputed to him. 2.", "The Court’s assessment 30. The Court reiterates that as a general rule the admissibility and assessment of evidence is a matter for regulation by national law and appreciation by the domestic courts (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III; Ramanauskas v. Lithuania [GC], no. 74420/01, § 52, ECHR 2008; Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009). Nevertheless, the admission of some evidence can render a trial unfair.", "Such has been found to be the case, for instance, of evidence obtained as a result of ill-treatment with the aim of extracting a confession (see Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006‑IX) or of evidence obtained by way of police incitement or entrapment (see Teixeira de Castro v. Portugal, 9 June 1998, Reports, § 38, 1998-IV). 31. Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Ramanauskas, cited above §55). 32.", "The above principle was further developed in Bannikova v. Russia (no. 18757/06, § 47, 4 November 2010) and in Veselov and Others v. Russia (nos. 23200/10, 24009/07 and 556/10, § 92, 2 October 2012) where the Court observed that undercover operations must be carried out in an essentially passive manner, without any pressure being put on the applicant to commit the offence through means such as taking the initiative in contacting the applicant, renewing the offer despite his initial refusal, insistent prompting, the promise of financial gain such as raising the price beyond average, or appealing to the applicant’s sense of compassion. 33. In view of the importance of the above principles, the Court held in Ramanauskas (cited above, § 60) that where an accused asserted that he had been incited to commit an offence, the criminal courts must carry out a careful examination of the material in the file, since for the trial to be fair within the meaning of Article 6 § 1 of the Convention, all evidence obtained as a result of police entrapment must be excluded.", "This was especially true where the police operation had taken place without a sufficient legal framework or adequate safeguards. 34. Where the accused puts forward an arguable claim of incitement, the Court places the burden of proof on the authorities. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. The scope of the judicial review must include the reasons why the undercover operation was mounted, the extent of the police’s involvement in the offence, and the nature of any incitement or pressure to which the applicant was subjected (see Ramanauskas, cited above §§ 70-71; Bannikova v. Russia, no.", "18757/06, § 48, 4 November 2010; Ciprian Vlăduț and Ioan Florin Pop v. Romania, nos. 43490/07 and 44304/07, § 83, 16 July 2015). 35. Lastly, where the information disclosed by the prosecution authorities does not enable the Court to conclude whether the applicant was subjected to police incitement, it is essential that the Court examine the procedure whereby the plea of incitement was determined in each case in order to ensure that the rights of the defence were adequately protected, in particular the right to adversarial proceedings and to equality of arms (see Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004‑X; Ramanauskas, cited above, § 61).", "For more general principles concerning the issue of entrapment see Bannikova v. Russia (cited above, §§ 33-65). 36. Turning to the facts of the present case, the Court notes that the applicant was convicted on the strength of evidence obtained during an undercover operation. As established during the domestic proceedings, and contrary to the submissions made by the Government (see paragraph 26 above), the applicant first replied to a newspaper advertisement placed by the police which concerned facilitation of obtaining Romanian passports. It does not appear from the materials of the case-file that the applicant contacted E. repeatedly after their first encounter.", "On the contrary, it was the undercover agent E. who contacted him several weeks later and enquired whether he had progressed in his endeavour to obtain a Romanian passport. When the applicant informed E. about Z. and proposed to him to contact Z. directly, E. insisted that the applicant act as an intermediary and promised him financial gain if he accepted. 37. The Court has not been able to find in the materials submitted to it any indication that the offence would have been committed by the applicant without such intervention. Indeed, it does not appear from those materials and from the Government’s submissions that before the commencement of the undercover operation the authorities had knowledge of or any objective evidence that the applicant had previously been involved in producing and/or trading with forged documents.", "This, in the Court’s opinion, clearly demonstrates that the applicant was subjected to prompting and incitement to engage in the criminal activity of which he was convicted. 38. The above findings alone might be sufficient basis for the Court to find a breach of Article 6 of the Convention. Nevertheless, the Court shall also examine the manner in which the domestic courts dealt with the applicant’s defence concerning entrapment. It notes that the first instance court did not even take into consideration the applicant’s entrapment plea.", "The two higher courts that examined his appeal and appeal on points of law limited the examination of the entrapment plea to finding that the applicant had been the first one to call the telephone number from the newspaper advertisement. Moreover, all the courts refused to hear the undercover agents, stating that according to the law, they could be heard only if they consented to have their identities disclosed. The Court further notes that according to Section 16 (3) of the Law on operative investigation (see paragraph 22 above) the undercover agents’ identity could not be disclosed without their consent. In the present case, however, the applicant has seen both of the agents in person. Had the agents’ names known to the applicant been false, the courts had the opportunity to continue using those names for the purposes of the proceedings, without disclosing their real names.", "In the Court’s view, it was fundamental, in the circumstances of the present case, to hear E. and T. in order to properly determine the issue of entrapment raised by the applicant. However, the domestic courts omitted to do that. In this latter respect, the Court recalls that it will generally require that the undercover agents and other witnesses who could testify on the issue of incitement should be heard in court and be cross-examined by the defence, or at least that detailed reasons should be given for a failure to do so (see Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, §§ 101, 24 April 2014) 39. In the light of the above, the Court considers that the applicant was convicted on the basis of evidence obtained by way of police incitement and the courts which examined the case did not carry out a careful examination of his assertion that he had been incited to commit the offence imputed to him.", "Accordingly, the criminal proceedings against the applicant were not fair and there has been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41.", "The applicant claimed 4,000 euros (EUR) for non-pecuniary damage resulting from the anguish caused by the unfair criminal proceedings against himself. 42. The Government considered excessively high the amount claimed by the applicant. 43. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial.", "Making its assessment on an equitable basis, it awards the applicant EUR 3,500 for non-pecuniary damage. B. Costs and expenses 44. The applicant also claimed EUR 1,820 for the costs and expenses incurred before the Court. He submitted a detailed time-sheet.", "45. The Government contested this amount and argued that it was excessive and unsubstantiated. 46. The Court awards the entire amount claimed for costs and expenses. C .", "Default interest 47. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,820 (one thousand eight hundred and twenty euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident" ]
[ "CASE OF I.A. v. FRANCE (1/1998/904/1116) JUDGMENT STRASBOURG 23 September 1998 In the case of I.A. v. France[1], The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[2], as a Chamber composed of the following judges: MrR. Bernhardt, President,MrL.-E. Pettiti,MrR. Macdonald,MrJ.", "De Meyer,MrR. Pekkanen,MrA.N. Loizou,MrJ.M. Morenilla,MrA.B. Baka,MrE.", "Levits, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 26 June and 27 August 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the French Government (“the Government”) on 26 December 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 28213/95) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by a French national, Mr I.A., on 29 March 1993.", "The applicant asked the Court not to reveal his identity. The Government’s application referred to Article 48 of the Convention. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 § 3 of the Convention. 2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated as the lawyer who would represent him Mr T. Fillion, of the Rennes Bar (Rule 30).", "3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 31 January 1998, in the presence of the Registrar, the Vice-President of the Court, Mr R. Bernhardt, drew by lot the names of the other seven members, namely Mr R. Macdonald, Mr J. De Meyer, Mr R. Pekkanen, Mr A.N. Loizou, Mr J.M.", "Morenilla, Mr A.B. Baka and Mr E. Levits (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr Ryssdal, who died on 18 February 1998, was replaced as President of the Chamber by Mr Bernhardt (Rule 21 § 6, second sub-paragraph). 4. As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38).", "Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 20 and 25 May 1998 respectively. On 2 June 1998 the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing. 5. By a letter of 19 June 1998 Mr Fillion informed Mr Bernhardt that he would be replaced at the hearing by Ms M. Gassner-Hemmerlé of the Strasbourg Bar. 6.", "In accordance with Mr Ryssdal’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 June 1998. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)for the GovernmentMrB. Nedelec, magistrat, on secondment to the Legal Affairs Department, Ministry of Foreign Affairs,Agent,MrBrudy, Advocate-General at the Angers Court of Appeal,MrDalles, magistrat, on secondment to the Department of Criminal Cases and Pardons, Ministry of Justice,MrsDabel Clerin, Principal attachée, European and International Affairs Service, Ministry of Justice,Advisers; (b)for the CommissionMrJ.-C. Soyer,Delegate; (c)for the applicantMsM. Gassner-Hemmerlé, of the Strasbourg Bar,Counsel.", "The Court heard addresses by Mr Soyer, Ms Gassner-Hemmerlé and Mr Nedelec. AS TO THE FACTS I.The circumstances of the case 7. The applicant, who was born in Beirut (Lebanon) in 1958, is at present detained in Rennes Prison (Ille-et-Vilaine). In December 1990 he travelled to Lebanon, where he married a young Lebanese woman, who became his second wife. A.Background to the case 8.", "On 21 June 1991 the body of a young woman was retrieved from the harbour mouth at Les Sables d’Olonne (Vendée). She had been gagged, her teeth had been broken and she had head wounds. The body bore the marks of strangulation, had burns on the chest and thighs and had been weighted down with a weight of about twenty kilograms. A post-mortem carried out the same day by Drs Nadau and Rocard revealed, inter alia, that the cause of death had been asphyxia and that the victim had received a blow to the head before she died. 9.", "On 25 June 1991 a murder inquiry was opened and the investigating judge ordered an expert report on the body. The report, by a Professor Rudler, was filed on 29 October 1991. 10. Having been unable to identify the body, the investigators circulated this information through Interpol. On 5 November 1991 the Interpol office in Beirut informed them that the applicant’s wife’s parents, who were worried because they had had no recent news of their daughter, had reported her disappearance to the Lebanese authorities.", "It was subsequently discovered that, by letters of 21 August 1991, the applicant had reported his wife’s disappearance to the municipal services of Nuaille (Maine-et-Loire) and the Vezins gendarmerie. When he was interviewed on 14 September 1991 by gendarmes belonging to that brigade he had stated that his wife had left him on 18 June 1991 to join her brother in Switzerland, taking with her some money and objects of value that she had stolen from him. On 4 October 1991 he had also filed a missing person report with the prefectoral authorities. 11. Tests carried out on the body identified the victim as the applicant’s wife.", "12. The applicant was taken into police custody on 4 December 1991. When interviewed by the police conducting the inquiry he first asserted that on 18 June 1991 he had dropped his wife off at Angers station, where she had caught a train to Paris before travelling to Switzerland. He subsequently made, in substance, the following statement: on 19 June 1991, after a domestic quarrel, the applicant’s wife had attempted to take her own life by swallowing medicines and then dousing herself with household bleach, after which she had hanged herself with a clothes line; fearing the reactions of his wife’s family, Mr I.A. had cut down her body, pushed her tongue back into her mouth with a piece of cloth, wrapped the body in a sheet and blanket, tied and weighted it and then placed it in the boot of his car before driving to Les Sables d’Olonne, where, next day, after waiting for nightfall, he had thrown it into the sea.", "As the investigation proceeded, it revealed the inconsistencies of this version of events. For example, the applicant’s wife had not doused herself with bleach nor had she swallowed medicines; she had not been hanged but strangled; and it was before she died that the piece of cloth had been placed in her mouth and the burns found on her body and the injuries to her teeth had been caused. B.The judicial investigation 1. The course of the investigation during 1991 13. On 6 December 1991 the Sables d’Olonne investigating judge charged Mr I.A.", "with murder and made a provisional order for his imprisonment, committing him to prison for three days. On 9 December 1991 the judge made an order for his detention on remand worded as follows: “… Whereas the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137 of the Code of Criminal Procedure; Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that, as the case concerns a serious crime, and in the light of what the investigations conducted hitherto have revealed, public order has been disturbed, in particular by the circumstances of the discovery of the body; in that the accused belongs to a Lebanese community, so that he must be protected from the risk of revenge attacks by the victim’s family; and in that there is a need to ensure that he remains at the disposal of the judicial authorities, as he may abscond to the Middle East at any time.” 14. On 10 December 1991 the investigating judge appointed a Professor Pannier and a Dr Bureau to produce an expert report on the lesions found on the victim’s body (their report was filed on 3 June 1992). On the same day, and again on 16 December 1991, the judge interviewed one of the applicant’s cousins, who had come to see him of his own accord. 15.", "On 19 December 1991 the investigating judge appointed a Professor Doutremepuich to produce an expert report on vaginal and anal swabs taken from the victim. 16. On 20 December 1991 the investigating judge held a reconstruction of the crime, which was attended, among others, by the doctor who had performed the post-mortem, who was appointed expert with the special task of verifying the compatibility of the versions of events given by the accused with the results of the post-mortem (his report was filed on 10 January 1992). On the same day the investigating judge questioned Mr I.A. 17.", "From 20 December 1991 to 12 February 1992, acting on instructions received on 18 December 1991, the Angers Regional Criminal Investigation Department (SRPJ) monitored the telephone line of a Mr V. and a Miss B., two of the applicant’s acquaintances. 2. The course of the investigation in 1992 18. On 7 January 1992 the investigating judge appointed Professor Doutremepuich to examine the rag that had been used to gag the applicant’s wife. On 8 January he appointed two psychologists, a Mrs Griffon and a Mr Troadec, to produce medico-psychological reports on the applicant and a Dr Pennec to produce a psychiatric report (the reports of the first two experts mentioned were filed on 2 April 1992, that of the third expert on 8 April 1992).", "19. On 16 January 1992, acting on instructions received on 6 December 1991, a detective from the Angers SRPJ interviewed the applicant’s first wife. 20. The investigating judge took evidence from Mr I.A.’s cousin as a civil party on 29 January 1992. On 12 February he took evidence from the victim’s brother and sister-in-law – they had previously been interviewed on 5 February by the Angers SRPJ, acting on instructions of 20 December 1991; on 14 February and 6 March 1992 he confronted them with the applicant.", "21. On 18 March 1992, acting on instructions of 6 March, the Angers SRPJ took a sample of hair from the body. 22. On 18 and 20 March 1992, acting on instructions of 20 December 1991, the Angers SRPJ took statements from Mr V. and Miss B., and from a woman with whom Mr I.A. had been carrying on a sexual relationship before his arrest.", "The latter declared in particular that the applicant had informed her of his intention of leaving France for Australia as soon as his house was sold. 23. On 31 March 1992 the investigating judge visited the scene of the crime. On 15 April 1992 he again interviewed the applicant’s cousin. On 30 April 1992 he took a statement from the applicant’s ex-wife.", "24. On 21 May 1992 the investigating judge confronted the applicant’s cousin with Mr V. and Miss B., then interviewed Mr I.A., asking him in particular whether he wanted any special expert examinations of the victim’s body to be made. On the basis of instructions given the same day, Mr V. and Miss B. were again interviewed by the Angers SRPJ. On 26 May the investigating judge held a confrontation with the victim’s brother and sister-in-law. 25.", "On 29 May 1992 the judge refused an application for release lodged by Mr I.A. in an order worded as follows: “… Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that the offence gravely disturbed public order, being a serious crime; in that further inquiries are necessary; and in that it is necessary to ensure that the accused remains at the disposal of the judicial authorities on account of the fact that, being a Lebanese national, he is likely to flee the jurisdiction, a step which it seems he considered taking shortly before his arrest.” On appeal by the applicant, the Indictment Division of the Poitiers Court of Appeal upheld the above order in a judgment of 16 June 1992, on the following grounds: “Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so.” 26. On 10 June 1992 the investigating judge held a confrontation between the applicant and the three people he had interviewed on 21 May. 27.", "On the basis of instructions given on 17 June 1992, a witness was interviewed by the Angers SRPJ. 28. On 10 July 1992 the investigating judge confronted Mr I.A.’s cousin with his ex-wife. 29. On 14 September 1992 the investigating judge refused an application for release lodged by Mr I.A.", "on 9 September in an order worded as follows: “Whereas the accused’s detention on remand is the only way to preserve the evidence, and to prevent pressure being brought to bear on witnesses or the victim, in that the accused has shown particular duplicity in the organisation of his lies; in that he has colluded with third parties (ex-wife and friend); and in that new evidence has turned up during the investigation (discovery of allegedly stolen jewellery); Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that he remains at the disposal of the judicial authorities, in that public order has been disturbed in the extreme on account of the international, family implications to which the accused himself refers in his application; and in that the accused himself admits to living in fear ‘of our frequently barbaric and unjust customs’, his continued detention is the only way to ensure his protection and to avoid all risk of his absconding in the event of his release.” 30. On 16 October 1992 the accused was served with a copy of the expert report of Professor Pannier and Dr Bureau and was informed that he had fifteen days to submit observations or request an additional expert report or second opinion; he was then interviewed by the investigating judge. He was again questioned by the investigating judge on 28 October 1992. 31. By an order of 29 October 1992 the investigating judge appointed an expert to carry out “an inquiry into the accused’s personality, his financial circumstances, and his family and social background, and to provide any kind of information about his pattern of behaviour”.", "The report was filed on 14 January 1993. 32. By an order of 17 November 1992, which reproduced the wording of the order of 14 September 1992, the investigating judge refused an application for release lodged by the applicant. 33. On 25 November 1992 the investigating judge interviewed the applicant’s cousin.", "34. On 4 December 1992 the judge extended for one year the applicant’s detention on remand, by means of the following order: “Whereas the accused’s detention on remand is the only way to prevent collusion between him and his accomplices, in that the circumstances of the victim’s death and the barbaric acts which she suffered remain obscure; in that it is necessary to try to ascertain the accused’s motives, in case this was not just a simple private problem but formed part of a much more general context with Lebanese links; and in that it is therefore possible that the accused did not act alone; Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that he remains at the disposal of the judicial authorities, in that the case file shows that there is a very serious risk of reprisals; in that the very special circumstances of the victim’s death (barbarity) have been partly responsible for a lasting disturbance of public opinion; and in that it is necessary, in view of the penalty to which the accused is liable, and his foreign origin, to ensure that he remains at the disposal of the judicial authorities.” 35. On 8 December 1992 the investigating judge visited the scene of the crime. 3. The course of the investigation in 1993 36.", "On 13 January 1993 the investigating judge refused another application for release from the applicant, by an order drafted in the same terms as the order of 4 December 1992 (the only major difference being that it omitted to mention that detention was necessary for the protection of the accused). He also refused, on 5 March 1993, an application submitted on 2 March, on the ground that detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. 37. On 16 March 1993 the investigating judge asked a Dr Lavault to produce an additional expert report to verify whether the burns found on the victim’s body had been caused before death. On 24 March 1993 he served Mr I.A.", "with the conclusions of the expert report on the rag that had been used to gag the victim, informed him that he had fifteen days to submit observations or request an additional expert report or second opinion and then interviewed him. 38. By an order of 2 April 1993 the investigating judge refused a new application for release lodged by the applicant on the ground that detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. More specifically, the order stated: “Whereas the offence seriously disturbed public order, since it involved the death of a young woman in particularly barbaric circumstances; and whereas this disturbance, which extends beyond French territory, both the victim and the offender being of Lebanese origin, has not ceased to this day; Whereas it is necessary to keep at the disposal of the judicial authorities a person whose life would be endangered by his release, given the indignation and distress that such a measure could not fail to provoke among the victim’s relatives, as they would not be able to understand or accept it, although they have hitherto placed their trust in French justice; And whereas, lastly, the investigation will in all probability be concluded when the inquiries currently in progress have been completed, and the transmission of the file to the public prosecutor’s office can be expected to take place by the end of June.” On appeal by Mr I.A., the Indictment Division of the Poitiers Court of Appeal upheld this order in a judgment of 21 April, on the following grounds: “Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so.", "It is also necessary for the purposes of the inquiries currently in progress, in particular to avoid all risk of collusion with witnesses and to prevent pressure being brought to bear on them, as [I.A. ]’s conduct gives reason to fear.” 39. On 26 April 1993 the investigating judge appointed Mrs Griffon to conduct a medico-psychological and psychiatric examination of the applicant (her report was filed on 8 July 1993). 40. In the night of 4 to 5 May 1993 a burglary was carried out at the applicant’s home, at which official police seals had been placed.", "On 6 May the vehicle used to move the body, which had been stolen during the burglary, was found in the River Maine at Angers. 41. On 10 May 1993 the investigating judge refused an application for release submitted by the applicant on 5 May, by an order worded as follows: “Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, and to ensure that the accused remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.] is guilty of murder; and in that it is necessary to ensure that he remains at the disposal of the judicial authorities and to forestall any risk of pressure being brought to bear on witnesses.” 42. On 28 May 1993 the investigating judge arranged a confrontation between the applicant, his cousin and one of the experts previously appointed (Dr Nadau); they discussed the question whether the lesions found on the victim’s body had been caused before death.", "43. On 4 June 1993 the investigating judge refused an application for release lodged by Mr I.A. on 1 June, on the ground that his detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence and to ensure that the accused would remain at the disposal of the judicial authorities. He did so again on 18 and 25 June 1993 by means of two orders worded as follows: “Whereas there is strong evidence that [I.A.] is guilty of murder; Whereas from the time of his wife’s death until his arrest he showed particular duplicity, attempting to set his family against the young woman’s family by making particularly serious false allegations; Whereas it is to be feared that [I.A.]", "will abscond to a country where he has family ties; Whereas it is necessary to ensure that he remains at the disposal of the judicial authorities; Whereas his detention on remand is also necessary in order to discover the truth, since [he] has continually employed stratagems designed to enable him to evade his responsibilities.” On 9 July 1993 the investigating judge refused another application for release, dated 5 July, on the ground that the applicant’s detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. On 23 July he refused a further application from the applicant, by means of an order with exactly the same wording as those of 18 and 25 June. On 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993 he refused applications lodged respectively on 9, 24 and 31 August, 9 September, 11 and 25 October and 2 November. These orders generally stated that Mr I.A.’s detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. They also pointed out that there was “strong evidence” that Mr I.A.", "was “guilty of murder”, that “from the time of his wife’s death until his arrest” he had shown “particular duplicity”, that it was “to be feared that he [would] abscond to a country where he [had] family ties” and that it was therefore necessary “to ensure that he remained at the disposal of the judicial authorities so as not to create any risk of the inquiries needed to reveal the truth being impeded”. In a judgment of 23 November 1993 the Indictment Division of the Poitiers Court of Appeal upheld the order of 5 November, on the grounds that “regard being had to the penalty for the offence concerned, there [was] a strong risk that [I.A.] would abscond to his country of origin before he could be brought to trial” and that “his continued detention [was] the only way to guard against that risk”. 44. On 9 November 1993 a Mr A., one of the three people who had carried out the burglary of 4 May, was interviewed by the Angers SRPJ.", "He stated that the purpose of the burglary had been to remove evidence and take away Mr I.A.’s vehicle. On 22 November 1993, when he was questioned by the investigating judge about his relations with the people who had carried out the burglary at his home, the applicant denied any involvement. 45. On the same day the judge extended Mr I.A.’s detention on remand for one year by an order which stated: “The accused must be kept at the disposal of the judicial authorities, since the serious nature of the offence and the circumstances of the victim’s death have very gravely disturbed public order both in France and in Lebanon.” 46. A summary report drawn up by the Angers SRPJ and completed on 6 December 1993, concerning in particular the inquiries conducted after the burglary of 4 May, was communicated to the investigating judge.", "47. On 7 December 1993 the investigating judge interviewed Mr A., who confirmed his statement of 9 November. 48. By two orders of 10 and 17 December 1993, which cited the same grounds as those of 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993, the investigating judge refused applications for release lodged by the applicant on 6 and 13 December 1993. 4.", "The course of the investigation in 1994 49. On 7 and 21 January and 4 February 1994 the investigating judge refused applications for release lodged on 4, 18 and 31 January, by means of orders worded as follows: “Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.] is guilty of murder; in that from the time of his wife’s death until his arrest he showed particular duplicity; in that it is to be feared that he will abscond to a country where he has family ties; and in that it is therefore necessary to ensure that he remains at the disposal of the judicial authorities.” 50. The orders of 7 January and 4 February stated in addition: “The accused’s detention on remand is the only way to prevent pressure being brought to bear on witnesses.” The second of these did not refer to the need to “protect the accused”, but added that detention on remand was “the only way to preserve the evidence”. 51.", "On 7 February 1994 the investigating judge questioned Mr I.A. On the same day the Angers SRPJ interviewed a Mr B., one of the three people who had carried out the burglary of 4 May 1993. Subsequently, the police lost trace of him. 52. By orders of 14 and 22 February 1994 the investigating judge refused applications for release lodged on 9 and 17 February.", "These orders stated that the applicant’s detention on remand was the only way “to preserve evidence [and] prevent collusion between the accused and his accomplices” (order of 14 February) and “to prevent pressure being brought to bear on witnesses” (order of 22 February). For the rest, they repeated the grounds cited in paragraph 49 above. 53. By three orders of 4, 11 and 18 March, the investigating judge refused applications for release lodged on 28 February and 7 and 14 March. The first and third of these orders stated that the applicant’s detention on remand was “the only way” to “preserve evidence” and to “prevent pressure being brought to bear on witnesses”; the second mentioned only the second of these grounds.", "For the rest, they repeated the grounds cited in paragraph 49 above, apart from the fact that the first two made no mention of the necessity of detention for the protection of the accused. 54. In the meantime, on 28 February 1994, an investigating judge from the Angers tribunal de grande instance had been appointed to investigate the case, since the investigation conducted up to that point had shown that the crime had been committed within the territorial jurisdiction of that court. On 4 March 1994 the new investigating judge asked for the file to be passed on to him. On 18 March 1994 the investigating judge who had handled the case until then relinquished his charge to the new judge.", "55. On 6 June 1994 the new investigating judge questioned Mr I.A., who said that he wished to stand by his previous statements. 56. On 16 and 23 September 1994 the judge refused applications for release lodged by the applicant. The first of these orders was worded as follows: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent pressure being brought to bear on witnesses, in that the person under investigation stands accused of murdering his wife, which he denies; in that there is, however, evidence against him that must be examined; in that, moreover, it appears … from the file that he incited others to burgle his home with a view to the destruction of documents that could have been used as evidence; in that his release or placement under judicial supervision would not be, at the present stage of the investigation, conducive to discovery of the truth; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, and to ensure that the person under investigation remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.]", "is guilty of murder, an offence which, by its nature, causes a manifest and lasting disturbance of public order; in that the person under investigation has shown duplicity; and in that, having ties with a foreign country, it is to be feared that he would abscond if released.” The second order read as follows: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent collusion between the person under investigation and his accomplices, in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, and to prevent any repetition of the offence, in that, as the case file stands, there is strong evidence that the person concerned killed his wife; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person concerned during the investigation and the ties he has with a foreign country give reason to fear that he might seek to evade justice and his responsibilities; and in that the person concerned is already due to be examined on 11 October next.” 57. On 11 October 1994 the applicant was examined by the investigating judge. 58. On 18 October and 21 and 25 November 1994 the investigating judge refused applications for release of 13 October and 17 and 22 November by three orders drafted in exactly the same terms as the order of 23 September (apart from the reference to the examination of 11 October). 59.", "On 28 October 1994 the investigating judge instructed the director of the Angers SRPJ to find and interview a Mr F. and Mr B., two of the three people who had carried out the burglary of 4 May 1993. Mr F. was traced on 29 November 1994: he was in prison under the assumed identity of his own brother. 60. On 3 November 1994, acting on instructions of 24 October, the Cholet gendarmerie removed the official police seals from Mr I.A.’s house. 61.", "On 30 November 1994 the investigating judge extended the applicant’s detention on remand for one year, by an order which read: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent collusion between the person under investigation and his accomplices, in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out; and in that the police have been given instructions to try to apprehend the last of the men involved in the burglary; Whereas the detention on remand of the person under investigation is necessary to ensure that the person under investigation remains at the disposal of the judicial authorities, and to preserve public order, in that, as the case file stands, and despite the denials of [I.A. ], there is strong and consistent evidence that he killed his wife in particularly odious circumstances; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person under investigation during both the police inquiries and the judicial investigation and the ties he has kept with his country of origin give reason to fear that he might seek to evade justice and his criminal responsibility.” 62. On 2 December 1994 the investigating judge refused an application for release submitted on 28 November by an order written in the same terms as the order of 30 November. 5. The course of the investigation in 1995 and 1996 63.", "On 5 January 1995 Mr I.A. again applied for release; this was refused by an order of 10 January 1995, on the same grounds as those set out in the orders of 30 November and 2 December 1994. The applicant appealed on 12 January 1995, relying in particular on Article 5 § 3 of the Convention; he complained of the length of the proceedings and argued that he could not be held responsible for this, since he had not requested any step likely to prolong the investigation, nor had he used any procedural remedies capable of suspending its progress. In response, the Indictment Division of the Angers Court of Appeal upheld the order in a judgment of 25 January 1995, holding: “… Although the killing of a woman by her husband is not generally a complex matter, it should be noted in the present case that this killing has been denied and presented as a suicide by hanging, just as the acts of torture and barbarity suffered by the victim during the days which preceded her death have been denied, but above all that the motive for this crime, without knowing which it is not possible to assess the perpetrator’s responsibility, has been carefully concealed. The silence constantly maintained by the person under investigation, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which could have been carried out at the behest of [I.A.", "], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth. These have been the cause of the protractedness of the proceedings and the detention of which [I.A.] complains. The risk that [I.A.] might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death, in concert with the accomplices he may well have had, and the risk that he might abscond to Lebanon or another country where he could be assisted by members of the large community of Lebanese emigrants make it essential for his detention to continue, since judicial supervision in this case is not a measure which can perform the functions set out in Article 137 of the Code of Criminal Procedure.” The applicant appealed on points of law against the above decision, relying on Article 5 § 3 of the Convention in particular.", "He submitted that his refusal to admit the offence which he stood accused of, and which he denied having committed, could not amount to inertia on his part; that the Court of Appeal had not explained how the need to conduct inquiries into the burglary carried out at his home prevented the investigation from proceeding in connection with the events which had led to his detention on remand; and that it had not given detailed reasons for its decision. In a judgment of 22 May 1995, the Court of Cassation dismissed this appeal. 64. In the meantime, on 18 January 1995, acting pursuant to the instructions of 28 October 1994 and further instructions given on 5 January 1995, the Angers SRPJ had interviewed Mr F., who had confirmed Mr A.’s statement to the effect that the burglary at the applicant’s home had been carried out at his behest with the aim of ensuring that certain documents disappeared. On 10 February 1995 the investigating judge had questioned Mr I.A.", "about the circumstances of the burglary; he had denied being behind it. On 24 March 1995 the judge had instructed the Metz gendarmerie by warrant to find out Mr A.’s address so that he could be served with a summons to appear before him at his chambers. The warrant had been returned on 6 April 1995 and the summons had been served on 5 May. On 31 May 1995 the investigating judge confronted the applicant with Mr A. and Mr F. All three confirmed their previous statements about the burglary. 65.", "On 29 June 1995 the investigating judge informed Mr I.A. that his case file was to be communicated to the public prosecutor in twenty days’ time, after which he would no longer be able to request additional investigative measures. On 19 July 1995 the applicant requested the investigating judge to order such measures; he asked for an international letter of request to be issued asking for inquiries to be conducted in Lebanon about the victim’s personality and an assessment made of whether she had suicidal tendencies. He also asked for three expert opinions to be ordered to describe the system of marriage and divorce in Lebanon and to explain the reasons why ethanol had been found in the victim’s body, the different nature of the strangulation marks found, what happened to the tongues of people who had been hanged or strangled and whether the position of the arms as he had described it was what would have been expected. By an order of 11 August 1995 the investigating judge refused these requests after noting their “particularly late” submission and the lack of justification for them.", "66. On 19 July 1995 Mr I.A. had also applied to the Indictment Division asking it to declare the proceedings null and void. 67. On 26 July 1995 the investigating judge refused an application for release by an order worded as follows: “… Whereas the detention on remand of the person under investigation is the only way to prevent pressure being brought to bear on the witnesses, the victim, in that, by his attitude throughout the investigation, the person under investigation has shown how determined he is to impede the discovery of the truth and in that it is to be feared that he might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, in that the person concerned is accused of a killing carried out in odious circumstances, which have disturbed public order in a particularly lasting manner; and in that [I.A.", "]’s conduct and ties outside France give reason to fear that he might seek to evade justice.” 68. On 31 July 1995 the investigating judge transferred the case file to the public prosecutor’s office. 69. On 4 August 1995 the investigating judge refused an application for release of 31 July, by an order written in exactly the same terms as the order of 26 July. 70.", "On 11 August 1995, in view of the application of 19 July in which Mr I.A. had asked the Indictment Division of the Angers Court of Appeal to declare the proceedings null and void, the investigating judge stayed the investigation pending the Indictment Division’s decision and ordered the case file to be transmitted to its president. 71. On the same day the investigating judge refused an application for release by an order written in the same terms as those of 26 July and 4 August. He refused further applications on 18 and 25 August, 1 and 29 September, 20 and 26 October and 3 and 10 November 1995.", "These orders reproduced the reasons set out in those of 26 July and 4 and 11 August and in addition expressly mentioned that detention on remand was “necessary to ensure that the person under investigation remain[ed] at the disposal of the judicial authorities”. The last three orders aded that, by his attitude “during both the police inquiries and the investigation”, the applicant had shown his determination to “mislead the investigators and witnesses about the facts”, that the risk of pressure being brought to bear also applied to witnesses of the events that had followed the victim’s death, that the disturbance to public order caused by the offence was “exceptional” and that Mr I.A.’s conduct and ties outside France gave reason to fear that he might seek to evade justice “as he [had] tried to evade his criminal responsibility”. 72. By a judgment of 15 November 1995 the Indictment Division of the Angers Court of Appeal noted that the proceedings were lawful and remitted the case to the investigating judge for further investigation. On 20 November 1995 the applicant appealed on points of law.", "73. On 17 November 1995, by an order identical to those of 26 October and 3 and 10 November, the investigating judge refused an application for release submitted on 13 November. 74. The prosecution’s final submissions, calling for the file to be transmitted to the Principal Public Prosecutor, were filed on 21 November 1995 and the transmission order was made on 6 December 1995. 75.", "On 24 November and 1 and 6 December 1995, by orders which reproduced the reasons set out in those of 26 October and 3, 10 and 17 November, the investigating judge refused applications for release submitted by the applicant. On 8 December 1995 the applicant appealed to the Indictment Division of the Angers Court of Appeal against the order of 6 December. He complained of the length of his detention and the length of the proceedings. By a judgment of 20 December 1995 the Indictment Division dismissed the appeal, on the following grounds: “… [I.A. ]’s lawyer cannot maintain that the investigation “has still not been closed” when the order for the file to be transmitted to the Principal Public Prosecutor was made on 6 December 1995, nor can he maintain that the Court of Cassation’s decision of 22 May 1995 dismissing his client’s appeal on points of law against the judgment of 25 January upholding an order refusing an application for release did not influence the speediness of the investigation, when he waited until 19 July before asking the investigating judge to take further steps and at the same time requested the Indictment Division to rule that the proceedings were null and void, since those applications, which do not appear to be really consistent with each other, necessarily caused some delay.", "… The killing of a woman by her husband is not generally a complex matter, but it should be observed in the present case, firstly, that the fact that the person under investigation has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which seems to have been carried out at the behest of [I.A. ], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth. Secondly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of. As the preparatory investigation is now closed, [I.A.", "]’s detention on remand is necessary with a view to the definitive investigation of the facts to be conducted at his trial; to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death; to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial. As judicial supervision would not be adequate in the present case to perform the functions set out in Article 137 of the Code of Criminal Procedure, the impugned order is upheld.” 76. On 5 January 1996 the applicant again submitted an application for release to the Indictment Division of the Angers Court of Appeal, which dismissed it in a judgment of 17 January 1996, on the following grounds: “… Although the detention on remand he has undergone is abnormally long for a case in which a woman has been killed by her husband, as this court found in its previous judgment, the length of his detention is not attributable to any dysfunction of the judicial system but solely to the conduct of the person under investigation, who has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, to the inertia he has shown in order to prevent the investigation moving forward and to the need to shed light on the burglary committed at his home, these inquiries and expert reports having been essential to make progress in discovering the truth in view of the attitude shown by the person under investigation. Lastly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of.", "Regard being had to these circumstances, and to the judgment in the case of W. v. Switzerland delivered [by the European Court of Human Rights] on 26 January 1993, the period of time already spent in detention on remand has not exceeded the “reasonable time” prescribed by Article 5 § 3 of the [Convention]. As the Indictment Division is due to rule on 24 January 1996 on the charges to be brought against [I.A. ], his detention on remand is necessary to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death, to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial. As judicial supervision would not be adequate in the present case to perform the functions set out in Article 137 of the Code of Criminal Procedure, the impugned order is upheld.” C.The trial 1. Committal for trial in the Maine-et-Loire Assize Court 77.", "By a judgment of 24 January 1996, the Indictment Division committed the applicant for trial in the Maine-et-Loire Assize Court for murder and made an order for his delivery into custody. On the same day the applicant appealed to the Court of Cassation against this judgment. On 20 March 1996 the President of the Criminal Division of the Court of Cassation ordered the continuation of the proceedings. On 25 June 1996 the Criminal Division dismissed the applicant’s appeals against the Indictment Division’s judgments of 15 November 1995 (see paragraph 72 above) and 24 January 1996. 2.", "The proceedings in the Maine-et-Loire Assize Court 78. At the criminal hearing on 11 December 1996 the Assize Court adjourned the case, in response to an application from the applicant, who objected to being tried in the absence of two witnesses (the victim’s sister-in-law and Mr B., one of the three people who had carried out the burglary of 4 May 1993) and an expert who had all been duly summoned. At the end of the hearing the applicant’s lawyer submitted an application for his release, which the court dismissed after retiring to deliberate. 79. By a judgment of 20 March 1997 the Assize Court sentenced the applicant to life imprisonment, with ineligibility for parole during the first eighteen years.", "3. The proceedings in the Criminal Division of the Court of Cassation 80. The applicant appealed on points of law against the judgment of 20 March 1997. By a judgment of 1 April 1998 the Criminal Division quashed the judgment of the Maine-et-Loire Assize Court and declared it null and void, on the ground that the Assize Court had misapplied Article 346 of the Code of Criminal Procedure when it ruled on an application by the applicant’s counsel for a note to be entered in the record by omitting to allow the latter or his client to address the court last. It remitted the case to the Loire-Atlantique Assize Court.", "D.The applications for release submitted by the applicant after the judgment of the Court of Cassation 81. On 6 April 1998 the applicant lodged an application for release with the Indictment Division of the Rennes Court of Appeal. In a letter of 22 April, his lawyer informed the President of the Indictment Division that his client wished to withdraw the application. This was noted by the Indictment Division in a judgment of 23 April. 82.", "On 13 May 1998 Mr I.A. lodged a further application for release, which the Indictment Division of the Rennes Court of Appeal dismissed in a judgment of 28 May 1998, on the following grounds: “[I.A.] is liable to the penalty for a serious criminal offence. The evidence against him is particularly weighty, particularly in the light of what was revealed by examination of the victim’s body, which he admits getting rid of. The results contradicted the successive versions of events he gave during the investigation, which he took care to adapt and adjust to each new finding made as the inquiries progressed.", "Although his detention on remand has indeed lasted for a long time, its length is not attributable to any dysfunction of the judicial system, but is mainly due to the attitude shown by the accused, who, through his silence, his contradictions and his numerous applications (notably for relinquishment of jurisdiction by the investigating judge), has managed to impede the progress of the proceedings considerably and delay their outcome. In addition to the difficulties encountered in the course of the investigation, there was the need to find time for hearings in the Assize Court, and a new appeal, which was determined more than a year after it was lodged. In view of the particular, and indeed exceptional, circumstances, [I.A. ]’s detention on remand has not exceeded the reasonable time prescribed by Article 5 of the European Convention on Human Rights. Moreover, the defendant has not provided sufficient guarantees that he will appear in court to stand trial.", "[I.A.] is of Lebanese origin. He asserts that he wishes to live in Rennes while waiting to appear in the Loire-Atlantique Assize Court. However, the court has reason to doubt that, particularly in the light of the severity of the penalty to which he is liable. It is to be feared that he will seek to evade justice.", "The risk of the defendant disappearing without trace seems considerable. In the light of all the above considerations, it must be ensured that [I.A.] remains at the disposal of the judicial authorities. These particular circumstances, deduced from the evidence in the case, establish that [I.A. ]’s continued detention on remand remains justified with reference to the criteria exhaustively listed in Article 144 of the Code of Criminal Procedure…” ii.relevant domestic law and practice A.Detention on remand 83.", "Article 144 of the Code of Criminal Procedure provides: “In cases involving serious crimes (matière criminelle) and lesser criminal offences (matière correctionnelle), if the sentence to which the person under investigation is liable is not less than one year’s imprisonment in the case of offences detected immediately after being committed, or two years' imprisonment in other cases, and if the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137, the detention on remand may be ordered [or (Law no. 93-2 of 4 January 1993) ‘extended’]: 1. Where the detention on remand of the person under investigation is the sole means of preserving evidence or of preventing either pressure being brought to bear on witnesses or victims or collusion between persons under investigation and accomplices; [2. (Law no. 93-2 of 4 January 1993) Where this detention is necessary to protect the person concerned, to put an end to the offence or prevent its repetition, to ensure that the person concerned remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence;] ...” 84.", "Detention on remand is imposed by means of an order which must set out the legal and factual grounds for the decision by reference to the provisions of Article 144 only. This order is notified orally to the accused, who receives a full copy of it upon signing the case file to acknowledge receipt (Article 145, first paragraph). The investigating judge gives his decision in chambers, after an adversarial hearing in the course of which he hears the submissions of the public prosecutor, then the observations of the person under investigation and, if appropriate, of his counsel (Article 145, fourth paragraph). B.Length of detention on remand 85. A person under investigation on suspicion of having committed a serious crime may not in principle be detained for more than one year.", "However, the investigating judge may, at the end of that period, extend detention for a period of not more than one year, by a decision given in accordance with the provisions of the first and fourth paragraphs of Article 145; that decision may be renewed in accordance with the same procedure until such time as the investigating judge makes the order terminating the investigation (Article 145-2). C.Applications for release 86. An application for release may be submitted to the investigating judge at any time by the person detained or his lawyer subject to the obligations set out in Article 147; the person concerned is required to give an undertaking to attend immediately in person when a new step is taken in the proceedings if directed to do so and to keep the investigating judge informed of all his movements. The investigating judge immediately communicates the file to the public prosecutor so that the latter can make his submissions (Law no. 93-1013 of 24 August 1993 abolished the provision which required the investigating judge to inform civil parties that an application for release had been made).", "The investigating judge must in principle give his decision within five days of communicating the file by an order setting out the legal and factual grounds for the decision with reference to the provisions of Article 144. Where the above time-limit is not respected, the person detained may apply directly to the indictment division, which must reach a decision within twenty days, failing which the person detained is automatically released, unless verifications concerning his application have been ordered. Where release is granted, it may be accompanied by judicial supervision measures (Article 148). 87. Release may also be requested “in any event” by any person under investigation or defendant and at any time in the proceedings.", "Where application is made to a court of trial or appeal, the latter has the power to grant conditional release; before committal for trial in the assize court, and in between assize court sessions, that power belongs to the indictment division. In the event of an appeal on points of law, and until the Court of Cassation has given judgment, the decision on the application for release is given by the court which last tried the case on the merits. If the appeal on points of law has been lodged against an assize court judgment, the decision regarding detention is given by the indictment division (Article 148-1). The court which receives the application must in principle give judgment within ten days, if it is a court of trial, or twenty days, if it is a court of appeal. Failing that, detention on remand is terminated and the defendant, if not detained for another reason, is automatically released (Article 148-3).", "D.Appeals against orders refusing release and appeals on points of law 88. An appeal against an order refusing release lies to the indictment division. It may be lodged by the person under investigation (Article 186) or by the Public Prosecutor or Principal Public Prosecutor (Article 185). Such an appeal does not have suspensive effect. In principle the indictment division must rule within fifteen days of the appeal, failing which the person concerned is automatically released (Article 194).", "89. When dealing with an appeal on points of law against a judgment of the indictment division concerning detention on remand, the Criminal Division of the Court of Cassation must rule within three months of receiving the case file, failing which the person concerned is automatically released (Article 567-2). PROCEEDINGS BEFORE THE COMMISSION 90. The applicant applied to the Commission on 29 March 1993. He complained of the excessive length of the criminal proceedings against him and, under Article 5 § 3 of the Convention, of his detention on remand.", "He also maintained that the investigation of his case had not been impartially conducted. 91. On 9 April 1997 the Commission (Second Chamber) declared the application (no. 28213/95) admissible in so far as it concerned the length of the proceedings – examining that complaint under Article 6 § 1 of the Convention – and of the detention on remand. In its report of 10 September 1997 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 5 § 3 but not of Article 6 § 1.", "The full text of the Commission’s opinion is reproduced as an annex to this judgment[3]. FINAL SUBMISSIONS TO THE COURT 92. In his memorial Mr I.A. asked the Court “to declare [his] application admissible and well-founded; to draw any legal conclusions from the failure to observe the provisions of Articles 6 § 1 and 5 § 3 of the European Convention on Human Rights during the investigation and indictment procedure followed in [his] respect…; to condemn as such the procedure followed in [his] respect by the French judicial authorities.” 93. The Government asked the Court to hold “that there was no violation of Article 5 § 3 of the Convention” and to dismiss Mr I.A.’s application as “manifestly ill-founded”.", "AS TO THE LAW I.alleged violation of Article 5 § 3 of the Convention 94. The applicant complained of the length of his detention on remand and alleged a violation of Article 5 § 3 of the Convention, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 95. The Government contested this argument, whereas the Commission accepted it. A.Period to be taken into consideration 96.", "Those appearing before the Court agreed that the period to be considered had begun on the day when Mr I.A. was charged with murder and placed in detention on remand. 97. As regards the end of the period concerned, the applicant submitted that he was still “detained” pending trial within the meaning of Article 5 § 3 since his conviction had been retrospectively annulled by the Court of Cassation and the case had not yet been determined by the court to which it had been remitted. In the Government’s view, the relevant date was 20 March 1997, when Mr I.A.", "was convicted by the Maine-et-Loire Assize Court. They argued on that basis that the detention in issue had lasted five years, three months and thirteen days. In its report of 10 September 1997, the Commission also took 20 March 1997 as the relevant date. Nevertheless, at the hearing before the Court, the Delegate of the Commission expressed the opinion that the retrospective effect of the annulment of the Maine-et-Loire Assize Court’s judgment by the Court of Cassation on 1 April 1998 should be taken into account. According to domestic law, the conviction was deemed never to have taken place, so that the applicant’s detention on remand had not been interrupted.", "That approach was moreover apparent from the reasoning of the judgment delivered by the Indictment Division of the Rennes Court of Appeal on 28 May 1998. 98. The Court reiterates that in principle conviction by a court marks the end of the period to be considered under Article 5 § 3; from that point on, the detention of the person concerned falls within the scope of Article 5 § 1 (a) of the Convention (see, for example, the B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 14, § 36). In the present case the applicant was sentenced to life imprisonment by a judgment of the Maine-et-Loire Assize Court of 20 March 1997 (see paragraph 79 above).", "That was the reason for his detention between the latter date and 1 April 1998, when the Criminal Division of the Court of Cassation quashed and annulled his conviction; during that period he was obviously detained “after conviction by a competent court” not “for the purpose of bringing him before the competent legal authority”. Accordingly, notwithstanding the retrospective effect in French law of the judgment annulling his conviction, the period to be considered under Article 5 § 3 ended on 20 March 1997. As to the new period of detention on remand, which began after 10 September 1997, the date of adoption of the Commission’s report, and consequently was not the object of a complaint examined by the Commission, the Court considers that it should not be taken into account (see the Kemmache v. France (nos. 1 and 2) judgment of 27 November 1991, Series A no. 218, p. 23, § 44).", "In short, the period of detention that the Court must now consider lasted just over five years and three months. B.Reasonableness of the length of detention 1. Arguments of those appearing before the Court 99. Mr I.A. submitted that the length of his detention on remand could not be held to be justified under Article 5 § 3 of the Convention.", "There was no risk of collusion or of a repetition of the offence because the authorities were not looking for any accomplice or co-principal and he had no previous convictions. Nor could the fact that he denied killing his wife justify his continued detention, since that attitude was purely and simply the expression of the system of defence he had chosen. Moreover, in view of the offence he had been charged with and the lack of any real international dimension to the case, it could not be described as complex. Lastly, it had been legitimate for him to make use of the remedies available to him under French law. The truth was that the investigating judges themselves had slowed down the progress of the investigation considerably by systematically trying to obtain a confession.", "That was the reason for the length of his detention on remand. 100. The Government agreed that the period of detention on remand undergone by the applicant had been lengthy, but argued that the length was justified by the “very special circumstances of the case”. The persistence of reasons to suspect the applicant during the period under consideration was not in doubt. The other grounds cited by the competent courts had been relevant and sufficient.", "The nature and circumstances of the crime concerned, the accused’s attitude in the weeks that followed the crime and during the investigation, and the international dimension of the case – which had caused quite a stir in Lebanon – had all contributed to a serious and lasting disturbance of public order which release of the applicant would have exacerbated. In addition, according to the Government, on account of Mr I.A.’s personality and conduct the investigating judge could legitimately fear that once released he would attempt to impede discovery of the truth by bringing pressure to bear on witnesses and contacting any accomplices he might have had. Besides, he had lied to those around him and hidden or destroyed evidence, notably by instigating from his prison cell the theft of documents he considered compromising and the destruction of the vehicle that had been used to move the body. The fear that pressure would be brought to bear on witnesses had remained relevant after 7 December 1993 and until the hearing before the Assize Court, as was evidenced by the fact that the investigators had interviewed witnesses after that date on instructions from the investigating judge and the fact that on 31 May 1995 the investigating judge had confronted the accused with the people who had carried out the robbery mentioned above. In short, the requirements of the investigation had pleaded in favour of keeping the applicant detained.", "Furthermore, various evidence indicated that there was a serious risk that, if released, Mr I.A. would abscond: firstly, in their statements of 16 January and 20 March 1992, his ex-wife and his mistress had mentioned his intention of leaving France; secondly, at the time of his arrest, he had been trying to sell his house. The competent judges had looked into the question of substituting judicial supervision for detention on remand and had noted the inadequacy of the other guarantees provided for under French law to ensure that a defendant appears in court to stand trial. In any event, in view of the applicant’s modest income, his release on payment of a security would not have been conceivable. In short, the circumstances of the case justified the fact that the applicant had not been released during the proceedings.", "As for the length of his detention on remand, this had been mainly due to his conduct: by refusing to cooperate with the investigators and by lodging numerous applications and appeals, he had played a large part in slowing down the progress of the investigation, thereby putting off the date of his trial. On the other hand, the conduct of the judicial authorities in that respect had been irreproachable. 101. The Commission considered that the seriousness of the offence the applicant stood accused of and the persistence of reasons to suspect him, even though these subsequently proved to be well-founded, were not in themselves sufficient to justify the length of the detention in issue. It acknowledged that Mr I.A.’s lack of cooperation had made necessary a great deal of detailed investigative work and that the case was relatively complex, but went on to say that these were not the main reasons for the length of the period concerned.", "It was not convinced that a risk of pressure being brought to bear on witnesses persisted after 7 December 1993, when the investigating judge took the last statement from a witness. As to the danger of collusion, although this had been a very real risk at the beginning of the investigation, it had gradually diminished. In addition, the Commission considered that the risk of the applicant’s absconding was not sufficient to justify continuing his detention on remand for more than five years. Moreover, apart from the matter of Mr I.A.’s Lebanese origin, the decisions refusing his applications for release did not mention any circumstance capable of establishing that there was a risk he might abscond or a lack of guarantees that he would appear for trial, and the domestic courts had not considered other means of ensuring that he would appear for trial, such as the lodging of a security. With regard to the disturbance of public order likely to have been caused by the crime in question, the Commission noted that the French courts had cited this ground only on rare occasions and in a purely abstract manner.", "In short, the applicant’s detention on remand had lasted for so long that it required a particularly convincing justification, which the Government had not been able to supply. 2. The Court’s assessment (a)Principles established by the Court’s case-law 102. 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 on the applications for release.", "It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention. The persistence of reasonable suspicion that the person arrested has committed an offence – a point which was not contested in the present case – is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, the Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 18, § 35). (b)Application to the present case 103.", "It appears from the documents on the domestic proceedings at the Court’s disposal that, during the period considered, the French courts ruled on the applicant’s detention on remand fifty-seven times at first instance (orders of 9 December 1991, 29 May, 14 September, 17 November and 4 December 1992, 13 January, 5 March, 2 April, 10 May, 4, 18 and 25 June, 9 and 23 July, 13 and 23 August, 3 and 14 September, 15 and 29 October, 5 and 22 November and 10 and 17 December 1993, 7 and 21 January, 4, 14 and 22 February, 4, 11 and 18 March, 16 and 23 September, 18 October, 21, 25 and 30 November and 2 December 1994, 10 January, 26 July, 4, 11, 18 and 25 August, 1 and 29 September, 20 and 26 October, 3, 10, 17 and 24 November and 1 and 6 December 1995 and judgments of 17 January and 11 December 1996) and five times on appeal (judgments of 26 June 1992, 21 April 1993, 23 November 1993, and 25 January and 20 December 1995). The grounds for their decisions refer to Article 144 of the Code of Criminal Procedure, under which detention on remand cannot be ordered or extended unless it is “the sole means” “of preserving evidence”, “of preventing pressure being brought to bear on witnesses or victims”, or “of preventing collusion between persons under investigation and accomplices”, or is “necessary” to “protect the person concerned”, to “put an end to the offence or prevent its repetition”, to “ensure that the person concerned remains at the disposal of the judicial authorities” or to “preserve public order from the disturbance caused by the offence” (see paragraph 83 above). Before considering the relevance and adequacy of these grounds in the present case, the Court observes that those relating to the need to ensure that the applicant remained at the disposal of the judicial authorities and to preserve public order from the disturbance caused by the offence appear in practically every one of these decisions, whereas the other grounds are not found so regularly. Moreover, although the decisions set out the “legal” grounds on which they are based, many of them contain very few details about the “factual” considerations underpinning them. (i)The need to preserve public order from the disturbance caused by the offence 104.", "This ground appears in most of the decisions concerning the applicant’s detention on remand – with the exception of those of 16 June 1992, 21 April, 18 and 25 June, 23 July, 23 November and 10 December 1993, 25 January and 20 December 1995 and 17 January 1996. The Court accepts that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused's release would actually disturb public order. In addition, detention will continue to be legitimate only if public order actually remains threatened; its continuation cannot be used to anticipate a custodial sentence (see the previously cited Letellier judgment, p. 21, § 51).", "The above conditions have not been satisfied in the present case, since those of the decisions in issue which go some way towards substantiating this ground do no more than refer in an abstract manner to the nature of the crime concerned, the circumstances in which it was committed and, occasionally, the reactions of the victim’s family. (ii)The need to ensure that the applicant remained at the disposal of the judicial authorities 105. All the decisions relating to Mr I.A.’s detention on remand cite this ground, since the competent courts considered that there was a risk the applicant might abscond if released. They are based in the main on the applicant’s links with Lebanon and, in some cases, his “conduct” (that applies to the order of 23 September 1994 and most of the subsequent decisions) and the penalty to which he was liable (orders of 4 December 1992 and 13 January 1993). These are undoubtedly circumstances which suggest a danger of flight, and the evidence in the file tends to show their relevance in the instant case.", "Nevertheless, the Court notes the sketchiness of the reasoning given on this point in the decisions in issue. It further notes that, although such a danger necessarily decreases as time passes (see the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 39, § 10), the judicial authorities omitted to state exactly why in the present case there was reason to consider that it persisted for more than five years. 106. The Court notes, like the Government, that the decisions in issue referred to the inadequacy of judicial supervision and therefore accepts that the question whether the applicant was capable of providing adequate guarantees that he would appear for trial if released was considered.", "Here again, however, it can only note the deficient reasoning of the decisions concerned. (iii)The need to prevent repetition of the offence 107. This ground appears to be of secondary importance in the light of the circumstances of the case. Besides, the orders which cite it – those of 23 September, 18 October and 21 and 25 November 1994 – do not mention any consideration capable of substantiating it in those circumstances. (iv)The need to protect the applicant 108.", "The Court accepts that in some cases the safety of a person under investigation requires his continued detention, for a time at least. However, this can only be so in exceptional circumstances having to do with the nature of the offences concerned, the conditions in which they were committed and the context in which they took place. In the present case this ground appears in the order of 9 December 1991, but not in that of 16 June 1992; it is repeated in the orders of 14 September, 17 November and 4 December 1992, but is missing from that of 13 January 1993; it reappears in the orders of 5 March and 2 April 1993 but is no longer found in the decisions of 21 April, 10 May and 4, 18 and 25 June 1993; it is cited again in that of 9 July 1993, but not in that of 23 July 1993, and then reappears in the seven orders made between 13 August and 5 November 1993; it is not mentioned in the decisions of 22 and 23 November and 10 December 1993, but is mentioned in that of 17 December 1993; it is missing from the decision of 7 January 1994, but is found again in those of 21 January and 4, 14 and 22 February 1994; the decisions of 4 and 11 March no longer refer to it, but it reappears in that of 18 March 1994. This ground was therefore cited intermittently by the judicial authorities, as if the dangers threatening the applicant regularly disappeared and reappeared. Moreover, the few decisions which refer to factors that might explain why there was a need to protect the applicant mention the risk of “revenge attacks by the victim’s family” or “reprisals” (orders of 9 December 1991 and 4 December 1992), or the “fear” expressed by the applicant on account of the “frequently barbaric and unjust [Lebanese] customs” (orders of 14 September and 17 November 1992).", "In particular, they omit to specify why there was such a need when almost all the victim’s family lived in Lebanon. (v)The risk of collusion with accomplices 109. This ground appears in the decisions of 4 December 1992, 13 January 1993, 30 November and 2 December 1994 and 10 and 25 January 1995. It seems natural that the investigating judge should have envisaged at the beginning of his inquiries the possibility that the accused had not acted alone, and should therefore have formed the view that there was a risk of collusion which made it necessary for the applicant’s detention to continue. In that respect, the terms of the order of 4 December 1992 (see paragraph 34 above) are convincing.", "However, it appears from the case file that there was no subsequent evidence to support that hypothesis: thus, with the passage of time, this ground lost its relevance. (vi)The risk of pressure being brought to bear on witnesses and of evidence being destroyed 110. The risk of pressure being brought to bear on witnesses first appears in the decisions of 14 September and 17 November 1992 but is no longer found in those of 4 December 1992 and 13 January 1993; it reappears in that of 5 March 1993 but is not mentioned in that of 2 April 1993; it is repeated in those of 21 April, 10 May and 4 June 1993, but is not found in those of 18 and 25 June and 9 and 23 July 1993; it reappears in the seven orders made between 8 August 1993 and 5 November 1993, then disappears from the decisions of 22 and 23 November and 10 December 1993, only to return in those of 17 December 1993 and 7 January 1994; it is not found in the order of 14 February 1994, but appears again in the eight orders made between 22 February and 21 November 1994; it is missing from the four decisions given between 25 November 1994 and 10 January 1995, but appears in the eighteen decisions given between 25 January 1995 and 17 January 1996. The risk of evidence being destroyed is mentioned for the first time in the decision of 14 September 1992; with the exception of the order of 17 December 1993, the twenty-four decisions given between 17 November 1992 and 21 January 1994 no longer mention it; it is repeated in those of 4 and 14 February 1994, but not in that of 22 February 1994, and reappears in that of 4 March 1994 but is not found in that of 11 March 1994; it returns in the five decisions given between 18 March 1994 and 21 November 1994 but not in that of 25 November 1994; it appears for the last time in the orders of 30 November and 2 December 1994 and 10 January 1995. The Court finds it hard to understand how such risks could fluctuate in such a way.", "It accepts nevertheless – as the competent judicial authorities noted – that they were apparent from the applicant’s personality and his attitude during the investigation. However, although they thus justified the applicant’s detention at the beginning, they necessarily gradually lost their relevance as the few witnesses in the case were interviewed and the investigations proceeded. It is true that the inquiry conducted after the burglary of 4 May 1993 at Mr I.A.’s home revealed that it had been carried out at his behest with the aim of removing certain documents (see paragraph 40 above). It can easily be understood how an event of that nature could lead the investigating authorities to fear that, if released, the accused might endeavour to conceal other evidence. It appears, however, from the case file that at the stage of the proceedings at which the burglary took place most of the evidence had already been gathered – moreover, on 24 October 1994 the investigating judge ordered the removal of the seals placed on the applicant’s house (see paragraph 60 above).", "c)Conclusion 111. To have been compatible with the Convention, the considerable length of the deprivation of liberty suffered by the applicant should have been based on particularly convincing justifications. But the above considerations show at the very least that the initial relevance of the grounds cited by the French courts investigating the offence for their decisions as to the continuation of the applicant’s detention did not stand the test of time. 112. In short, through its excessive length, the detention in issue breached Article 5 § 3.", "II.alleged violation of Article 6 § 1 of the Convention 113. Mr I.A. further complained of the length of the criminal proceedings against him and relied on Article 6 § 1 of the Convention, which provides: “In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…” A.Period to be taken into consideration 114. Those appearing before the Court agreed that the period to be taken into consideration began on the date when Mr I.A. was charged.", "115. With regard to the end of the period concerned, the Court notes that, as Mr I.A. and the Delegate of the Commission pointed out – the Government not stating an opinion on this point – the proceedings have not yet ended since the Maine-et-Loire Assize Court’s judgment of 20 March 1997 was quashed and annulled and the case remitted to the Loire-Atlantique Assize Court (see paragraph 80 above). To date, therefore, the proceedings have lasted approximately six years and nine months. B.Reasonableness of the length of the proceedings 116.", "The applicant submitted that, at best, he would be tried by the Loire-Atlantique Assize Court some time during the last three months of 1998, that is approximately seven years after being charged, and that such a lapse of time could not be described as “reasonable”. 117. The Government maintained that the length of the proceedings was entirely attributable to the applicant’s conduct during the investigation. 118. In its report of 10 September 1997 the Commission expressed the opinion, firstly, that the investigation had been conducted without interruption and had required numerous investigative measures including a number of expert reports, and secondly that by his numerous applications and requests for further investigative measures Mr I.A.", "had substantially contributed to prolonging the proceedings. It accordingly concluded that the length of the proceedings was not excessive. At the hearing, however, the Delegate expressed the opinion that this question should be considered in the light of the recent “new turn” the case had taken and the “resulting increase” in the length of the proceedings. 119. The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities (see, among many other authorities, the Kemmache judgment cited above, p. 27, § 60, and the Reinhardt and Slimane-Kaïd v. France judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 662, § 97).", "120. In the present case the stage of the proceedings subsequent to the judgment committing the applicant for trial (24 January 1996), as matters stand on the date of adoption of the present judgment, cannot be seriously criticised from the standpoint of Article 6 § 1: the Criminal Division of the Court of Cassation gave judgment as early as 25 June 1996 on the applicant’s appeal on points of law against that judgment (see paragraph 77 above) and it was in response to an application from the applicant that, at the hearing on 11 December 1996, the Maine-et-Loire Assize Court adjourned the case to its next session (see paragraph 78 above); that court then gave judgment on 20 March 1997 (see paragraph 79 above) as the Criminal Division of the Court of Cassation did on 1 April 1998 (see paragraph 80 above). 121. It is the length of the preparatory investigation – more than four years and six months – which raises questions. The conduct of the judicial authorities handling the investigation is not exempt from criticism.", "In that connection, the Court notes in particular that the late transmission of the case to the investigating judge at the Angers tribunal de grande instance slowed down the progress of the proceedings. Nevertheless, the case was sufficiently complex “factually” to explain certain delays. In addition, although the applicant cannot be criticised for lodging applications for his release, however numerous these may have been, or for constantly denying that he had committed murder, he too substantially contributed to the protractedness of the investigation: firstly, the burglary of 4 May 1993 (see paragraph 40 above) entailed additional inquiries; secondly, a deliberate attempt by Mr I.A. to delay the investigation is evident from the file – one example being the fact that he waited to be informed that communication of the file to the public prosecutor was imminent before requesting, on 19 July 1995, a number of additional investigative measures (see paragraph 65 above). 122.", "Having regard to the foregoing, and considering the proceedings as matters stand on the date of adoption of the present judgment, the Court concludes that there has been no breach of Article 6 § 1. III.application of Article 50 of the Convention 123. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A.Pecuniary damage 124. The applicant submitted that his long detention had made him lose all his possessions and had deprived him of all sources of income; he claimed damages in the sum of 500,000 French francs (FRF). 125.", "The Government opposed this claim, arguing that it was not based on proof that the alleged loss had actually been sustained. 126. The Delegate of the Commission did not express an opinion. 127. The Court considers that, in the circumstances of the case, no compensation is required for any prejudice whatsoever.", "B.Costs and expenses 128. Mr I.A. claimed payment of the costs and expenses he had incurred before the French courts (FRF 50,000) and the Court (FRF 25,000). 129. The Government pointed out that the applicant had not submitted any documentary evidence of his costs and expenses before the domestic courts.", "130. The Delegate of the Commission did not comment. 131. The Court, not having received any documentary evidence concerning the proceedings in France, awards Mr I.A. FRF 25,000 in reimbursement of the costs and expenses for the proceedings before it.", "C.Default interest 132. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum. FOR THESE REASONS, THE COURT unanimously 1.Holds that there has been a breach of Article 5 § 3 of the Convention; 2.Holds that there has been no breach of Article 6 § 1 of the Convention; 3.Holds (a) that the respondent State is to pay the applicant, within three months, 25,000 (twenty-five thousand) French francs for costs and expenses; (b) that simple interest at an annual rate of 3.36% shall be payable on the above sum from the expiry of the above-mentioned three months until settlement; 4.Dismisses the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 September 1998. Signed: Rudolf Bernhardt President Signed: Herbert Petzold Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the concurring opinion of Mr Pettiti is annexed to this judgment.", "Initialled: R. B.Initialled: H. P. ConcuRring opinion of Judge pettiti (Translation) I voted for the finding of a breach of Article 5 on account of the length of detention on remand but not of Article 6. The case before the French courts and the European Court of Human Rights involved exceptional circumstances: torture, murder and concealment of a body, the latter charge having been admitted. It is understandable that judges dealing with a defendant who made constant attempts to impede the investigation should have conducted as many inquiries as they could to ensure that the truth was revealed and in order to send the most complete case file possible to the Assize Court. The judges carried out their task with full awareness of their duty, saving only the criticisms the Court makes in its judgment about the deficient reasoning of their decisions on the applications for release lodged by the applicant. Account must be taken of the tactics of the accused, who constantly submitted applications for release and for additional investigative measures.", "This could be seen as a deliberate ploy to prolong the investigation with a view to obtaining his release, whereas the investigating judges had always considered that there was a risk he might abscond. This conflict between protection of public order and the accused’s determination to avoid being convicted thus resulted in a length of proceedings which has been adjudged not to have been unreasonable, since the Court must take into account the conduct of the applicant as much as that of the courts. [1]Notes by the Registrar . The case is numbered 1/1998/904/1116. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number).", "The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [2]. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.", "[3]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry." ]
[ "FIRST SECTION CASE OF SAYD-AKHMED ZUBAYRAYEV v. RUSSIA (Application no. 34653/04) JUDGMENT STRASBOURG 26 June 2012 FINAL 26/09/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sayd-Akhmed Zubayrayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 5 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "34653/04) 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 Sayd-Akhmed Saydemiyevich Zubayrayev (“the applicant”), on 19 July 2004. 2. The applicant, who had been granted legal aid, was represented by Ms K. Moskalenko, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the criminal proceedings against him had been unfair because of the authorities’ failure to ensure his presence at the appeal hearing. 4. On 23 October 2008 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 1979 and is serving a prison sentence in the Sverdlovsk Region. 6. On 29 April 2003 the applicant was apprehended and taken into custody in the Chechen Republic. It appears that his detention was extended pending trial.", "7. On 12 November 2003 the Supreme Court of the Chechen Republic found the applicant guilty of numerous offences including, but not limited to, the assassination of a law-enforcement officer, trafficking and possession of illegal firearms, terrorism, theft and rape, and sentenced him to twenty-one years’ imprisonment and confiscation of his property. The court dismissed as unsubstantiated the applicant’s allegations that the investigating authorities had subjected him to physical and mental pressure to make him confess. The court further stated, in the operative part of the judgment, that the applicant had a right to appeal against the conviction within ten days following the receipt of the text of the verdict and that he had a right to ask the appeal court to ensure his participation in the appeal proceedings should he decide to appeal. 8.", "The applicant received a copy of the judgment of 12 November 2003 on 22 November 2003. 9. On 24 November 2003 Ms Kh., a lawyer retained by the applicant, lodged a statement of appeal. Ms Kh. referred to the excessive severity of the sentence and sought, inter alia, to have the applicant’s conviction for trafficking and possession of illegal firearms quashed, citing a lack of evidence.", "She reiterated the applicant’s allegations of ill-treatment and claimed that the applicant’s confrontation with one of the witnesses had been carried out in contravention of the applicable rules of criminal procedure. She did not indicate that the applicant wished to participate in the appeal hearing. 10. The Supreme Court of the Russian Federation scheduled the appeal hearing for 29 January 2004. According to the applicant, he retained another lawyer, Ms A., immediately before the appeal hearing.", "At the hearing Ms A. asked the court for an adjournment, arguing that she had not had sufficient time to study the case file. The court granted her request and scheduled the hearing for 19 February 2004. 11. On an unspecified date Ms A. filed an additional statement of appeal in which she asked the appeal court to acknowledge a violation of the applicant’s rights as set out in Article 5 of the Convention. In particular, she argued that, following his arrest, he had been detained in the absence of a court order and that his pre-trial detention had not been based on relevant and sufficient reasons.", "12. On 4 February 2004 Ms A. informed the Supreme Court of the Russian Federation of the applicant’s wish to attend the appeal hearing. 13. On 11 February 2004 the applicant filed a similar request with the Supreme Court of the Russian Federation. 14.", "On 19 February 2004 the Supreme Court of the Russian Federation decided to proceed with the appeal hearing in the applicant’s absence. As the court reasoned, the applicant had filed his request for participation too late and, in any event, only his lawyer had submitted the statement of appeal. After hearing the judge rapporteur, Ms A. (the applicant’s lawyer), and the prosecutor, the Supreme Court upheld the applicant’s conviction in substance. The court removed the confiscation of property from the applicant’s sentence and reclassified the charge of theft.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Russian Code of Criminal Procedure (hereinafter the “CCP”) 1. Appeal proceedings 15. A judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court and the facts of the case established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, shall also constitute grounds for reversing or amending the judgment (Article 379 of the CCP).", "16. A defendant may lodge a statement of appeal within ten days of receipt of the text of the verdict. The other parties to the proceedings may appeal against the verdict within ten days of its pronouncement (Article 356 § 1 of the CCP). If the defendant detained in custody wishes to participate in the appeal hearing, he should indicate as much in his statement of appeal (Article 375 § 2 of the CCP). 17.", "A statement of appeal lodged belatedly will be dismissed without consideration on the merits (Articles 356 § 3 of the CCP). 18. A defendant who is detained in custody and has asked to participate in the appeal hearing may take part in the proceedings either in person or by way of videoconference (Article 376 § 3 of the CCP). 2. Reopening of criminal proceedings 19.", "Article 413 of the CCP, setting out the procedure for the reopening 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 reopened if there are 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; (c) other new circumstances.” B. Ruling of the Presidium of the Supreme Court of Russia of 12 April 2006 20.", "When discussing the issue of the defendants’ participation in the appeal hearing, the Presidium indicated as follows: “... a defendant held in custody may, within ten days of his receipt of a copy of the verdict, ask [the court] to ensure his participation in the appeal hearing. The [rule] that an appellant may, prior to the appeal hearing, modify his appeal or submit new arguments, is not in contravention of the above finding. A request for participation in the appeal hearing indicated in a defendant’s additional statement of appeal should not be construed as a new argument and, accordingly, does not impose an obligation on the appeal court to ensure the participation of the defendant who is detained in custody in the appeal hearing.” C. Decision no. 3-12/08 rendered by the Military Chamber of the Supreme Court of Russia (as reported in the Overview of the judicial practice adopted by the Presidium of the Supreme Court of Russia on 17 September 2008) 21. When deciding on the case of D., who had not been provided with an opportunity to participate in the appeal hearing, the court noted as follows: “It follows from the materials in the case-file that D. did not appeal against the verdict.", "On 13 November 2006 he learnt about the appeals lodged [by other parties] upon receipt of the [relevant] documents dispatched by the [trial] court to the remand prison [where he was detained]. At the same time he was informed of the date, place, and time of the appeal hearing and his right to take part in it. He expressed his wish to participate in the appeal hearing by indicating so in the proof of receipt. However, his request was denied. Article 376 § 3 of the [CCP] provides that a defendant who is detained in custody and expresses the wish to participate in an [appeal hearing], may take part in the hearing directly or present his arguments by means of a video link.", "... The argument that [the defendant] missed the ten-day time-limit for lodging a request for participation in the appeal hearing, as indicated in the [appeal court’s] decision of 1 December 2006, cannot justify the [appeal court’s] decision to deny him an opportunity to present his arguments before the appeal court directly or by means of a videoconference.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 22. The applicant complained that he had been unable to participate in the appeal hearing held on 19 February 2004 in contravention of Article 6 § 3 (c) of the Convention. The Court will examine the complaint under Article 6 §§ 1 and 3 (c), which, in so far as relevant, reads as follows: “1.", "In the determination ... of any criminal charge against him, everyone is entitled to a fair 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 ... .” 23. The Government contested that argument. They submitted that the applicant had been duly apprised of his right to participate in the appeal hearing.", "However, he had not lodged his request within the time-limit prescribed by the applicable rules of criminal procedure. His belated application for participation in the appeal hearing had been dismissed by the appeal court as lodged out of time. The applicant’s counsel had been present at the hearing and had made submissions to the appeal court. 24. The applicant maintained his complaint.", "He argued that the authorities’ failure to ensure his participation in the appeal hearing, which had been of paramount importance given the severity of the sentence imposed, had rendered the criminal proceedings against him unfair. In the applicant’s view, it had been essential for the fairness of the proceedings that he was afforded the opportunity to participate in the appeal hearing alongside his counsel and his failure to comply with the statutory time-limit for lodging his request to participate in the hearing was of no relevance. Alternatively, the applicant considered that the appeal court should have decided on the issue of his participation in the appeal hearing before the actual hearing, which would have allowed him, when working on the line of defence with his counsel, to take into account the fact that he would not appear before the appeal court. A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. General principles 26.", "The general principles concerning the right of an accused to participate in a hearing and waiver of the right to appear are well established in the Court’s case-law and have been summarised as follows (see Hermi v. Italy [GC], no. 18114/02, ECHR 2006-...): “58. In the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Lala v. the Netherlands, judgment of 22 September 1994, Series A no. 297-A, p. 13, § 33; Poitrimol v. France, judgment of 23 November 1993, Series A no. 277-A, p. 15, § 35; and De Lorenzo v. Italy (dec.), no.", "69264/01, 12 February 2004), and 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). ... 60. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski, cited above, p. 44, § 106). ... 62.", "... even where the court of appeal has jurisdiction to review the case both as to facts and as to 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, § 31). 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 appellate court, particularly in the light of the nature of the issues to be decided by it (see Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31-32) and of their importance to the appellant (see Kremzow, cited above, p. 43, § 59; Kamasinski, cited above, pp. 44-45, § 106 in fine; and Ekbatani, cited above, p. 13, §§ 27-28).", "... 64. However, where an appellate court has to examine a case as to the facts and the law and 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). ... 76. In view of the prominent place held in a democratic society by the right to a fair trial (see, among many other authorities, Delcourt v. Belgium, judgment of 17 January 1970, Series A no.", "11, pp. 14-15, § 25 in fine), Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself 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). ...” 2. Application of the above principles to the instant case 27.", "The Court observes that, in view of the particular features of the Russian criminal procedure, according to which appeal courts have jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing, it has consistently ruled that the appeal proceedings are of capital importance for an accused facing a severe sentence and that it is essential for the fairness of the proceedings that he takes part in the appeal hearing (see among other authorities, Samokhvalov v. Russia, no. 3891/03, §§ 52-54, 12 February 2009, and Kononov v. Russia, no. 41938/04, §§ 35-36, 27 January 2011). The Court does not see a reason to hold otherwise in the present case. It notes that the issues raised by the applicant’s lawyers before the appeal court concerned, inter alia, the severity of the twenty-one-year imprisonment sentence imposed on the applicant and the lack of sufficient evidence to justify his conviction on the charge of trafficking and possession of illegal firearms.", "It concludes, accordingly, that the applicant’s participation in the appeal hearing was required. 28. It further observes that the applicant did unequivocally state his intent to take part in the appeal hearing. On 4 February 2004 Ms A., the applicant’s lawyer, submitted the request on his behalf and on 11 February 2004 the applicant lodged it himself. The appeal court, however, refused to grant the applicant’s request, noting that it had been submitted belatedly.", "29. In this regard the Court notes that, under Russian law, the applicant had an indisputable right to participate in the hearing, directly or by video link, on the condition that he made a request to participate (see paragraph 18 above). The Court considers that the requirement to make such request would not in itself contradict the guarantees of Article 6 if the procedure was clearly set out in the domestic law and complied with by all participants in the proceedings, including the courts (see Sibgatullin v. Russia, no. 32165/02, § 45, 23 April 2009, and Kononov, cited above, § 40). 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 (see paragraphs 20 and 21 above). 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. 32. Admittedly, the applicant was detained in the Republic of Chechnya and the appeal hearing was to be held in Moscow, that is, some 1,770 kilometres away, and the applicant’s transfer for the purposes of his participation in the appeal hearing in person would have called for certain security measures and needed to be arranged in advance. The Court notes, however, that it was also 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], no. 21272/03, § 98, 2 November 2010). The Court notes that the Supreme Court did not discuss whether such an arrangement was feasible in the circumstances of the case. 33. In view of the above, the Court concludes that the applicant’s absence from the appeal hearing rendered the criminal proceedings against him unfair.", "The fact that the applicant’s lawyer was present at the hearing and made submissions to the court did not remedy the situation. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicant made a number of complaints under Article 5 of the Convention relating to his pre-trial detention.", "However, having regard to all the material in its possession, the Court finds that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. The applicant failed to appeal against the relevant domestic court decisions. The fact that his lawyer raised the issue of the alleged unlawfulness and excessive length of the applicant’s pre-trial detention in the statement of appeal is of no relevance. The appeal court dealt with the determination of the criminal charges against the applicant and had no competence to rule on issues concerning his pre-trial detention. It follows that this part of the application must be rejected pursuant to Article 35 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36. The applicant asked for the restoration of his rights set out in Article 6 of the Convention at the domestic level.", "The applicant’s representative also submitted a letter signed by the applicant’s father, in which the latter claimed 2,100,000 euros (EUR) in respect of pecuniary damage and EUR 1,500,000 in respect of non-pecuniary damage. 37. The Government did not comment on the applicant’s claims for damages. 38. In the circumstances of the case, the Court considers that the applicant has not submitted a claim for just satisfaction and there is no call to award any sum to him.", "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 the 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 if the Court finds a violation of the Convention (see paragraph 19 above). B.", "Costs and expenses 39. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the applicant’s absence from the appeal hearing admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. Done in English, and notified in writing on 26 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]
[ "FIFTH SECTION CASE OF MALA v. UKRAINE (Application no. 4436/07) JUDGMENT This version was rectified on 7 October 2014 under Rule 81 of the Rules of Court STRASBOURG 3 July 2014 FINAL 17/11/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mala 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 3 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4436/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Anzhela Volodymyrivna Mala (“the applicant”), on 4 January 2007. 2. The applicant was represented by Ms S. M. Kaplunova, a lawyer practising in Zaporizhzhya. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy. 3.", "The applicant complained that the domestic proceedings initiated by her against her former husband for recovery of child maintenance arrears and penalties had been unfair. 4. On 2 January 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1968 and lives in Zaporizhzhya. 6. On 4 January 1994 the Leninskyy District Court of Zaporizhzhya ordered the applicant’s former husband, S., to pay her child maintenance in respect of their daughter, who was living with the applicant. A. Bailiff’s reports on the child maintenance arrears 7. According to a bailiff’s report of 24 January 2006, the outstanding arrears to the applicant at that date were 7,546 Ukrainian hryvnias ((UAH), at the time equivalent to about 1,200 euros (EUR)), of which UAH 2,052 (about EUR 330) was owed for 2005.", "The bailiff’s calculations were based on the average salary indicators in the district where S. lived, since he had been unemployed at the time. 8. On 1 April 2006 the same bailiff issued a fresh report, assessing the total amount of the arrears at 31 March 2006 at UAH 667.50. The sum owed for 2005 was assessed at UAH 480. The bailiff recalculated the earlier established amount on the basis of a tax return submitted by the applicant’s ex-husband for the last quarter of 2005, which showed that he had earned UAH 3,000 for that period.", "Viewed as his actual earnings for the whole year, that amount was lower than the average salary, which would have otherwise been taken as a basis for the arrears’ calculation. 9. On 4 April 2006 the report of 1 April 2006 was served on the applicant, who had ten days to challenge it. 10. On 11 April 2006 the applicant sought to challenge the accuracy of the report before the Khortytskyy District Court of Zaporizhzhya (“the Khortytskyy Court”).", "11. On 24 May 2006 the Khortytskyy Court allowed her application and invalidated the impugned report as erroneous. It concluded that the bailiff had had no reasons to depart from the earlier calculation, since the tax return submitted by S. concerned only the last quarter of 2005. In the absence of any appeal, the ruling became final. 12.", "On 6 June 2006 the bailiff issued another report, according to which the outstanding child maintenance arrears owed to the applicant at that date were UAH 7,671 Ukrainian hryvnias, of which UAH 2,358 was owed for 2005. 13. On 29 June 2006 the bailiff reassessed the arrears owed by S. to the applicant, concluding that they were UAH 6,606 at 1 June 2006 (as S. had made some payments during that year), of which UAH 2,358 was owed for 2005. 14. On 19 October 2006 the Bailiffs’ Service terminated the child maintenance enforcement proceedings because on 2 October of that year the applicant’s daughter had reached the age of majority.", "The bailiff assessed the outstanding arrears at 2 October 2006 at UAH 8,637.32 (equivalent to about EUR 1,300 at that time); the sum owed for 2005 remained unchanged (UAH 2,358, equivalent to about EUR 330). Neither the applicant nor her former husband challenged this assessment. B. Imposition of penalties (first set of proceedings) 15. On 26 January 2006 the applicant lodged a civil claim against S. for penalties to be imposed on him for late child maintenance payments.", "She relied on the bailiff’s report of 24 January 2006 (see paragraph 7 above). 16. On 16 March 2006 the court adjourned its hearing on the applicant’s request with a view to summoning the bailiff who had issued the aforementioned report. S. did not object to that, but submitted that he had requested recalculation of the arrears owed to the applicant. 17.", "On 3 April 2006 the Khortytskyy Court allowed the applicant’s claim in part and awarded her UAH 141.58 (about EUR 22) in penalties to be paid by her former husband. It based its calculation, in so far as the arrears for 2005 were concerned, on the bailiff’s report of 1 April 2006 (see paragraph 8 above), which had been presented by the bailiff at the hearing on 3 April 2006. Having regard to the bailiff’s explanations as to the reasons for the recalculation, the court held that the aforementioned report took precedence over the report of 24 January 2006 relied on by the applicant. According to the minutes of the hearing, the applicant did not object to the completion of the examination of the case on the merits, but insisted that the court should rely on the report adduced by her. 18.", "On 12 April 2006 the applicant appealed, claiming that the court had wrongly relied on the report of 1 April 2006, which she had only become aware of on 3 April, the day the court had given judgment. She further pointed out that the report in question had not been formally served on her until the following day (4 April 2006) and that she had challenged it in accordance with the established procedure (see paragraphs 9 and 10 above). 19. On 23 May 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) upheld the Khortytskyy Court’s decision of 3 April 2006. It held, without giving further details, that the first-instance court had rightly relied on the bailiff’s report of 1 April 2006.", "20. The applicant appealed in cassation for the decisions of 3 April and 23 May 2006 to be quashed and a fresh examination of the case to be carried out. She complained that the courts had disregarded, without any explanation, the key piece of evidence adduced by her – the bailiff’s report of 24 January 2006. It had not been challenged by any of the parties and was final. She reiterated the arguments of her appeal as regards the bailiff’s report of 1 April 2006 (see paragraph 18 above), pointing out that her complaint about that report had been successful and that it had been invalidated on 24 May 2006.", "21. On 21 November 2006 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was limited to a statement that the cassation appeal was unfounded, and that its arguments did not warrant any verification of the case file materials in accordance with Article 328 § 3 of the Code of Civil Procedure (see paragraph 29 below). C. Recovery of arrears (second set of proceedings) 22. On 21 November 2006 the applicant lodged with the Khortytskyy Court a civil claim against her former husband, seeking recovery of the child maintenance arrears as assessed by the bailiff on 19 October 2006 (see paragraph 14 above), with an inflationary adjustment and additional penalties.", "23. On 22 January 2007 the court found against the applicant. It held that the Bailiffs’ Service had already determined the outstanding arrears S. had to pay (UAH 8,637.32 – see paragraph 14 above), and that the applicant was not entitled to any further indexation or penalties. 24. Following an appeal by the applicant, on 26 April 2007 the Court of Appeal quashed that decision and ordered the applicant’s former husband to pay her UAH 4,964 in arrears (equivalent to about EUR 740).", "As regards the arrears owed for 2005, it relied on the Khortytskyy Court’s decision of 3 April 2006 based on the bailiff’s report of 1 April 2006 (see paragraphs 8 and 17 above). 25. The applicant appealed in cassation. She argued that the final amount of outstanding child maintenance arrears owed to her by S. at 2 October 2006 was UAH 8,637.32 (equivalent to about EUR 1,290). The applicant emphasised that none of the parties had ever challenged the accuracy of that calculation.", "The appellate court had nevertheless chosen to rely on the bailiff’s earlier report of 1 April 2006, which had been invalidated by the Khortytskyy Court on 24 May 2006 after she complained. 26. On 19 July 2007 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was identical to that given in the ruling of 21 November 2006 (see paragraph 21 above). D. Other proceedings 27.", "On 28 April 2006 the applicant lodged a civil claim with the Khortytskyy Court, seeking an increase of the child maintenance to be paid by her former husband from that date onwards. 28. On 20 June 2006 the court allowed her claim in part and assessed the amount of monthly child maintenance at UAH 165, to be paid from 3 May until 2 October of that year, the date their daughter reached the age of majority. No appeal was lodged and the decision became final. II.", "RELEVANT DOMESTIC LAW AT THE MATERIAL TIME A. Code of Civil Procedure (enacted on 1 January 2005) 29. The relevant provisions read as follows: Article 213: Lawfulness and reasoning of judicial decisions “1. A court decision must be lawful and reasoned. 2.", "A decision is lawful if the court, having complied with all the requirements of the civil procedure, has adjudicated the case in line with the law. 3. A decision is reasoned if it is based on a complete and thorough assessment of the circumstances, which the parties referred to in support of their claims or objections and which were corroborated by the evidence examined in the court hearings.” Article 328: Opening cassation proceedings “... 3. The judge rapporteur shall reject a request for leave to appeal in cassation if: ... (5) the cassation appeal is unfounded and its arguments do not warrant any verification of the case file materials. ...” Article 335: Scope of consideration of the case by the court of cassation “1.", "When examining a case in cassation, the court shall verify, within the limits of the cassation appeal, whether the first-instance or appellate court applied the provisions of the substantive or procedural law correctly, [but] may not establish or hold proven facts which were not established or dismissed by the judgment, [or] decide on the reliability of evidence or the weight to be attached to certain evidence... 2. The court of cassation shall examine the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance. 3. The court shall not be limited by the arguments of the cassation appeal if, in the course of the consideration of the case, it discerns the wrongful application of substantive legal provisions or a breach of procedural rules, constituting grounds for the compulsory quashing of the decision.” Article 336: Powers of the court of cassation “1. Upon its examination of a cassation appeal against a judicial decision, the court of cassation has the power to: (1) adopt a ruling dismissing the cassation appeal and upholding the [contested] decision; (2) adopt a ruling fully or partly quashing the decision and referring the case back to the first-instance or appellate court for fresh consideration; (3) adopt a ruling quashing the decision of the appellate court and upholding that of the first-instance court, which was erroneously quashed by the appellate court; (4) adopt a ruling quashing the decisions and terminating the proceedings in the case or leaving the claim without consideration; or (5) quash the decisions and adopt a new decision or vary the existing decision, without referring the case back for fresh consideration...” 30.", "The Scientific and Practical Commentary on the Code of Civil Procedure (Цивільний процесуальний кодекс України: Науково-практичний коментар. – У 2 т. / За заг. ред. С.Я.", "Фурси. – К.: Видавець Фурса С.Я: КНТ, 2007) states, in respect of Article 335: “... in verifying whether the [lower] courts have correctly applied the Code of Civil Procedure, the court of cassation is obliged to check whether [their] decisions are well-reasoned, because this is a requirement of the procedural law provided for in Article 213 of the Code.” B. Family Code 2002 31. The relevant part of Article 194, which concerns the recovery of child maintenance arrears, reads as follows: “4. Child maintenance arrears shall be recovered regardless of whether the child has reached the age of majority...” C. Law on Judicial Enforcement 1999 32.", "The relevant provisions read as follows: Article 37: Termination of judicial enforcement “Enforcement proceedings shall be terminated: ... (6) [where] the statutory time-limit for a given type of recovery has expired; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 33. The applicant complained of unfairness in the first and second sets of proceedings. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 34. The Government submitted that the applicant had not exhausted domestic remedies as regards her complaint of unfairness in the first set of proceedings.", "35. According to them, if she had not wanted the courts to rely on the bailiff’s report of 1 April 2006, she could have requested that the proceedings be stayed pending the outcome of her complaint about that report. 36. The Government went on to state that, since the applicant had made no such request, nothing had prevented the first-instance and appellate courts from relying on the report, which had still been valid at the time they had given judgment. 37.", "The applicant disagreed with the Government’s submissions in general terms. 38. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-66, Reports of Judgments and Decisions 1996‑IV). 39.", "The Court has examined the issue of exhaustion of domestic remedies in the context of civil proceedings in Ukraine many times. It has held that, under the existing procedural legislation, recourse to an appellate court and the Supreme Court in its capacity as a court of cassation constituted effective remedies to be exhausted before the case is brought before the Court (see, for example, Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002; Balyuk v. Ukraine (dec.), no. 17696/02, 6 September 2005; Golovko v. Ukraine, no. 39161/02, § 43, 1 February 2007; and Bashchenko v. Ukraine (dec.), no.", "61484/10, 3 April 2012). 40. The Court observes that the applicant in the present case raised her claim before the domestic courts at the three different levels of jurisdiction. It therefore considers her to have complied with the requirement of exhaustion of domestic remedies. Her failure to seek the interim procedural measure as indicated by the Government is irrelevant for this conclusion.", "41. Accordingly, the Court dismisses the Government’s objection. 42. It 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 43. The applicant complained that the domestic courts’ decisions in both sets of proceedings had been poorly reasoned. More specifically, she submitted that the courts had relied, in an arbitrary manner and with complete disregard for her specific and pertinent arguments, on the bailiff’s report of 1 April 2006 as the key piece of evidence, even though it had been invalidated by the time the first set of proceedings had been completed and the second set of proceedings had been initiated.", "44. The Government maintained that the proceedings in the applicant’s case had been fair. 45. As regards the first set of proceedings, the Government drew the Court’s attention to the fact that at the time the first-instance and appellate courts had given judgment, the impugned bailiff’s report had still been a valid document. In so far as the examination of the applicant’s cassation appeal was concerned, the Government noted that the Supreme Court’s competence was limited to points of law.", "In the absence of any violations by the lower courts of substantive or procedural law, the Supreme Court had correctly dismissed the applicant’s cassation appeal as unfounded. 46. As regards the second set of proceedings, the Government contended that the applicant had failed to submit the decision of the Khortytskyy Court of 24 May 2006[1] to the first-instance court in support of her claim. Accordingly, the Khortytskyy Court had simply been unaware that the report of 1 April 2006 had been invalidated. The Government further submitted that the applicant had attended only few hearings before the Court of Appeal, and had thus missed the opportunity to raise her arguments.", "They maintained that there had been nothing arbitrary about the appellate court’s reliance on the judicial decisions of 3 April and 23 May 2006, which had been delivered in the first set of proceedings. Lastly, the Government reiterated their aforementioned arguments regarding the limited competence of the Supreme Court. 2. The Court’s assessment (a) General case-law principles 47. The Court reiterates that 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.", "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). Similarly, it is in the first place for the national authorities, in particular the courts, to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. That being said, the Court’s task remains to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair (see Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004).", "48. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005‑II). The principle of equality of arms requires “a fair balance between the parties”, and each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Batsanina v. Russia, no. 3932/02, § 22, 26 May 2009).", "Furthermore, the principle of fairness enshrined in Article 6 of the Convention is disturbed where domestic courts ignore a specific, pertinent and important point made by an applicant (see Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). 49. Lastly, according to the Court’s case-law reflecting a principle related 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, cited above, § 26, with further references). (b) Application of the above general principles to the present case 50. Turning to the present case, the Court notes that the key issue in the sets of proceedings complained of was the amount of child maintenance arrears owed to the applicant by her former husband. The domestic courts had two conflicting pieces of evidence before them to that effect: the bailiff’s report of 24 January 2006 assessing the sum owed for 2005 at UAH 2,052, and another bailiff’s report of 1 April 2006 assessing the same sum at UAH 480 (see paragraphs 7 and 8 above). They based their decisions on the latter of the two reports.", "51. As regards the first set of proceedings, the Court notes that the first of the two reports, which was adduced by the applicant, had the status of a final document unchallenged by any of the parties. As to the second report, it was not adduced as evidence until 3 April 2006, the day of the hearing, at the end of which the first-instance court gave judgment. The court chose, however, to rely on the second report (of 1 April 2006). Having regard to the fact that it heard the bailiff who had authored both reports, of 24 January and 1 April 2006, the Court does not discern any indication of bad faith as such in that decision of the Khortytskyy Court.", "Nor does it escape the Court’s attention that, according to the minutes of the hearing, the applicant neither expressed any intention to challenge the mentioned report of 1 April 2006 nor sought that the proceedings be stayed till that report became final. 52. In the light of these considerations and given that it is primarily for the national courts to assess the evidence before them (see paragraph 47 above), the Court finds little reason to criticise the aforementioned evidentiary decision of the Khortytskyy Court. 53. At the same time, the Court does note the importance for the authorities to give detailed and convincing reasons for their refusal to take evidence proposed by an applicant, especially where that evidence has considerable importance for the outcome of the proceedings, like in the case at hand (see, for example, Vitzthum v. Austria, no.", "8140/04, § 33, 26 July 2007). 54. While the applicant’s argument in the present case regarding the admission of the unfavourable for her report as evidence and her intention to challenge it were apparently not clearly articulated before the first-instance court, she did insist on that pertinent and specific issue in her appeal (see paragraphs 17 and 18 above). The Court notes, however, that the appellate court left it without any assessment thus breaching the proper administration of justice principles as established in the Court’s case-law (see paragraphs 19 and 48-49 above). 55.", "Nor was that issue addressed in the Supreme Court’s ruling, which is by its nature more concise and formalistic given the third level of jurisdiction involved, even though the cassation court is in principle entitled to review the reasoning of the lower-level courts (see paragraphs 21 and 29-30 above). 56. The Court also observes that, as it follows from the applicant’s cassation appeal, she did inform the courts of the decision of 24 May 2006 contrary to the Government’s argument that the domestic courts had remained unaware of it. 57. Having regard to all the circumstances of the present case and, in particular, to the failure of the appellate court to give any assessment to the applicant’s argument of key significance for the outcome of the proceedings, the Court considers that the first set of the proceedings did not comply with the fairness principle enshrined in Article 6 of the Convention.", "58. Moreover, the problem with those proceedings also undermined the fairness of the second set of proceedings. Thus, given the prejudicial nature of the decisions taken within the first set of proceedings, the courts within the second set had to rely on the then invalid bailiff’s report of 1 April 2006 instead of that of 19 October 2006 adduced by the applicant as the final document determining the amount of outstanding arrears. 59. In sum, the Court considers that there has been a violation of Article 6 § 1 of the Convention on account of the unfairness of both sets of proceedings in the applicant’s case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 61. The applicant claimed UAH 89,830 in respect of pecuniary damage and UAH 100,000 in respect of non-pecuniary damage.", "62. The Government contested these claims as irrelevant, excessive and unsubstantiated. 63. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects this claim; however, it awards the applicant EUR 900 in respect of non-pecuniary damage. B.", "Costs and expenses 64. The applicant did not submit any claims for costs and expenses. The Court therefore makes no award in this respect. C. Default interest 65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT 1. Declares by a majority the application admissible; 2. Holds by four votes to three that there has been a violation of Article 6 § 1 of the Convention; 3. Holds, by four votes to three (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 900 (nine 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; 4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.” Done in English, and notified in writing on 3 July 2014, 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 opinions of Judges Yudkivska, Power-Forde and Jäderblom are annexed to this judgment. M.V.C.W. JOINT DISSENTING OPINION OF JUDGES POWER‑FORDE, YUDKIVSKA AND JÄDERBLOM We are unable to share the majority’s conclusion that Article 6 § 1 was violated in the present case. The applicant lodged a claim against her ex-husband for penalties for late child maintenance payments. Her calculation was based on the bailiff’s report valid at the relevant time (paragraph 7).", "During the court hearing the bailiff called by the applicant appeared with a new report, calculated on the basis of new information submitted by the defendant. There is nothing to suggest that in the course of the proceedings the applicant was unable to challenge the report or to submit any relevant data. The judge heard both parties and bailiff responsible for the calculation, assessed the information at hand and gave his judgment; and as with the majority, we see no reason to blame the first instance court. However, the majority criticised the Court of Appeal for a failure to address, specifically, the applicant’s submission that the bailiff’s report, which served as the basis for the first instance court’s judgment, was challenged by the applicants in separate proceedings. According to the majority, this failure amounts to the breach of the proper administration of justice principles established in the Court’s case-law (paragraph 54).", "We cannot subscribe to this conclusion. The role of the Court of Appeal is to correct errors that occurred at the first instance court, to check if the latter properly applied law to the facts before it. It can, of course, take into account new facts; but the decision on the applicant’s complaint against the bailiff’s report was taken on 24 May 2006, whereas the Court of Appeal delivered its judgment one day earlier, on 23 May 2006 (paragraphs 11 and 19). The Court of Appeal thus did not have sufficient grounds (a new fact) at the relevant time to quash the first instance judgment for being erroneous factually or procedurally flawed. The majority’s conclusion in paragraph 52 that it is up to the national courts to assess evidence before them is equally pertinent to the appeal court’s decision, since the impugned bailiff’s report was only one aspect of the evidence before it, together with the bailiff’s explanations and the statements made by the parties.", "Criticising the Court of Appeal for a failure to address one of the applicant’s argument, albeit an important one, may be interpreted as going beyond this Court’s competence and acting as a “fourth instance” court, in circumstances where the decision does not appear to be arbitrary in the sense of having a complete lack of reasoning. Further, the Supreme Court, although aware of the decision of 24 May 2006 could not, as it follows from Article 335 of the Code of Civil Procedure (see paragraph 29), establish facts which were not established in the lower courts’ decisions and quash them based on new facts. Thus it remains unclear how the Supreme Court could be expected to address the decision of 24 May 2006 (see paragraph 56). The role of the Supreme Court is very limited with respect to new facts. Although the applicant is, understandably, unhappy about the outcome of the proceedings, we consider that even in this unfortunate sequence of events she was, nevertheless, in a position to protect her rights – she could, for instance, institute proceedings against the bailiff challenging termination of the enforcement proceedings (paragraph 14).", "Finally, we would question whether the applicant has suffered any significant disadvantage with respect to the outcome of the first set of proceedings. We note that the courts imposed penalties of approximately 22 euros on the defendant for a debt of UAH 480 for 2005 calculated on the basis of the “wrong” bailiff’s report (paragraphs 8 and 17). Had the court considered the debt for 2005, as the applicant insisted, to be UAH 2,052, a simple calculation shows that the sum of penalties would have been only 72 euros more. In sum, we consider that given the understandable omission of the Court of Appeal and the ­amount of money which was at stake in the impugned proceedings, respect for human rights did not require the Court to examine this case on the merits and to find a violation of Article 6 § 1 of the Convention. [1].", "Rectified on 7 October 2014: the text was” the bailiff’s report of 24 May 2006”" ]
[ "THIRD SECTION CASE OF MARIN TEODORESCU AND OTHERS v. ROMANIA (Applications nos. 23777/06, 41239/07, 9129/09, 24290/12, 35520/13, 48755/13 and 56851/13) JUDGMENT STRASBOURG 22 October 2015 This judgment is final. It may be subject to editorial revision. In the case of Marin Teodorescu and Others v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Valeriu Grițco, President, Branco Lubarda, Mārtiņš Mits, judges, and Karen Reid, Section Registrar, Having deliberated in private on 1 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.", "2. The applications were communicated to the Romanian Government (“the Government”). THE FACTS THE CIRCUMSTANCES OF THE CASE 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4.", "The applicants complained of the excessive length of civil proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6. The applicants complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "8. In the leading case of Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, 26 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III. REMAINING COMPLAINTS 11.", "Some applicants raised other complaints under various Articles of the Convention. 12. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 14. Regard being had to the documents in its possession and to its case‑law (see Vlad and Others v. Romania, cited above, §§ 166-173), the Court considers it reasonable to award the sums indicated in the appended table. 15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints concerning the excessive length of civil proceedings admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 22 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidValeriu GrițcoRegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (excessive length of civil proceedings) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for non-pecuniary damage per applicant/ household (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2] 23777/06 29/05/2006 Marin TEODORESCU 17/07/1951 (the applicant died in the course of the proceedings before the Court; the application was pursued by his heirs Elena TEODORESCU, Ionela Cristina TEODORESCU, Gheroghe Adrian TEODORESCU and Aurelian TEODORESCU) Elena TEODORESCU Lădești, Vâlcea 27/10/2000 23/01/2007 6 years and 3 months 3 levels of jurisdiction 500 - 41239/07 11/09/2007 Floare ȚIȚ 28/04/1935 Teodora COLOJA Bihor 24/01/1995 15/03/2007 12 years and 1 month 3 levels of jurisdiction 2,520 350 9129/09 04/02/2009 Aurel ISCRU 01/04/1950 - 25/01/2005 pending 10 years and 6 months 1 level of jurisdiction 1,000 15 24290/12 11/04/2012 Virgil RADU 31/08/1951 - 01/06/2004 12/10/2011 7 years and 4 months 2 levels of jurisdiction 1,800 - 35520/13 23/04/2013 Dorina EPURAN 24/08/1957 Andreea Cosmina BĂDÎRCĂ Timișoara 29/10/2007 24/10/2012 4 years and 11 months 2 levels of jurisdiction 1,200 880 48755/13 17/07/2013 Household Teofil HAICA 30/04/1948 Adriana Florica HAICA 04/03/1960 - 24/01/2005 17/01/2013 7 years and 11 months 3 levels of jurisdiction 840 - 56851/13 26/08/2013 Măndița JUGĂNARU 22/09/1942 - 24/01/2008 17/04/2013 5 years and 2 months 2 levels of jurisdiction 1,200 - [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants." ]
[ "SECOND SECTION CASE OF RTBF v. BELGIUM (Application no. 50084/06) JUDGMENT [Extracts] STRASBOURG 29 March 2011 FINAL 15/09/2011 This judgment has become final under Article 44 § 2 of the Convention. In the case of RTBF v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Danutė Jočienė, President,Françoise Tulkens,Ireneu Cabral Barreto,Dragoljub Popović,Giorgio Malinverni,Işıl Karakaş,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 8 March 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50084/06) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian autonomous public corporation, Radio-télévision belge de la communauté française (RTBF – “the applicant company”), on 30 November 2006.", "2. The applicant company was represented by Mr J. Englebert, a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3. The applicant company alleged, in particular, a violation of its right of access to a court under Article 6 of the Convention, and a violation of its right to freedom of expression and freedom of the press and its right to impart information under Article 10.", "4. On 16 May 2008 the Vice-President of the Second Section decided to give notice of the application to the Government. It was also decided that the Chamber would examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant company, a public broadcasting corporation serving the French Community in Belgium, produced a long-running monthly news and investigation programme called Au nom de la loi (“In the name of the law”), focusing in particular on legal matters in the broad sense of the term. The programme was described as follows on the RTBF website: “Right from the start, Au nom de la loi sought to operate on the basis of two main principles: standing up for the underdog, so that ordinary citizens were always given a say, and looking for the hidden agenda, so that its journalists’ investigative skills came to the fore.” 6. In 1999 Dr D.B., a specialist neurosurgeon, ran a neurosurgery practice together with a colleague, including an on-call service at Jolimont Hospital. A number of Belgian newspapers, both regional (La Nouvelle Gazette in December 2000 and May 2001) and national (Le Soir in December 2000 and La Dernière Heure in four articles between 7 and 28 December 2000), reported on complaints by various patients who had been operated on by Dr D.B. Only two of the articles mentioned his name.", "According to information provided by the parties, none of the articles prompted any reaction on the doctor’s part. 7. The applicant company subsequently decided to devote a segment of its programme Au nom de la loi to medical risks and, more generally, communication and information problems encountered by patients and the rights available to them, using as an example the complaints by Dr D.B.’s patients as reported in the press. 8. While preparing the programme, journalists from the applicant company contacted a number of patients, medical specialists, representatives of the Council of the Medical Association (Ordre des médecins) and Dr D.B.", "himself. The doctor refused to give a televised interview but agreed to answer questions from the applicant company’s journalists during a series of meetings lasting several hours, in the presence of his lawyers. The programme was scheduled to be broadcast on 24 October 2001. 9. By a summons served on 3 October 2001, Dr D.B.", "instituted proceedings against the applicant company before the President of the Brussels Court of First Instance, as the judge responsible for hearing urgent applications. He sought an injunction preventing the broadcast of the programme in question, with a penalty of five million Belgian francs each time it was shown on a television channel. In the alternative, should the injunction not be granted immediately, he sought an order requiring a videotape of the programme to be made available for advance viewing. 10. On 24 October 2001 the President of the Court of First Instance granted an interim injunction preventing the programme in question from being broadcast, with a penalty of two million Belgian francs each time it was shown on a Belgian television channel; the injunction was to remain in place until a decision was given on the merits, provided that the claimant himself instituted proceedings on the merits within one month of the injunction, failing which it would cease to have effect.", "11. The injunction stated that there was no cause, on the face of it, to doubt the good faith and professionalism of the applicant company’s journalists or the objective nature of their investigations, and that the claimant had a number of remedies by which to seek redress ex post facto for the damage sustained. It concluded that an application for prior restraint should not be granted unless it was established with certainty that the scheduled broadcast would damage the claimant’s honour and reputation. 12. The injunction noted that it was not disputed that the complaints of the patients whom the applicant company intended to feature in the programme had yet to be considered by any court.", "As matters stood, no judicial proceedings had even been brought in respect of most of the complaints. Furthermore, professional confidentiality, which Dr D.B. had cited as his reason for refusing an interview, meant that he would be unable to give adequate answers, and his silence would at the very least raise doubts among the public as to his professional ability. 13. The injunction further pointed out that neurosurgery and the post-operative complications to which it might lead were complex matters and that, as a result, regard should be had to the difficulty in conveying an understanding of the subject to a non-specialist audience in a feature lasting well under an hour.", "14. The court did not view the programme before giving its ruling. Dr D.B. had requested that a videotape of the programme be made available for viewing by the court’s President, but the applicant company, in both its written and oral submissions, refused to accede to the request. 15.", "Dr D.B. arranged for the injunction of 24 October 2001 to be served the same day at 4.40 p.m. 16. In the event, the programme was not in fact cancelled, but the feature on the alleged medical errors by Dr D.B. was replaced by a discussion between a journalist and the programme’s producer. During the discussion and the preceding news broadcast, the applicant company commented at length on the injunction of 24 October 2001, describing it as judicial censorship of press freedom.", "Dr D.B.’s name was mentioned several times. On 25 October 2001 Dr D.B. requested a right of reply, but the applicant company refused his request in a registered letter of 31 October 2001. 17. On 5 November 2001 the applicant company appealed to the Brussels Court of Appeal against the injunction.", "18. On 6 November 2001 Dr D.B. instituted proceedings on the merits against the applicant company in the Brussels Court of First Instance, concerning the same subject matter as his urgent application. At the preliminary hearing the case was adjourned until further notice with a view to its preparation. By the date on which the application was lodged with the Court, the proceedings were still pending.", "19. In an interlocutory judgment of 21 December 2001, the Court of Appeal, ruling on the appeal against the injunction, held that Article 25 of the Constitution was not applicable in the case as it related only to the print media and not the audio-visual media, and that neither Article 19 of the Constitution nor Article 10 of the Convention prohibited restrictions on the exercise of freedom of expression, provided that they had a basis in law. It observed that Article 22 of the Constitution and Article 8 of the Convention, which guaranteed the right to respect for private life, together with Articles 584 and 1039 of the Judicial Code, constituted the law in this regard and empowered the urgent-applications judge to order restrictions on freedom of expression as a preventive measure in “cases of flagrant violations of the rights of others”. In the present case the press release announcing the programme had given reason to believe that the broadcast might damage Dr D.B.’s honour and reputation and interfere with his private life. 20.", "The Court of Appeal also ordered the resumption of the proceedings and directed the applicant company to produce the recording of the programme in issue. 21. It noted in that connection that “since prior restraints on freedom of expression entail considerable dangers, intervention by the urgent-applications judge will have ... democratic legitimacy only if it is limited to cases of flagrant violations of the rights of others”, and held that the way in which the applicant company had “announced and described the programme in question indicated its intention to cause unnecessary harm to the honour, reputation and private life of [the respondent] through public disclosure of information that was inaccurate, unverified or lacking in objectivity”. 22. A screening of the programme took place at a hearing on 10 January 2002.", "Besides the extracts from interviews with five patients who considered that they had reason to complain about Dr D.B., the programme comprised: an interview with a medical specialist, who explained the medical problem encountered and the anomalies found in the patients’ medical records; Dr D.B.’s replies to these comments; extracts from interviews with specialists (a doctor belonging to the Council of the Medical Association, a lawyer specialising in medical law, and a Ministry of Health official); and, lastly, footage of a neurosurgical operation, with comments by another doctor. 23. In a second judgment, delivered on 22 March 2002, the Court of Appeal declared the applicant company’s appeal unfounded. It held that broadcasting the scheduled programme would be likely to damage Dr D.B.’s honour and reputation, thereby causing him serious non-pecuniary harm and, as a result, significant pecuniary loss. It concluded that the preventive measure of a ban had met a pressing social need, had been proportionate to the legitimate aim pursued and had been based on relevant and sufficient grounds.", "24. More specifically, the Court of Appeal observed that the programme included footage of a series of interviews with patients on whom Dr D.B. had performed surgery, involving a total of five operations. The interviews were interspersed with explanatory comments: Dr Y.T. discussed the specific cases, the journalist who had spoken to Dr D.B.", "conveyed the answers he had received from him, a Medical Association representative discussed patients’ rights and the difficulties faced by doctors working at several different sites in remaining available to see them, a lawyer explained patients’ legal rights, and a senior adviser to the Minister of Health outlined the legislative initiatives being taken to ensure better protection for patients. 25. The Court of Appeal considered that the part of the programme concerning the five operations and their consequences was significantly more important than the part informing the audience about patients’ rights vis-à-vis their doctor. It took the view that the clarification provided by the journalist during the programme, namely “[s]o, was there a medical error or not? ... We can only ask the question; we cannot give the answer”, was unlikely to draw the audience’s attention to the fact that there was no conclusive proof of a medical error.", "It further noted that there had been no mention of the experience of satisfied patients, and that there was no evidence that the five situations discussed were representative of the experiences of Dr D.B.’s patients as a whole. It observed that the applicant company had not referred to any other “serious” complaint registered by the Medical Errors Association (Erreurs Médicales), and held that the five experiences perceived as failures by the patients did not represent a sufficient number to justify targeting Dr D.B. in a programme relating to patients’ rights in the event of medical errors or negligence. This number appeared all the more insufficient as only one lawsuit had been brought against the doctor concerned. In addition, the Court of Appeal noted that the operations referred to had been very different in nature, so that it was unreasonable to consider them all together, causing the audience to think that they revealed a common pattern of malpractice, which the average viewer, not being aware of the complexity of each individual case, might have tended to do.", "26. Lastly, the Court of Appeal acknowledged that the programme in issue raised serious matters of public concern since it discussed the rights which patients could assert vis-à-vis their doctor, and since there was nothing to suggest that the interviewees had not given an accurate account of their own experiences. However, it considered that the applicant company had lacked objectivity and had not taken into account the manner in which the average viewer was likely to perceive the information, and concluded that the applicant company could not rely on freedom of the press in arguing that the surgery performed by Dr D.B. deserved to be brought to the public’s attention for consumer-protection purposes by giving dissatisfied patients the opportunity to air their views in a programme concerning patients’ rights. In particular, it stated the following: “While it is clear that the programme in issue raises serious matters of public concern since it discusses the rights which patients may assert vis-à-vis their doctor, complaints by patients concerning the quality of treatment provided by a particular surgeon cannot be of interest to the community as a whole unless it can be established with sufficient certainty from the evidence available that the activities of the doctor in question entail serious health consequences.", "Quite apart from the fact that there do not, on the face of it, appear to be a significant number of complaints against [Dr D.B. ], it has not been established that they are legitimate. There is nothing in the material produced to date by RTBF to support the conclusion that the interviewees have reasonable grounds to believe that they were not given the necessary or appropriate treatment, or that their accounts correspond to the objective truth; this is not disputed by RTBF. The brief report by the medical adviser on the complaints submitted to the Medical Errors Association, which contains more questions than answers, cannot serve as proof. No other investigative measures appear to have been taken or to have produced results.", "... Although there is nothing to suggest that the interviewees did not give an accurate account of their own experiences as perceived by them, the credibility that can be attached to the patients’ or their relatives’ accounts is not sufficient, in the absence of conclusive evidence of medical errors or negligence, to justify putting these complaints together to form the main theme of a programme that places [Dr D.B.] in the spotlight and accuses him of professional incompetence and negligence in all respects of his practice (pre-operative counselling, quality of the operation, post-operative follow-up). It should also be noted that the programme lacks objectivity in that the journalist’s comments are systematically aimed at reinforcing or provoking criticism of [Dr D.B.]. ... Public confidence in a doctor’s ability can be destroyed by a television programme that conveys the experiences of a few of his patients or their relatives where, as in the present case, all the experiences reported on are perceived negatively, the opinions expressed during the programme by medical specialists suggest that the surgery performed was unnecessary or inappropriate, there is no coverage of the experiences of satisfied patients and no mention of whether the surgery was of a delicate or routine nature, the degree of risk each operation entailed and the number of operations carried out by the doctor during the relevant period, and no information is provided as to the average failure rates of the types of surgery concerned.", "The damage that could potentially be caused by broadcasting the programme would be exacerbated by the fact that the programme is broadcast during prime time, it ... enjoys a serious reputation and, as a result, the audience will naturally be inclined to believe not only that the interviewees have objective reasons to complain about [Dr D.B.] but also that they represent a significant sample of his patients.” 27. On 12 May 2003 the applicant company appealed on points of law against the two judgments of the Court of Appeal. It alleged a violation of Articles 8, 10 and 17 of the Convention and Articles 19, 22 and 25 of the Constitution. 28.", "In its first ground of appeal it contended that the judgment appealed against, in finding that the first paragraph of Article 25 of the Constitution did not apply to television programmes, had breached the provision in question. It submitted that at a time when radio and television reached a much wider audience than the print media, excluding the former from the scope of Article 25 of the Constitution amounted to depriving that Article of its essential element, namely protection of the freedom to impart ideas as opposed to the instrument used for that purpose. It added that, while it was true that freedom to express opinions was not absolute, it could not be subject to prior restraints but only to punitive measures. There should at the very least have been an opportunity to express the opinion, as the actual wording of Article 19 of the Constitution indicated (“when this freedom is used”). The applicant company inferred from this that Article 19 did not allow the authorities to subject the free expression of opinions on any subject to prior scrutiny, or to prohibit the broadcast of a television programme in advance.", "29. The applicant company submitted a second ground of appeal in the alternative, should it be found that Article 19 of the Constitution did not prohibit all prior restraints on the exercise of freedom of expression and that Article 18, second paragraph, Article 19, second paragraph, and Articles 584 and 1039 of the Judicial Code, read in conjunction with Article 8 of the Convention and Article 22 of the Constitution, constituted a “law” within the meaning of Article 10 § 2 of the Convention. It argued that although Article 10 did not guarantee unrestricted freedom of expression, even with regard to media coverage of matters of serious public concern, and although the exercise of that freedom carried with it duties and responsibilities which were also applicable to the press and were liable to assume significance when there was a risk of undermining the reputation of private individuals or the rights of others, the mere interest – albeit undeniable – of the respondent in protecting his honour and professional reputation was not sufficient to prevail over the important public interest in preserving the freedom of the press to impart information on matters of legitimate public concern. 30. In his submissions, the Advocate-General recommended that the Court of Appeal’s judgments be quashed.", "Following a thorough analysis of the case-law of the Court of Cassation, the Conseil d’Etat and the Administrative Jurisdiction and Procedure Court (Cour d’arbitrage), he submitted that Article 19 of the Constitution guaranteed freedom of expression in general, which could not be hindered by prior censorship. He nevertheless pointed out that such freedom was not absolute and could be limited by general restrictions prescribed by law, provided that the imperative requirements of Article 10 § 2 of the Convention were satisfied. However, the wording of that Article made it impossible in his view to prohibit the dissemination of information on the basis of prior scrutiny, as such a measure would impair the very essence of freedom of expression. The Advocate-General observed that, in the particular context of freedom of expression, the courts’ powers were limited by observance of the Constitution, which prohibited any preventive measure entailing prior restrictions on freedom of expression. 31.", "Nevertheless, the Advocate-General added that since freedom of expression was not an absolute right, it could not prevail over or negate respect for the other rights and freedoms safeguarded by the Constitution and international instruments. He noted in that connection that prior restrictions of a general nature could be framed in law, provided that they satisfied the requirements set forth in Article 10 § 2 of the Convention. Lastly, he expressed the view that Articles 1382 and 1383 of the Civil Code and Articles 18, 19, 584 and 1039 of the Judicial Code satisfied the accessibility and foreseeability requirements laid down by the Court. 32. In a judgment of 2 June 2006, the Court of Cassation dismissed the appeal on points of law.", "33. Firstly, it upheld the Court of Appeal’s judgment as regards the inapplicability of Article 25 of the Constitution, finding that television programmes were not forms of expression by means of printed matter. It held that the requirement for the applicant company to produce the recording of the programme in issue did not breach Article 19 of the Constitution since the urgent-applications judge had provisionally postponed the broadcast of the programme in order to ensure effective protection of the honour, reputation and private life of others. It further held that Articles 22 and 144 of the Constitution, Articles 8 and 10 of the Convention and Articles 584 and 1039 of the Judicial Code, which it had interpreted consistently, allowed the restrictions provided for in Article 10 § 2 of the Convention and were sufficiently precise to enable anyone, if need be with appropriate legal advice, to foresee the legal consequences of his or her acts. 34.", "In particular, the Court of Cassation held as follows: “Under Article 144 of the Constitution, the judiciary is competent both to prevent and to redress unlawful infringements of civil rights. Similarly, the judge dealing with urgent applications, as in the present case, is empowered under Articles 584 and 1039 of the Judicial Code to take any provisional measures in respect of the person responsible for such an infringement that may be necessary to protect personal rights if there are prima facie legal grounds for doing so. In particular, where there is a serious threat of a violation of a right, the urgent-applications judge is authorised by Article 18 § 2 of the Judicial Code to order measures aimed at preventing such a violation.” 35. Secondly, the Court of Cassation held as follows in relation to the objection that the applicant company’s second ground of appeal was inadmissible in that it had failed to allege a violation of Article 584 of the Judicial Code: “In upholding the respondent’s claim, the impugned judgment of 22 March 2002 finds that the respondent ‘has made out ... a sufficient prima facie case for obtaining an interim injunction prohibiting the broadcast of the programme in issue, which clearly and needlessly undermines his honour and reputation’. The urgent-applications judge may order interim measures if there are prima facie legal grounds for doing so.", "In merely examining the parties’ prima facie rights without applying legal rules that could not form a reasonable basis for the interim measures ordered by him, the judge has not overstepped the limits of his powers. The appellant cannot challenge the Court of Appeal’s provisional assessment unless it alleges a violation of Article 584 of the Judicial Code, which it has not done.” II. RELEVANT DOMESTIC LEGISLATION AND CASE-LAW A. The relevant provisions 1. The Constitution 36.", "Articles 19, 22, 25 (former Article 18) and 144 of the Constitution are worded as follows: Article 19 “Freedom of worship, its public practice and freedom to manifest one’s opinions on all matters are guaranteed, but offences committed when this freedom is used may be punished.” Article 22 “Everyone has the right to respect for his private and family life, except in the cases and conditions provided for by law. ...” Article 25 “The press is free; censorship can never be introduced; no payment of security can be demanded of authors, publishers or printers. Where the author is known and resident in Belgium, neither the publisher, nor the printer nor the distributor may be prosecuted.” Article 144 “Disputes about civil rights fall exclusively within the competence of the courts.” 2. The Civil Code 37. The relevant provisions of the Civil Code are worded as follows: Article 1382 “Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” Article 1383 “Everyone shall be liable for the damage he has caused not only by his own acts, but also by his negligence or carelessness.” 3.", "The Judicial Code 38. Articles 18, 19, 584, 1039 and 1080 of the Judicial Code provide as follows: Article 18 “The interest in bringing an action must be vested and present. An action may be allowed where it has been brought, even for declaratory purposes, with a view to preventing a violation of a right that is seriously threatened.” Article 19 “A judgment is final when it exhausts the jurisdiction of the court in respect of a question in dispute, save for appeals provided for by law. The judge may, before passing judgment, order a preliminary measure aimed at investigating the application or settling the parties’ situation on an interim basis.” Article 584 “The President of the Court of First Instance shall, in respect of all matters except those which the law excludes from the jurisdiction of the courts of justice, give a provisional ruling in cases which he recognises as being urgent. ...", "The matter shall be brought before the President by means of an urgent application or, in cases of absolute necessity, an ex parte application. He may, among other things: (1) appoint administrators; (2) order certificates or expert reports for any purpose, even including the assessment of damage and the investigation of its causes; (3) order any measures that are necessary for the protection of the rights of those who are unable to ensure such protection themselves, including the sale of movable property that has been neglected or abandoned; (4) order the examination of one or more witnesses where one of the parties can show that this is of prima facie interest, even with a view to future litigation, provided that it is established that any delay in the hearing will necessarily prompt concerns that it will not be possible to take the evidence at a later stage.” Article 1039 “Orders for interim measures shall be made without prejudice to the merits. They shall be enforceable immediately, notwithstanding an application to set aside or an appeal, and without payment of a security, if the court has not ordered such payment. If a party not appearing in court applies to have the order set aside, it shall not be entitled to appeal against the order made in absentia.” Article 1080 “The appeal on points of law, of which both the original and a copy must be signed by a lawyer authorised to practise in the Court of Cassation, shall include the appellant’s grounds of appeal and submissions, together with an indication of the statutory provisions alleged to have been breached; failure to include any of the above shall render the appeal null and void.” B. Domestic case-law 1.", "The Court of Cassation and the ordinary courts 39. In a judgment of 9 December 1981, the Court of Cassation held[1]: “Neither television programmes nor cable broadcasts are forms of expression by means of printed matter ... Article 18 of the Constitution [current Article 25] is therefore inapplicable to them.” 40. The judgment further stated: “Although Article 14 [current Article 19] of the Constitution, like Article 10 [of the Convention], guarantees freedom to manifest one’s opinions on any subject and accordingly does not allow the authorities to make the exercise of these freedoms subject to prior scrutiny of the opinions in question, these provisions nevertheless do not safeguard this freedom to an unlimited extent and, in particular, do not preclude the regulation, or prohibition, of commercial advertising in cable television broadcasts, where such regulation or prohibition is compatible with the requirements of supranational law. ...", "There is no basis in law for the ground of appeal to the effect that Articles [19] and [25] of the Constitution prohibit all censorship, prior authorisation or advance prohibition of the expression of a particular opinion and its dissemination by any means whatsoever (Article [19] of the Constitution) or, more specifically, through the press (Article [25] of the Constitution).” 41. In a judgment of 29 June 2000, the Court of Cassation ruled on the power of the ordinary courts to prevent, restrict or regulate the distribution of press publications[2]. It held that this power was, in principle, acceptable on the basis of Article 144 of the Constitution, Articles 584 and 1039 of the Judicial Code and Article 1382 of the Civil Code. In the case before it, the urgent-applications judge had issued an injunction – subsequently upheld both on an application by a third party to set it aside and on appeal – ordering the withdrawal from sale of all copies of the weekly magazine Ciné Revue which had published notes confiscated from a judge by the chairman of a parliamentary commission of inquiry on child disappearances; the Court of Cassation held that this did not amount to censorship because the publication had already been in circulation. 42.", "In an order of 17 November 1981, the President of the Brussels Court of First Instance held that “where individual freedoms are concerned, in particular freedom of expression, prohibition of all preventive measures is the rule[3]. Accordingly, the application for an injunction banning, postponing or altering a broadcast is unfounded”. That approach was confirmed in an order made by the same judge on 3 May 1985[4]. 43. Three years later, in an order of 16 November 1988, while not expressly referring to Article 10 of the Convention, the President of the Brussels Court of First Instance relied on Article 584 of Judicial Code to justify prohibiting part of a programme from being broadcast[5].", "44. On 25 October 1989 an ex parte injunction prohibited a broadcast without giving any further details as to the legal basis for that decision[6]. In an order of 12 October 1990 the Brussels urgent-applications judge dismissed an application for an injunction banning a book, relying in particular on Articles 19 and 25 of the Constitution and Article 10 of the Convention while also noting that, depending on the circumstances, he would be entitled under Article 584 of the Judicial Code to take the necessary steps to prevent any irreparable damage[7]. Several weeks later, in an order of 18 December 1990[8], the urgent-applications judge held that Article 584 of the Judicial Code in itself constituted a “law” within the meaning of Article 10 of the Convention. Conversely, in an order of 22 August 1991 he held that there was no basis in Belgian law, as it currently stood, for the judiciary to take preventive measures restricting freedom of expression[9].", "45. In an order of 12 February 1992, while acknowledging that “it is true that no preventive measures as such exist in Belgian law in this sphere” (television), the urgent-applications judge nevertheless held again that Article 584 of the Judicial Code formed a sufficient basis for preventive intervention on his part[10]. Conversely, in an order of 8 January 1993 the urgent-applications judge of the Brussels Court of First Instance held that, in accordance with Article 10 of the Convention, the Belgian legal system prohibited prior restraints[11]. 46. However, six months later, on 16 June 1993, the same urgent-applications division ordered restrictions on a broadcast as a preventive measure[12].", "47. On 12 September 1994 the urgent-applications judge held that Article 584 of the Judicial Code and Article 1382 of the Civil Code, read in conjunction, formed a sufficiently precise legal basis for the purposes of Article 10 of the Convention[13]. On 16 November 1994 the President of the Brussels Court of First Instance issued an ex parte injunction prohibiting a broadcast on the basis of Article 584 of the Judicial Code[14]. 48. Two months later, in an order of 24 January 1995, the President of the Brussels Court of First Instance held, in complete contradiction to his previous decisions, that “as rightly argued by the defendant, Article 584 of the Judicial Code is a general provision conferring jurisdiction”, which could not justify empowering the urgent-applications judge to take the measure sought, and that “the applicant is mistaken in basing ... the application on Article 1382 of the Civil Code, which concerns redress for existing damage”[15].", "He nevertheless considered that Belgian law did indeed contain a “law” within the meaning of Article 10 of the Convention, namely “the other individual rights and freedoms protected by law”. In an order of 6 April 1995 the same judge confirmed his previous decision, while taking care once again to point out that “it is true that, as regards restrictions on freedom of expression, Belgian law provides only for measures entailing retrospective sanctions”[16]. 49. Two weeks later, on 25 April 1995, the urgent-applications judge found that Article 22 of the Constitution, “by way of exception”, constituted the “law” within the meaning of Article 10 of the Convention[17]. 50.", "Ten days later, on 3 May 1995, the same judge held that “on account of the balance to be struck between respect for freedom of expression and respect for the other individual rights and freedoms protected by the law (in the broadest sense), these other rights and freedoms, being enshrined in ‘law’, could be taken to be accessible to the citizens concerned by them and framed in precise terms, and their safeguarding and hence protection could be deemed to constitute restrictions prescribed by law within the meaning of Article 10 [of the Convention]”[18]. He pointed out that Article 8 of the Convention, Article 22 of the Constitution and section 10 of the Copyright Act of 30 June 1994 were all “laws” for the purposes of Article 10 of the Convention. 51. However, less than a year later, in an order of 10 April 1996 on an ex parte application, the President of the Brussels Court of First Instance held, on the basis of Articles 19 and 25 of the Constitution, that the courts were precluded from taking any preventive measures in matters concerning freedom of expression[19]. A fortnight later, on 24 April 1996[20], the urgent-applications judge, while expressly ruling out the application of Article 584 of the Judicial Code, held that he was entitled to take preventive measures under Article 22 of the Constitution and Article 8 of the Convention, which together constituted the “law” within the meaning of Article 10 of the Convention.", "In an order of 18 September 1996[21] he confirmed that position and again justified his power to intervene on a preventive basis under Article 22 of the Constitution and Article 8 of the Convention. 52. Several weeks later, in an order of 6 November 1996, the same judge relied on the two above-mentioned provisions, but nevertheless added that regard should also be had to the right to protection of one’s image, as established by the courts, and to Article 584 of the Judicial Code as to the means of exercising that right[22]. 53. In the meantime, in an order of 18 October 1996, the urgent-applications judge had stated that where there was a risk of a flagrant breach of fundamental rights, there was nothing to prevent the urgent-applications judge from taking interim measures[23].", "However, in an order of 9 January 1997[24], the same urgent-applications division ruled that an application for an injunction prohibiting the publication of information from an ongoing criminal investigation was at variance with Article 25 of the Constitution and declared it unfounded[25]. 54. In a judgment of 30 June 1997, the Brussels Court of First Instance held that “the law is formed by a combined reading of Article 584 of the Judicial Code (which is a law conferring jurisdiction rather than a substantive law for the purposes of Article 10 of the Convention) and Article 8 of the Convention, which provides that everyone has the right to respect for his private and family life, his home and his correspondence”. After noting that “on several occasions ... the urgent-applications judge has held that Belgian domestic legislation did indeed contain a ‘law’ allowing freedom of expression to be restricted for the purposes of Article 10 [of the Convention]”, it nevertheless acknowledged that “the reasoning in decisions supporting intervention by the urgent-applications judge is not unequivocal as regards the provisions constituting the law”[26]. 55.", "In an order of 12 November 1997, the urgent-applications judge developed this argument further, holding that “intervention by the urgent-applications judge as a preventive measure ... is possible under Article 584 of the Judicial Code (a rule of jurisdiction empowering him to intervene in any matter), in conjunction with the provisions relating to the rights and freedoms which would be infringed as a result of freedom of expression, such as, in this instance, Article 8 [of the Convention], Article 19 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution ... [and] the right to protection of one’s image”[27]. 56. In an order of 26 May 1999, the Brussels urgent-applications judge dismissed an application for an injunction banning a book, although neither the parties nor the judge took Article 25 of the Constitution or Article 10 of the Convention into consideration[28]. 57. In an order of 18 October 2001, the urgent-applications judge observed that Article 25 of the Constitution prohibited any prior restraints on freedom of expression, including in audio-visual matters[29].", "Lastly, in an order of 4 June 2003, the Brussels urgent-applications judge ruled that Article 25, which prohibits censorship, was also applicable to the audio-visual media and therefore precluded the courts from taking any kind of preventive measures restricting freedom of expression[30]. 58. In a judgment delivered on 14 January 2005 in the case of Greenpeace Belgium v. Baggerwerken De Cloedt & Zoon and Others, the Court of Cassation explicitly accepted that Article 6 of the Convention was in principle applicable to proceedings concerning urgent applications heard by the President of the Court of First Instance in accordance with Article 584 of the Judicial Code[31]. In a second judgment delivered on the same day, the Court of Cassation did not give an explicit ruling on this issue but nevertheless did not declare a ground of appeal alleging a violation of Article 6 § 1 of the Convention inadmissible on this account. 2.", "The Conseil d’Etat 59. In a judgment of 28 August 2000, the Conseil d’Etat held that Articles 19 and 25 of the Constitution prohibited any prior scrutiny of the use of freedom of expression and freedom of the press[32]. The judgment stated as follows: “The provisions of the Constitution relied on by the applicant [Articles 19 and 25] do not preclude the punishment of press offences or offences committed in connection with the use of freedom of expression. They do, however, prohibit prior scrutiny of the use of these freedoms; in other words ... where printed matter cannot be distributed or opinions expressed until a public authority or other third party has determined whether they are lawful. In the instant case, the Post Office does in fact reserve the right to examine the content of certain forms of election material from the standpoint of the Racism Act and to refuse to distribute them where it concludes that there has been an offence, whether or not it has sought the opinion of the Centre for Equal Opportunities and Combating Racism.", "It therefore carries out prior censorship. Freedom of the press and freedom of expression are devoid of meaning unless they are accompanied by the possibility of distributing printed matter or imparting opinions.” 3. The Administrative Jurisdiction and Procedure Court 60. In a judgment of 6 October 2004 on an application to set aside certain provisions of the Anti-Discrimination Act of 25 February 2003, the Administrative Jurisdiction and Procedure Court – which became the Constitutional Court on 7 May 2007 – held that the prohibition of preventive measures in general and of censorship in particular meant that intervention by the courts in banning the distribution of a publication was possible only where distribution had already begun[33]. It considered that in such cases, the court should ascertain whether the restriction of freedom of expression that might result from the application of section 19(1) of the Act of 25 February 2003 was necessary in the specific circumstances, whether it met a pressing social need and whether it was proportionate to the aim pursued by that provision.", "In accordance with section 19(1) of the Act in question, restrictions could therefore not be imposed on the right of citizens to express their opinions, even in the polemical tone that could typify public debate on social phenomena, and even where such opinions offended, shocked or disturbed the State or any sector of the population. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 76. The applicant company submitted that the advance viewing of the programme in issue by the Brussels Court of Appeal in order to monitor its content before it was broadcast, and the subsequent banning of the programme as a preventive measure, had infringed freedom of expression, freedom of the press and freedom to impart information, all of which were guaranteed by Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 77. The Government contended, as their main submission, that the applicant company had not exhausted domestic remedies in that it had not pursued the proceedings on the merits.", "They submitted that the interim and preliminary nature of orders issued by the urgent-applications judge meant that they did not constitute res judicata with respect to the court dealing with the merits of the case, which accordingly was not bound by what the urgent-applications judge had decided. The urgent-applications judge simply adopted a protective measure preserving the applicant’s rights so that the proceedings on the merits could take their normal course and their outcome would not be deprived of all practical purpose, the aim being essentially to safeguard the future. The injunction issued in the present case by the President of the Court of First Instance had not been a final decision but had been solely intended to address a temporary situation pending the final judgment on the merits; the court hearing the case on the merits remained at liberty to depart entirely from the urgent-applications judge’s conclusions. The injunction had itself specified that its validity was limited to the period before a decision was delivered on the merits, provided that the claimant instituted proceedings on the merits within one month, which Dr D.B. had done.", "78. The Government asserted that the pursuit of proceedings on the merits had constituted – and still constituted – an accessible, effective and adequate remedy for ascertaining whether a judge could prohibit a television broadcast that allegedly infringed the rights of one of the parties. The court dealing with the merits was able not only to revise, vary or revoke the interim injunction by allowing the programme in question to be broadcast, but could also award damages if the measures ordered had been wrongly implemented and had caused harm. Article 747 of the Judicial Code, in its former wording, and former Article 751 of the same Code not only laid down precise time-limits but provided for the possibility for each party to request the prompt preparation of the case for hearing. The Government added that if the applicant company had availed itself of the option of pursuing the proceedings on the merits in parallel with the injunction proceedings, this would have enabled it to act as swiftly as possible and not to suffer any harm as a result of the length of the proceedings required to secure a final decision on the merits.", "79. Although the courts hearing urgent applications and appeals against interim injunctions were bound only by the rules governing the urgent procedure, that did not limit their jurisdiction when hearing appeals against judgments on the merits. Indeed, such appeals were heard by a different bench from the one that had dealt with the urgent application. Moreover, it would be incorrect and hypothetical to maintain that the reasoning set out in the Court of Cassation’s judgment of 2 June 2006 was applicable both to courts dealing with the merits and to the urgent-applications judge. 80.", "Relying on the Editions Plon v. France judgment (no. 58148/00, ECHR 2004-IV), the Government submitted that proceedings on the merits would have provided an opportunity, because of the additional time, to submit other evidence for the court’s assessment concerning the applicant company’s right to freedom of expression, not least because both the interim injunction and the judgment given on appeal had found the broadcast to be defamatory because it had made very little reference, if any, to objective aspects such as lawsuits against Dr D.B. 81. Lastly, the Government submitted that as the applicant company had claimed to be the victim of an unjustified difference in treatment, it should have asked the urgent-applications judge to defer his decision in order to seek a preliminary ruling from the Administrative Jurisdiction and Procedure Court as to the distinction created between the print and audio-visual media in the Court of Cassation’s case-law. 82.", "The applicant company contended that proceedings on the merits did not constitute a remedy in respect of a decision on an urgent application. It was well established in Belgian law that proceedings concerning urgent applications were independent of the main proceedings. Any decision taken on the merits had no retrospective effect on an interim injunction. The varying on appeal of a first-instance decision on an urgent application was the only means by which the decision could be annulled retrospectively, and was also the only basis on which a party could subsequently seek damages for any harm suffered as a result of the execution of the initial decision on the urgent application. Furthermore, the Court had consistently declared applications admissible where they had been lodged after the remedies under the urgent procedure alone had been exhausted.", "83. The applicant company submitted that the Court of Cassation’s judgment of 2 June 2006 had rendered illusory any prospect of success in proceedings on the merits. The judgment had been worded in general terms applicable both in urgent proceedings and in proceedings on the merits. Even if proceedings on the merits were to be counted as a remedy in respect of a decision on an urgent application, it would have been easy to foresee that their outcome would be unfavourable to the applicant company. 84.", "The applicant company asserted that the Government had deliberately neglected to mention that where a case was ready for hearing before either the Brussels Court of First Instance or the Brussels Court of Appeal, the parties still had to wait many months, or even years, before a date was set for the hearing, and then many months more before receiving a decision, as a result of an extremely serious backlog that had disrupted the operation of both courts at the time. The Government had also omitted to point out that they themselves had initiated the repeal of Article 751 of the Judicial Code by the Law of 26 April 2007 amending the Judicial Code with a view to tackling the courts’ backlog, because the Article in question had been ineffective. 85. The applicant company submitted that it had not been required to seek a preliminary ruling from the Administrative Jurisdiction and Procedure Court since it was clear both from the special law concerning that court and from the case-law of the Court of Cassation that the Constitutional Court did not have jurisdiction to review whether the interpretation of the Constitution itself was constitutional. 86.", "Lastly, the applicant company submitted that in the light of the judgment in Micallef v. Malta ([GC], no. 17056/06, ECHR 2009), the Government’s objection of failure to exhaust domestic remedies was devoid of purpose. Since urgent proceedings themselves had to comply with Article 6, they had to be considered independently of the proceedings on the merits, given that there was no guarantee that shortcomings in injunction proceedings could be rectified in the main proceedings. 87. The Court reiterates that, according to its case-law, the only remedies which Article 35 of the Convention “requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient.", "The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied” (see, in particular, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; Dalia v. France, 19 February 1998, Reports of Judgments and Decisions 1998-I; Civet v. France [GC], no. 29340/95, ECHR 1999-VI; and Gautrin and Others v. France, 20 May 1998, § 38, Reports 1998-III). Furthermore, “[t]he rule [of exhaustion of domestic remedies] is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case.", "This means amongst other things that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant” (see Menteş and Others v. Turkey, 28 November 1997, § 58, Reports 1997-VIII). 88. Moreover, an applicant who has availed himself of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). 89.", "In the present case, the Court considers that the applicant company exhausted all the remedies under the urgent procedure since it appealed against the interim injunction issued by the President of the Court of First Instance and subsequently appealed on points of law against the judgment given on appeal. Pursuing the proceedings on the merits, which the opposing party had instituted in order to maintain the injunction, would not have enabled the applicant company – even in the event of a favourable outcome – to repair the damage caused by prohibiting the broadcast. Given that it would not have been possible to reschedule the broadcast within a reasonable time, the proceedings on the merits – even assuming that they could be regarded as a remedy in respect of the injunction proceedings – did not constitute an effective remedy for the purposes of the Convention in the circumstances of the case. As the Court has noted, news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 32, ECHR 1999-VIII).", "90. The Court further observes that in Maurice v. France ((dec.), no. 11810/03, 6 July 2004), where urgent proceedings had been concluded but two sets of proceedings on the merits were still pending, it dismissed a plea of non-exhaustion submitted by the Government, holding that a judgment of the Conseil d’Etat meant that any other remedy that the applicants might attempt was bound to fail. 91. With regard to the Editions Plon judgment (cited above) relied on by the Government, the Court observes that in that case it examined the injunction proceedings separately from the proceedings on the merits in determining whether there had been a violation of Article 10 of the Convention.", "Similarly, in Hachette Filipacchi Associés v. France ((dec.), no. 71111/01, 2 February 2006) it declared the application admissible in a case where the decision complained of had been delivered under the urgent procedure and subsequently upheld by the Court of Appeal and the Court of Cassation, but no proceedings on the merits had been instituted. 92. The Court therefore considers that the applicant company provided the domestic courts with an opportunity to uphold and afford redress for its complaint, that is, the alleged violation of its right to freedom of expression. It accordingly satisfied the requirement of prior exhaustion of domestic remedies set forth in Article 35 § 1 of the Convention.", "The Government’s objection must therefore be dismissed. 93. The Court further notes that the applicant company’s 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 1. Whether there was interference 94. The Court observes that the Belgian courts granted an interim injunction preventing the applicant company from broadcasting part of a television programme covering topical legal matters. The ban was intended to remain in place until a decision was delivered on the merits.", "It is therefore clear – and it was not disputed by the parties – that there was “interference by public authority” with the exercise of the applicant company’s right under Article 10 of the Convention. 95. Such interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims. 2.", "Whether the interference was justified (a) “Prescribed by law” (i) The parties’ submissions 96. The Government contended that it was legitimate to make a distinction between the print and audio-visual media. The latter, particularly in the applicant company’s case, could not enjoy absolute freedom of expression, which would permit retrospective sanctions only. On no account could it be accepted that the only way of safeguarding the right to protection of one’s honour and to respect for private life in Belgium was through ex post facto redress, since this would deprive the urgent-applications judge of the power to prevent serious and imminent damage that could not easily be repaired. 97.", "The fundamental division which the Constitution sought to establish in Belgium between the print and audio-visual media resulted from an interpretation left to the discretion of the relevant authorities. Although the freedom of the audio-visual media was not protected by Article 25 of the Constitution, their freedom of expression and opinion nevertheless enjoyed protection under Article 19; this was in accordance with Article 10 of the Convention. Beyond the sphere of criminal law, the audio-visual media differed from the print media in terms of their nature and effects. The mere existence of a licensing system, linked to the very nature of the audio-visual media, in itself excluded such media from the scope of Article 25 of the Constitution, which did not allow any form of censorship, a concept that indisputably encompassed licensing. As regards effects, the Jersild v. Denmark judgment (23 September 1994, Series A no.", "298) provided a clear illustration of how a prime-time television show could have a wide-ranging impact, thereby infringing the rights of others. 98. The Government submitted that the present case differed from the Leempoel & S.A. ED. Ciné Revue v. Belgium case (no. 64772/01, 9 November 2006) in that it concerned the audio-visual media in relation to Article 19 of the Constitution, rather than the print media in relation to Article 25.", "The extremely severe penalties referred to in the above-mentioned case were not applicable to the audio-visual media, whose freedom of expression was governed exclusively by Article 19 of the Constitution, a provision that did not prohibit censorship in such absolute terms as Article 25 did. That being so, Article 19 allowed a preventive system to operate with regard to freedom of expression, subject to certain fundamental conditions. In order to assess the level of acceptability of a preventive measure in a democratic State, a clear distinction had to be made between arbitrary intervention on the part of the executive and a situation where the courts were called upon to intervene at the request of a party in the context of a dispute between two private individuals, with a limit on the duration of any prior restraints. 99. The Government further submitted that the interference in issue had been “prescribed by law”.", "Not only had the legal provisions on which the domestic courts had based their decisions been accessible, but the Court of Cassation’s position had been entirely foreseeable. Its case-law concerning preventive and restrictive measures affecting the exercise of freedom of expression had been well established since the judgment of 9 December 1981 (see paragraph 39 above) and had been applied on many subsequent occasions. In addition, the Belgian Parliament had had occasion to enact a number of measures entailing general bans on expression, for example through Articles 383 and 378 bis of the Criminal Code. A reading of Article 144 of the Constitution and Article 18, second paragraph, Article 19, second paragraph, and Articles 584 and 1039 of the Judicial Code, taken together, suggested that preventive measures affecting the exercise of freedom of expression could be taken by the urgent-applications judge on an interim basis, in the event of an emergency, to prevent the infringement of a civil right protected by the Constitution and the Convention, after the judge had weighed up the interests at stake, such measures being limited to cases involving flagrant violations of the rights of others. Lastly, the Court of Cassation had taken the view that only the provisions of the Judicial Code and Article 144 of the Constitution counted as the “law” forming the basis for the interference in issue, and not Article 8 of the Convention, which could serve solely as the legitimate aim that could be pursued by an interference with freedom of expression but not as the law on which the interference was based.", "100. The applicant company submitted that neither Articles 22 and 144 of the Constitution, nor Article 8 of the Convention, nor Articles 584 and 1035 of the Judicial Code (nor Articles 18 and 19 of the same Code in the case of proceedings on the merits), nor Article 1382 of the Civil Code constituted a law within the meaning of the Convention authorising the courts to take a preventive measure entailing restrictions. 101. The applicant company asserted that the Government’s arguments that the audio-visual media were subject to a prior licensing process were irrelevant in the present case, given that it agreed with the Advocate-General’s interpretation of the relevant constitutional provisions in his submissions to the Court of Cassation (see paragraphs 30-31 above). The Constitution prohibited all measures entailing prior restraints on freedom of expression that were based on an analysis of the content of the opinion expressed, the interim injunction prohibiting the broadcast in the present case having been issued precisely because its contents might harm Dr D.B.’s interests.", "The applicant company emphasised that the Court of Cassation had consistently taken the view that Article 25 of the Constitution was merely the “corollary”, in relation to freedom of the press, of Article 19, which concerned freedom of expression in general. On that account, Article 25 could not entail a more absolute prohibition on censorship than that enshrined in Article 19. 102. As to whether there was a law allowing prior restraints in Belgium, the applicant company asserted that this could not be the case; otherwise, the law would be in breach of Article 19 of the Constitution. This was illustrated by a judgment of 6 October 2004 in which the Administrative Jurisdiction and Procedure Court, ruling on a complaint against the Anti-Discrimination Act of 25 February 2003, had held that when issuing an injunction, a court should “have regard to the prohibition of preventive measures in general and of censorship in particular under Articles 19 and 25 of the Constitution; this implies that intervention by the courts is possible only where dissemination has already begun”.", "(ii) The Court’s assessment 103. The Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 of the Convention unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. While certainty is desirable, it may bring in its train excessive rigidity; and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos.", "21279/02 and 36448/02, § 41, ECHR 2007-IV). 104. The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation.", "On this account they can be expected to take special care in assessing the risks that such activity entails (see, for example, Cantoni v. France, 15 November 1996, § 35, Reports 1996-V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004-VI). 105. The Court has often pointed out that news is a perishable commodity and that to delay its publication, even for a short period, may well deprive it of all its value and interest. This danger also applies to publications other than periodicals that deal with a topical issue.", "Admittedly, Article 10 does not prohibit prior restraints on publication as such. This is borne out not only by the words “conditions”, “restrictions”, “preventing” and “prevention” which appear in that provision, but also by the Court’s judgments in The Sunday Times v. the United Kingdom (no. 1) (26 April 1979, Series A no. 30), and markt intern Verlag GmbH and Klaus Beermann v. Germany (20 November 1989, Series A no. 165).", "However, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. Accordingly, a legal framework is required, ensuring both tight control over the scope of any bans and effective judicial review to prevent potential abuses (see Association Ekin v. France, no. 39288/98, § 58, ECHR 2001-VIII). 106. The Court observes that in the instant case the Brussels Court of Appeal held that Article 18, second paragraph, Article 19, second paragraph, and Articles 584 and 1039 of the Judicial Code, read in conjunction with Article 8 of the Convention and Article 22 of the Constitution, allowed the courts to take preventive measures restricting freedom to broadcast a programme.", "The Court of Cassation, for its part, after pointing out that Article 22 of the Constitution and Article 8 of the Convention enshrined the right to respect for private and family life, which included the right to protection of one’s reputation and honour, held that the above-mentioned Articles of the Judicial Code permitted the restrictions provided for in Article 10 § 2 of the Convention and were sufficiently precise to enable anyone, if need be with appropriate legal advice, to foresee the legal consequences of his or her acts. 107. As to whether the provisions empowering the urgent-applications judge to ban broadcasts – both in general and as applied in the present case – were accessible or foreseeable in their application, the Court notes that in Belgian law, freedom of expression is set forth firstly in Articles 19 and 25 of the Constitution, which guarantee freedom of opinion and freedom of the press, secondly in Articles 1382 and 1383 of the Civil Code, which punish abuses of this freedom, and thirdly in Articles 18, 19, 584 and 1039 of the Judicial Code, which define the various means of recourse to the judicial authorities to ensure that the rights in question are respected. 108. Nevertheless, the Court notes that Article 19 of the Constitution provides solely for the punishment of offences committed when the freedoms set forth therein are used, including freedom of expression; this implies that only retrospective sanctions can be imposed for errors and abuses committed while exercising this freedom.", "Articles 18, 19, 584 and 1039 of the Judicial Code, and Article 1382 of the Civil Code, read separately or in conjunction with Article 144 of the Constitution, are general provisions concerning the courts’ jurisdiction and do not provide any clarification as to the type of restrictions allowed, their purpose, duration and scope or the possibility of reviewing them. It follows that there is not a sufficiently precise legal framework governing the scope of any bans, as required by the Association Ekin judgment (cited above). 109. The Court considers that the present case differs from both Leempoel & S.A. ED. Ciné Revue (cited above) and De Haes and Gijsels v. Belgium (24 February 1997, Reports 1997-I).", "In the former case, it held that the combined application of Article 1382 of the Civil Code and Article 18, second paragraph, and Article 584 of the Judicial Code should be taken to pursue the aim of limiting the scale of damage already caused by publication of an article, which meant that the measure complained of had been accessible and foreseeable; in the latter case, it held that Article 1382 of the Civil Code could constitute a law within the meaning of Article 10 § 2 of the Convention. Both these cases, however, concerned retrospective restrictions on freedom of the print media. 110. The Court observes that in the judgment of 29 June 2000 in the context of the above-mentioned Leempoel & S.A. ED. Ciné Revue case (see paragraph 41 above), the Court of Cassation accepted that the urgent-applications judge was empowered to restrict or regulate audio-visual broadcasts or the distribution of printed matter on the basis of Article 144 of the Constitution, Articles 584 and 1039 of the Judicial Code and Article 1382 of the Civil Code.", "However, in a judgment of 28 August 2000 (see paragraph 59 above), the Conseil d’Etat held that Articles 19 and 25 of the Constitution prohibited any prior restraints on the use of freedom of expression and freedom of the press or, in other words, the possibility of postponing the distribution of printed matter or the expression of opinions until a public authority or other third party had determined whether they were lawful. Lastly, in a judgment of 6 October 2004, the Administrative Jurisdiction and Procedure Court (see paragraph 60 above) held that the prohibition of preventive measures in general and of censorship in particular meant that intervention by the courts in banning the distribution of a publication was possible only where distribution had already begun. 111. The Court notes more specifically that while Article 584 of the Judicial Code, read separately or in conjunction with Article 1382 of the Civil Code, allows intervention by the urgent-applications judge, there are discrepancies in the case-law as to whether the judge may take preventive measures, particularly as Articles 1382 and 1383 provide for a system of retrospective penalties. 112.", "The Court reiterates that the role of adjudication vested in the courts is to dissipate any doubts that may remain as to the interpretation of norms whose wording is not absolutely precise (see Cantoni, cited above, § 32). 113. There is certainly a body of substantive case-law, in particular decisions by urgent-applications judges, concerning judicial scrutiny of the press in Belgium, but it contains certain discrepancies. While the order issued in the present case stated that it had frequently been held that the urgent-applications judge could take preventive measures, an examination of other orders made on urgent applications indicates that there is no clear and consistent approach among the Belgian courts that would have enabled the applicant company to foresee, to a reasonable degree, the possible consequences of broadcasting the programme in question. The various orders of this kind, even those of different judges of the same court, are notable for the contradictions between them (see paragraphs 39-58 above).", "114. However, judicial scrutiny by the urgent-applications judge of the dissemination of information – by whatever media – involving a balancing exercise between the various competing interests would be inconceivable without a framework laying down precise and specific rules on the application of prior restraints on freedom of expression. In the absence of such a framework, there is a risk that this freedom might be threatened by the proliferation of complaints and the discrepancies in the solutions reached by urgent-applications judges. Firstly, information about television programmes is often provided in advance and published in the press, thus affording individuals who fear that they might face criticism the opportunity to apply to the courts before the scheduled broadcast; and, secondly, the discretion enjoyed by urgent-applications judges and the variety of solutions they have reached might result in a case-by-case approach to preventive measures in the audio-visual sphere, which would not be conducive to preserving the very essence of the freedom to impart information. 115.", "Admittedly, since it does not prevent States from requiring the licensing of audio-visual media, Article 10 of the Convention accepts the principle of a difference in treatment between the audio-visual and print media. However, the distinction made by the Belgian Court of Cassation on the basis of the medium by which information is conveyed – that is, the application of different Articles of the Constitution for the print and audio-visual media – does not appear decisive in the instant case. It does not ensure protection through a strict legal framework for the prior restrictions permitted by the Convention on the dissemination of information, ideas and opinions, especially as the domestic courts have not settled the question of the meaning of the notion of “censorship” as prohibited by Article 25 of the Constitution. In this connection, the Court notes that not only are there discrepancies in the approaches taken by urgent-applications judges in such matters in Belgium; there are also divergences in the case-law of the supreme courts (see paragraph 110 above). It would add that if prior restraints are required in the media sphere, they must form part of a legal framework ensuring both tight control over the scope of any bans and effective judicial review to prevent potential abuses (see Association Ekin, cited above, § 58).", "116. In conclusion, the Court considers that the legislative framework in Belgium, together with the existing case-law of the domestic courts, as applied in the applicant company’s case, did not satisfy the foreseeability requirement under the Convention and did not afford the company the sufficient degree of protection to which it was entitled under the rule of law in a democratic society. There has therefore been a violation of Article 10 of the Convention. 117. Having regard to the above conclusion, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 10 were complied with in the present case.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 118. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 119. The applicant company submitted firstly that it had sustained pecuniary damage as a result of the permanent loss of the programme in issue.", "Since the programme concerned a topical issue and had not been screened within a short time after being produced, it would now never be broadcast. However, it was difficult for the applicant company to put a precise figure on the damage sustained and to produce relevant supporting documents. That being so, the Court considers that the finding of a violation of the Convention will constitute sufficient redress for the damage sustained under this head, and the same applies to the non-pecuniary damage suffered by the applicant company as a result both of the restriction of its freedom to impart information and of the impact which the interference may have had on the programme’s reputation for credibility. 120. In these circumstances, the Court holds that the finding of a violation is sufficient to compensate for the damage sustained by the applicant company.", "B. Costs and expenses 121. The applicant company claimed 24,261.70 euros (EUR) in respect of its costs and expenses before the Belgian courts and EUR 17,752.70 for those incurred before the Court. 122. The Government left the matter to the Court’s discretion.", "123. 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 relation to the violations it has found. In the present case, the Court notes that the applicant company has produced detailed evidence of its costs before the domestic courts and the Court. It therefore decides to award it the sum claimed under this head in full, namely EUR 42,014.40, plus any tax that may be chargeable to it. C. Default interest 124.", "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; ... 3. Holds that there has been a violation of Article 10 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the pecuniary and non-pecuniary damage sustained by the applicant company; 5.", "Holds (a) that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 42,014.40 (forty-two thousand and fourteen euros and forty cents) in respect of costs and expenses, plus any tax that may be chargeable to the applicant company; (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 company’s claim for just satisfaction. Done in French, and notified in writing on 29 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley Naismith Danutė JočienėRegistrar President [1]1. Pasicrisie belge (Pas.", "), 1982, I, 482. [2]2. Journal des Procès (Jour. Proc. ), 2000, no.", "398, p. 25. [3]3. Brussels Court of First Instance (CFI) (civil), urgent application, 17 November 1981, Journal des tribunaux (JT), 1982, p. 374. [4]1. Brussels CFI (civil), urgent application, 3 May 1985, Revue de jurisprudence de Liège, Mons et Bruxelles (JLMB), 1988, p. 1216.", "[5]2. Brussels CFI (civil), urgent application, 16 November 1988, JLMB, 1988, p. 1443, Cahiers de droit judiciaire (Cah. Dr. Jud. ), 1991, p. 172.", "[6]3. Brussels CFI (civil), President, 25 October 1989, Jour. Proc., 1989, no. 159, p. 30, Cah. Dr.", "Jud., 1991, p. 174. [7]4. Brussels CFI (civil), 12 October 1990, Jour. Proc., 1990, no. 181, p. 27, and note by F. Jongen; Cah.", "Dr. Jud., 1991, p. 175. [8]5. Brussels CFI (civil), urgent application, 18 December 1990, Cah. Dr.", "Jud., 1991, p. 176. [9]6. Brussels CFI (civil), urgent application, 22 August 1991, Cah. Dr. Jud., 1991, p. 177.", "[10]7. Brussels CFI (civil), urgent application, 12 February 1992, unreported, H.I.T.S./RTBF, Rôle des référés (RR) no. 53.001. [11]8. Brussels CFI (civil), urgent application, 8 January 1993, unreported, Moortgat et Cts/BRTN, RR nos.", "55.063 and 55.066. [12]1. Brussels CFI (civil), urgent application, 16 June 1993, Rechtskundig Weekblad (RW), 1993/1994, p. 619, with a note by J. Ceuleers, “Kan de rechter in kort geding preventief ingrijpen in een voorgenomen televisieuitzending?”, p. 620. [13]2. Brussels CFI (civil), urgent application, 12 September 1994, unreported, Chez Pascal et Cts/RTBF, RR no.", "94/1383/c. [14]3. Brussels CFI (civil), President, 16 November 1994, unreported, Van Bockstael, RR no. 94/10974/b. Following an application by a third party to set the injunction aside, it was lifted on the ground that there was no extreme urgency (Brussels CFI (civil), urgent application, 5 January 1995, unreported, Van Bockstael/RTBF, RR no.", "94/1855/c). [15]4. Brussels CFI (civil), urgent application, 24 January 1995, unreported, Van Bockstael/RTBF, RR no. 95/73/c. [16]5.", "Brussels CFI (civil), urgent application, 6 April 1995, Jour. Proc., no. 284, 26 May 1995, p. 23, and note by M. Hanotiau, “Audiovisuel, presse et juge des référés: clarté et brouillard”, p. 25. [17]6. Brussels CFI (civil), urgent application, 25 April 1995, unreported, Sierra 21 et Cts/RTBF, RR no.", "5/685/c. [18]1. Brussels CFI (civil), urgent application, 3 May 1995, unreported, Lambert et Cts/RTBF, RR no. 95/740/c. [19]2.", "Brussels CFI (civil), President, 10 April 1996, unreported. [20]3. Brussels CFI (civil), urgent application, 24 April 1996, unreported, Sterop et Cts/RTBF, RR no. 589/c. [21]4.", "Brussels CFI (civil), President, 18 September 1996, unreported. [22]5. Brussels CFI (civil), urgent application, 6 November 1996, Jour. Рroc., 1996, no. 316, pp.", "31 et seq. [23]6. Brussels CFI (civil), urgent application, 18 October 1996, Auteurs et Média (A&M), 1997, p. 83. On appeal, the court held that there was no longer any urgency since no proceedings had been instituted on the merits for the broadcast to be prohibited. It therefore declared the original application unfounded on the ground that it had ceased to be urgent (Brussels, 19 November 1997, A&M, 1998, p. 42).", "[24]7. Brussels CFI (civil), urgent application, 9 January 1997, A&M, 1997, p. 197. [25]1. “Overeenkomstig artikel 25 van de Grondwet kan de censuur van drukpers niet worden ingevoerd. Deze vordering komt voor als ongegrond.” [26]2.", "Brussels CFI (civil), urgent application, 30 June 1997, JT, 1997, p. 710, A&M, 1998, p. 264. [27]3. Brussels CFI (civil), urgent application, 12 November 1997, JLMB, 1998, p. 775. [28]4. Brussels CFI (civil), urgent application, 26 May 1999, A&M, 2000, p. 108.", "[29]5. Brussels CFI (civil), urgent application, 18 October 2001, unreported, Proximedia/VRT, RR no. 2011/1713/c. [30]6. Brussels CFI (civil), urgent application, 4 June 2003, JLMB, 2004, pp.", "790-93. [31]1. Pas., I, 76, no. 24. [32]2.", "A&M, 2000, p. 450. [33]3. No. 157/2004, B.75." ]
[ "FOURTH SECTION CASE OF IŻYKOWSKA v. POLAND (Application no. 7530/02) JUDGMENT STRASBOURG 28 September 2004 FINAL 28/12/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Iżykowska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrsV.", "Strážnická,MrJ. Casadevall,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki, judges,and Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 7 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 7530/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Maria Iżykowska (“the applicant”), on 5 August 2001. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "On 8 July 2003 the President of the Fourth Section 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 was 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 Warszawa. 5.", "On 15 October 1993 the Warsaw District Court (Sąd Rejonowy) declared that the heirs to the applicant late mother's estate were the applicant, her father, and her sister. The estate consisted of a house and a plot of land located in Warsaw. 6. On 14 November 1994 the applicant's sister (“the petitioner”) instituted non-contentious proceedings (postępowanie nieprocesowe) before the Warsaw District Court (Sąd Rejonowy w Warszawie) in which she requested that the co-ownership of the house and the land be dissolved. 7.", "On 22 March 1995 the court held the first hearing. 8. Subsequently, hearings were held on 1 February, 7 March and 15 October 1996. 9. On 6 January 1997 the court, sitting in camera, decided to obtain an expert opinion.", "On 15 February 1997 an expert prepared the opinion. On 21 February 1997 the District Court, sitting in camera, gave a decision regarding the fee for the expert. 10. Between 16 October 1996 and 28 October 1997 no hearings were held. 11.", "The hearings scheduled for 29 October and 16 December 1997 were adjourned because of the absence of the petitioner. 12. Subsequently, hearings were held on 4 February, 19 June and 31 July 1998. 13. On 22 October 1998 the court ordered a second expert opinion.", "The opinion was submitted to the court on 20 January 1999. 14. Between 1 August 1998 and 15 April 1999 no hearings were held. 15. Hearings scheduled for 16 April, 2 June, and 9 September 1999 were adjourned because of the absence of the petitioner and expert witnesses.", "16. On 22 November 1999 the District Court held the next hearing at which it ordered that a fourth expert opinion be prepared. 17. Between 23 November 1999 and 8 November 2001 no hearings were held. 18.", "Subsequently, the court held hearings on 9 November and 5 December 2001 as well as 21 February 2002. 19. On 24 January and 7 April 2003 the Warsaw District Court held hearings. 20. The proceedings are pending.", "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, 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...” 22. The Government contested that argument. 23.", "The period to be taken into consideration began on 14 November 1994 and has not yet ended. It follows that the proceedings have so far lasted 9 years and 10 months. A. Admissibility 24. 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 25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "26. 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). 27. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 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 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29.", "The applicant claimed 304,657 Polish zlotys (PLN) in respect of pecuniary and 15,000 euros (EUR) in respect of non-pecuniary damage. 30. The Government asked the court to dismiss the applicant's claims in respect of pecuniary damage. The Government further submitted that the applicant's claims in respect of non-pecuniary damage were excessive. 31.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 8,500 under that head. B. Costs and expenses 32.", "The applicant also claimed PLN 1,368.75 for the costs and expenses incurred before the Court. 33. The Government left the matter to the Court's discretion. 34. 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 300 covering costs and expenses for the proceedings before the Court. C. Default interest 35. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 8,500 (eight thousand five hundred euros) in respect of non-pecuniary damage and EUR 300 (three hundred euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 28 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosNicolas Bratza Deputy RegistrarPresident" ]
[ "GRAND CHAMBER CASE OF GROSS v. SWITZERLAND (Application no. 67810/10) JUDGMENT STRASBOURG 30 September 2014 This judgment is final. In the case of Gross v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President,Josep Casadevall,Ineta Ziemele,Mark Villiger,Isabelle Berro,Boštjan M. Zupančič,Alvina Gyulumyan,Khanlar Hajiyev,Dragoljub Popović,Ledi Bianku,Nona Tsotsoria,Ann Power-Forde,Vincent A. De Gaetano,Linos-Alexandre Sicilianos,Helen Keller,Helena Jäderblom,Johannes Silvis, judges,and Erik Fribergh, Registrar, Having deliberated in private on 5 March and 27 August 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "67810/10) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Ms Alda Gross (“the applicant”), on 10 November 2010. 2. The applicant was represented by Mr F.T. Petermann, a lawyer practising in St Gallen, Switzerland. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, Head of the Human Rights and Council of Europe Section of the Federal Ministry of Justice.", "3. Relying on Article 8 of the Convention, the applicant alleged, in particular, that her right to decide how and when to end her life had been breached. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 5 January 2012 notice of the application was given to the Government.", "It was also decided to grant the case priority (Rule 41). On 14 May 2013 a Chamber, composed of Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić, Helen Keller, judges, and Stanley Naismith, Section Registrar, having deliberated in private, delivered a judgment in which it held by a majority that there had been a violation of Article 8 of the Convention. The joint dissenting opinion of Judges Raimondi, Jočienė and Karakaş was annexed to the judgment. 5. In a letter of 12 August 2013, the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73.", "A panel of the Grand Chamber granted the request on 7 October 2013. 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7. The applicant and the Government each filed further observations (Rule 59 § 1).", "In their memorial dated 7 January 2014, the Government informed the Court that the applicant had died on 10 November 2011. The applicant’s counsel submitted comments in reply. 8. In addition, third-party comments on the merits of the application were received from: the Alliance Defending Freedom (formerly known as the Alliance Defense Fund), an association based in the United States of America dedicated to protecting the right to life on a worldwide basis, represented by Mr P. Coleman; the European Centre for Law and Justice, an association based in France specialising in questions of bioethics and the defence of religious freedom, represented by Mr G. Puppinck; Americans United for Life, an association based in the United States of America dedicated to protecting the right to life from conception until natural death, represented by Mr W.L. Saunders; and Dignitas, an association based in Switzerland whose objective is to ensure that its members receive end-of-life care and die with human dignity, represented by Mr L.A. Minelli.", "All of the third-party interveners had been given leave by the President to intervene in the written procedure before the Chamber (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1931 and died on 10 November 2011. 10. For many years, the applicant had expressed the wish to end her life.", "She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be prepared to provide her with a medical prescription for the lethal drug. 11. On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment.", "From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the ground that he did not want to confuse the roles of medical expert and treating physician. 12. By letters of 5 November and 1 December 2008 and 4 May 2009, the applicant’s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. 13.", "On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant’s request. 14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal.", "It considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription.", "Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of undergoing a thorough medical examination and of obtaining a medical prescription. 15. On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant.", "It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical-ethical guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed a wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with the “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was prepared to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription. 16.", "On 10 November 2010 counsel for the applicant lodged an application with the Court. 17. On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified.", "The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context. 18. The Court was not made aware of the applicant’s death until 7 January 2014 (see paragraph 19 below). THE LAW THE GOVERNMENT’S PRELIMINARY OBJECTION A. The Government’s submissions to the Grand Chamber 19.", "In their memorial to the Court of 7 January 2014, the Government stated that when preparing their memorial they had taken the precaution of enquiring about the applicant’s situation at the municipality where she lived and had found out that she had died on 10 November 2011. Thus, by the time the Chamber had adopted its judgment in this case, she had been dead for approximately one and a half years. Relying on the Court’s decision in the case of Predescu v. Romania (no. 21447/03, § 25, 2 December 2008), they requested the Court to declare the application inadmissible on the ground of abuse of the right of petition, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 20.", "The Government submitted that the applicant’s counsel had not only failed to inform the Court of the applicant’s death – which he should have done at the latest when the Court’s Registry provided him with the statement of facts, assuming her to be alive – but had also misled the Court in his submissions by giving the impression that the applicant was still alive. 21. In the Government’s view, the conduct of the applicant’s counsel had been such as to mislead the Court as regards an essential aspect for its examination of the application. B. Counsel for the applicant’s submissions to the Grand Chamber 22.", "The applicant’s counsel responded that he had not had any personal contact with his client since January 2010 and had only become aware of her death on 9 January 2014, when he had received a copy of the Government’s memorial of 7 January 2014. 23. Counsel explained that the applicant had expressed her wish that counsel should send any further correspondence to Mr F., a retired pastor who also voluntarily worked for the assisted-suicide association EXIT. The reason for this arrangement was, inter alia, that receiving letters from her counsel directly had caused her stress and that she therefore needed assistance from a person of trust. Thus, after her appeal to the Federal Supreme Court in January 2010, it had been agreed that Mr F. would bring any communications to her personally and explain them to her.", "Counsel submitted that he had complied with those instructions. 24. Upon receipt of the Government’s submissions on 9 January 2014, counsel had immediately contacted Mr F., who had explained to him that he had refrained from notifying him of the applicant’s death at the applicant’s express request because she feared that the ongoing proceedings would otherwise be discontinued. In the summer of 2011, when it had become clear that the applicant would end her life, she had informed Mr F. that counsel had told her that if she died during the proceedings the case would be at an end, and that she did not want this to happen as she wanted “to open the way for other people in her situation”. Mr F. had taken the view that a spiritual adviser’s professional duty did not permit disclosure against the applicant’s express wishes.", "Counsel for the applicant further stated that he found it extremely regrettable that Mr F. had not informed him immediately of the applicant’s death, as counsel would have duly informed the Court and would have made an application for the proceedings to be continued nevertheless. 25. Relying on the Court’s case-law in previous cases where an applicant had died or had expressed the wish to withdraw his or her complaint during the proceedings before the Commission or the Court (counsel referred to the Court’s judgments in Scherer v. Switzerland, 25 March 1994, Series A no. 287, and Tyrer v. the United Kingdom, 25 April 1978, § 21, Series A no. 26), he argued that upon lodging an application with the Convention institutions the latter became master of the proceedings.", "It was thus for the Court to decide whether the proceedings in a given case should be continued. The decisive factor in that regard was whether, in the Court’s view, the case raised general questions of public interest that required further examination. 26. In the instant case, counsel for the applicant invited the Court to continue the proceedings on the ground that the case raised substantive questions regarding compliance with the Convention which required further examination in the public interest. “Euthanasia” was a contentious and much-debated issue in many European countries.", "Cases of this nature were generally brought by persons who were elderly and/or ill. If proceedings were to be systematically abandoned when such a person died, the questions raised by such cases could never be decided by the Court. C. The Court’s assessment 27. Article 35 § 3 (a) of the Convention provides: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; ...” 28. The Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996‑IV; Varbanov v. Bulgaria, no.", "31365/96, § 36, ECHR 2000‑X; Rehak v. the Czech Republic (dec.), no. 67208/01, 18 May 2004; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; Kerechasvili v. Georgia (dec.), no. 5667/02, ECHR 2006‑V; Miroļubovs and Others v. Latvia, no.", "798/05, § 63, 15 September 2009; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Predescu, cited above, §§ 25‑26; and Kowal v. Poland (dec.), no.", "2912/11, 18 September 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Centro Europa 7 S.r.l. and Di Stefano, cited above, and Miroļubovs and Others, cited above). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Al-Nashif v. Bulgaria, no. 50963/99, § 89, 20 June 2002; Melnik v. Ukraine, no.", "72286/01, §§ 58-60, 28 March 2006; Nold v. Germany, no. 27250/02, § 87, 29 June 2006; and Centro Europa 7 S.r.l. and Di Stefano, cited above). 29. Turning to the circumstances of the instant case, the Court notes at the outset that in her application lodged with the Court on 10 November 2010 the applicant complained, relying on Article 8 of the Convention, that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end.", "It further observes that on 5 January 2012 notice of her application was given to the respondent Government and that on 14 May 2013 the Chamber delivered a judgment in which it held (by four votes to three) that there had been a violation of Article 8 of the Convention, a finding which was based on the assumption that the applicant was still alive (see paragraphs 65-67 of the Chamber judgment). 30. However, it was later revealed that in the meantime, on 24 October 2011, the applicant had obtained a medical prescription for a lethal dose of sodium pentobarbital and that on 10 November 2011 she had ended her life by imbibing the prescribed substance. 31. This development was not brought to the Court’s attention by the applicant or her counsel but by the Government, in their memorial of 7 January 2014, after the case had been referred to the Grand Chamber in accordance with Article 43 of the Convention.", "When preparing their memorial, the Government had enquired about the applicant’s situation and had found out about the fact and the circumstances of her death. 32. The Court has taken note of the explanation submitted in reply by counsel for the applicant that he had been unaware of his client’s death because he had only had contact with her via an intermediary, Mr F., who – at her request – had purposely refrained from notifying counsel of her death. According to Mr F., this was because of her fear that the disclosure of such a fact might prompt the Court to discontinue the proceedings in her case. As her spiritual adviser he had considered himself bound by a professional duty of confidentiality preventing him from disclosing that information against her wishes.", "33. However, in the Court’s view, and bearing in mind the particular nature of the present case, the fact that counsel for the applicant had no direct contact with his client but agreed to communicate with her indirectly through an intermediary gives rise to a number of concerns regarding his role as a legal representative in the proceedings before it. In addition to the duties of an applicant to cooperate with the Court (see Rule 44A of the Rules of Court; see also Rule 44C, “Failure to participate effectively”, including the possibility of drawing inferences from the failure of a party “to divulge relevant information of its own motion”) and to keep it informed of all circumstances relevant to his or her application (see Rule 47 § 7, former Rule 47 § 6), a representative bears a particular responsibility not to make misleading submissions (see Rule 44D). 34. It transpires from her counsel’s explanation that the applicant had not only failed to inform him, and by implication the Court, of the fact that she had obtained the required medical prescription, but had also taken special precautions to prevent information about her death from being disclosed to counsel and eventually to the Court in order to stop the latter discontinuing the proceedings in her case.", "35. Against this background, the Grand Chamber considers that the fact and the circumstances of the applicant’s death did indeed concern the very core of the matter underlying her complaint under the Convention. It is also conceivable that had these facts been known to the Chamber they might have had a decisive influence on its judgment of 14 May 2013 concluding that there had been a violation of Article 8 of the Convention (see, mutatis mutandis, Rule 80 of the Rules of Court; Pardo v. France (revision – admissibility), 10 July 1996, §§ 21-22, Reports 1996‑III; Pardo v. France (revision – merits), 29 April 1997, § 23, Reports 1997‑III; and Gustafsson v. Sweden (revision – merits), 30 July 1998, § 27, Reports 1998‑V). However, there is no need for the Grand Chamber to speculate on this since in any event, in accordance with Article 44 § 2 of the Convention, the Chamber’s judgment of 14 May 2013 has not become final. 36.", "According to Mr F., the applicant’s motive for withholding the relevant information had been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. While such a motive may be understandable from the applicant’s perspective in the exceptional situation in which she found herself, the Court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant intended to mislead the Court on a matter concerning the very core of her complaint under the Convention. 37. Accordingly, the Court upholds the Government’s preliminary objection that the applicant’s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. FOR THESE REASONS, THE COURT Holds, by nine votes to eight, that, by reason of the applicant’s abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention, the application is inadmissible.", "Done in English and in French, and notified in writing on 30 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik Fribergh Dean Spielmann Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Silvis; (b) joint dissenting opinion of Judges Spielmann, Ziemele, Berro, Zupančič, Hajiyev, Tsotsoria, Sicilianos and Keller. D.S.E.F. CONCURRING OPINION OF JUDGE SILVIS The applicant ended her life by imbibing a lethal dose of sodium pentobarbital on medical prescription while a complaint concerning the denial of her right to obtain such a prescription was pending before the Court. Without having been informed about the change of circumstances, including her death, the Chamber dealt with the case and found a violation of Article 8 of the Convention, on account of a lack of clarity in Swiss law, one and a half years after the applicant had died.", "However, the Chamber’s judgment never became final since the case was referred to the Grand Chamber. It was only after that referral that the Court was notified that the applicant had already obtained the lethal drugs and had subsequently died. Counsel for the applicant had not informed the Court of this, explaining that he had not even been aware of the change in circumstances of his client. I voted in favour of declaring the application inadmissible on the ground of abuse of the right of petition. To my mind, the alternative of just striking the case out would not have sufficiently emphasised the importance of keeping the Court fully informed of new circumstances concerning the core of a complaint.", "I would have preferred the Grand Chamber not to establish that the applicant herself had deliberately misled the Court. To my mind, there was no need to establish with “sufficient certainty” the applicant’s personal intentions, assuming – implicitly – that she herself was fully aware of the requirements of the Rules of Court. It is preferable for the Court not to enter into the particular way clients and their professional representatives before the Court communicate with each other, as it is clearly set out in Rule 44C that they must participate effectively. Knowledge of the client’s circumstances could therefore legitimately be imputed to her counsel. As a professional, acting on behalf of his client, counsel bears the responsibility of disclosing relevant new information (Rule 47 § 6 until 6 May 2013, now Rule 47 § 7).", "When this responsibility is not adequately assumed, without sufficient explanation, and the new information in question concerns the core of the complaint, then I would think that the conclusion that there has been an abuse of the right of petition should inevitably follow (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008; and Kowal v. Poland (dec.), no. 2912/11, 18 September 2012). Why did the Court seek to establish whether the applicant herself had deliberately misled the Court?", "This appears to be a consequence of the Court’s earlier case-law restricting findings of an abuse of the right of petition to cases where there has been an underlying intention on the part of an applicant to mislead. By thus setting the threshold for finding an abuse of the right of petition unnecessarily high in my view, even in an extraordinary case like this, the Grand Chamber has forced itself to undertake the rather speculative exercise of establishing with “sufficient certainty” her state of mind and, implicitly, her procedural legal awareness. In Nold v. Germany (no. 27250/02, § 87, 29 June 2006) the applicant’s intention to knowingly mislead the Court was not yet a necessary condition for finding an abuse of the right of application, since that condition was still subject to exceptions in extraordinary cases as in earlier jurisprudence. In the case of Centro Europa 7 S.r.l.", "and Di Stefano v. Italy ([GC], no. 38433/09, § 97, ECHR 2012), the Grand Chamber recently found that withholding information could amount to abuse of the right of petition, but that “even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty”. It seems, as has been confirmed in the present judgment, that the Grand Chamber has closed the door to the possibility of reaching a finding of abuse of the right of petition in extraordinary cases without explicitly establishing “with sufficient certainty” that the applicant intended to mislead the Court. I regret this restriction and would have favoured a change in the opposite direction since rules of procedural “hygiene” are weakened when made exclusively dependent on subjective motives as opposed to objectively verifiable reasons. JOINT DISSENTING OPINION OF JUDGES SPIELMANN, ZIEMELE, BERRO, ZUPANČIČ, HAJIYEV, TSOTSORIA, SICILIANOS AND KELLER 1.", "While we agree that the Court cannot condone the behaviour of the applicant’s representatives in this case, we are unable to share the view of the majority of the Grand Chamber that the present application is inadmissible under Article 35 § 3 (a) of the Convention on account of an abuse of the right of individual application. Unlike the majority, we consider that the threshold required for a finding of abuse of the right of individual petition has not been reached. 2. The Court’s case-law on the abuse of rights is clear. Applications can only be regarded as an abuse of the right of individual application in exceptional circumstances.", "The Court has, for instance, held that “except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts” (see Knyazev v. Russia, no. 25948/05, § 79, 8 November 2007, and Aleksanyan v. Russia, no. 46468/06, § 117, 22 December 2008). 3. In the present case, it is necessary to determine whether the behaviour of the applicant’s lawyer, of Mr F., or of the applicant herself is decisive.", "4. In a previous case, the Court found that counsel’s negligent lack of awareness of the commutation of their client’s life sentence and their failure to inform the Court once they learned of this fact constituted abuse of the right of individual petition (see Bekauri v. Georgia (preliminary objection), no. 14102/02, §§ 23-25, 10 April 2012). In another case, in which a supposed applicant had already died at the time of the submission of his application to the Court, and his signature on the application form had in fact been forged by his wife, the Court found that the forgery and the deliberate concealment of the applicant’s death constituted an abuse of the right of individual petition and that the application should accordingly be rejected pursuant to Article 35 § 3. In that judgment, however, the Court held that “an application may only be rejected as abusive within the meaning of Article 35 § 3 of the Convention in extraordinary circumstances, such as if an application was deliberately grounded on a description of facts omitting or distorting events of central importance” (see Andrianova and Others v. Ukraine, no.", "10319/04, § 9, 12 December 2013). However, the circumstances of the present case do not indicate any intent to mislead the Court on the part of the applicant’s counsel, who – at the applicant’s request – had no direct contact with his client. 5. Secondly, we note that, according to the Court’s case-law, a finding of abuse of the right of individual petition is only possible if an applicant intentionally misled the Court, “especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information” (see A.L. v. Poland, no.", "28609/08, § 47, 18 February 2014, with further references). We consider that this intent must be established with a sufficient degree of certainty (see Miroļubovs and Others v. Latvia, no. 798/05, § 63, 15 September 2009) and, at least to a certain degree, be attributable to the individual applicant in a given case (see, by contrast, Bekauri, cited above, §§ 21-25). In order to penalise an abuse of process by an applicant’s representatives, the Court can use a tool more closely tailored to such situations by banning them from representing future applicants (Rule 36 § 4 (b) of the Rules of Court; see also Petrović v. Serbia (dec.), nos. 56551/11 and 10 others, 18 October 2011).", "6. The majority accepted that the necessary intent was present owing to the fact that the applicant’s intermediary, Mr F., “purposely refrained” from informing the applicant’s counsel of her death (see paragraph 32 of the present judgment). The majority also expressed concern regarding the fact that the applicant’s counsel had failed to maintain direct contact with her (see paragraph 33 of the present judgment). However, the decisive factor here should not be the intent of the applicant’s representatives. Whatever their role in concealing the applicant’s death from the Court, this cannot be attributed to the applicant.", "7. Furthermore, we draw attention to the pejorative nature of the majority’s finding. The inadmissibility of an application due to the abuse of the right of individual petition carries a certain stigma. Ms Gross, deceased, was unable to submit her own views regarding the majority’s assessment and her memory is now burdened with the stigmatising effect of the present judgment. 8.", "Lastly, we are mindful of the fact that the qualification “abuse of rights” is reserved for cases which cause the Court to “waste its efforts on matters obviously outside the scope of its real mission, which is to ensure the observance of the solemn, Convention-related, engagements undertaken by the States Parties” (see Petrović, cited above). In the present context, we note that the number of assisted suicides is high and unlikely to abate in the near future. In the case of Switzerland, for example, the number of foreign residents who travel to the country to seek assistance in taking their own lives is not negligible. Accordingly, we do not consider the Court’s efforts to have been wasted: the issue of assisted suicide is likely to engender future applications to the Court and thus certainly merits examination. We observe that there is undoubtedly a European dimension to this issue: travel to Switzerland by people wishing to end their lives, for the purpose of availing themselves of the services of assisted-suicide organisations, has triggered heated discussions in various Contracting States.", "[1] 9. In our view, the Court should have expressed serious doubts as to the question whether the applicant intended to mislead the Court, but should have ultimately left this issue open as the application could have been struck out under Article 37 § 1 (c) of the Convention. The applicant passed away without leaving any heirs or descendants. Under the specific circumstances of the case, the Court should have decided that it was no longer justified to continue its examination within the meaning of Article 37 § 1 (c), without qualifying Ms Gross’s behaviour as an abuse of rights. [1].", "See, for example, the debate in the United Kingdom surrounding the draft Assisted Dying Bill [HL] 2014-2015, which is currently before the House of Lords." ]
[ "THIRD SECTION CASE OF AKYÜZ v. TURKEY (Application no. 35837/02) JUDGMENT STRASBOURG 29 November 2007 FINAL 31/03/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Akyüz v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrC.", "Bîrsan,MrR. Türmen,MrsE. Fura-Sandström,MrDavid Thór Björgvinsson,MrsI. Ziemele,MrsI. Berro-Lefèvre, judges,and Mr S. Quesada, 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. 35837/02) 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, Mrs Naciye Akyüz (“the applicant”), on 22 May 2002. 2. The applicant, who had been granted legal aid, was represented by Mrs Nuray Demir, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 20 December 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 1926 and lives in Ankara. 5. On 23 January 1975 the applicant bought part of a plot of land (plot no. 98) in the Çankaya District of Ankara. In implementation of a reconstruction plan (imar şuyulandırılması), on 21 January 1981 a part of the applicant's plot (173.92 sq.", "m.) was joined to another plot which had been used by the Ministry of Defence since 1962. This plot was given the number 5965/1 and registered in the applicant's name. 6. Since this land was occupied by the Ministry of Defence, the applicant filed various petitions requesting the Ministry to expropriate it. On 6 September 1989 the Ministry informed the applicant that her land would be expropriated in the coming years.", "7. On 10 November 1999, relying on Article 38 of Law no. 2942, the Ministry of Defence lodged an application with the Ankara Civil Court of General Jurisdiction for the annulment of the title deed of the applicant to plot no. 5965/1 and its registration in the Treasury's name. In response, the applicant lodged an application with the same court for compensation for the de facto expropriation.", "On an unspecified date, the case files were joined. 8. Before the court, the Ministry of Defence submitted that it had occupied the disputed plot of land since 1962 and that, therefore, it should be registered under its name pursuant to Article 38 of Law no. 2942. In reply, the applicant stated that the date of de facto expropriation in respect of her plot of land was 21 January 1981 and that, therefore, Article 38 of Law no.", "2942 was not applicable in her case. 9. On 19 December 2000 the Ankara Civil Court of General Jurisdiction annulled the title deed of the applicant and ordered that the land be registered in the name of the Treasury. The court dismissed the applicant's request for compensation on the ground that it was time-barred. It held that the Ministry of Defence had had de facto possession of the property in question since 1962, and that the applicant should have brought a case within twenty years from this date in accordance with Article 38 of Law no.", "2942. 10. On 4 June 2001 the Court of Cassation upheld the judgment of the first-instance court. The applicant's request for the reversal of its decision was dismissed by the Court of Cassation on 12 October 2001. The applicant was notified of this decision on 22 November 2001.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 11. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 12. The applicant complained that the deprivation of her land without compensation amounted to a 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.” 13. The Government contested that argument. A. Admissibility 14. The Government submitted several preliminary objections. Firstly, they alleged that the Court had no jurisdiction ratione temporis to examine the case, since the reconstruction project had taken place in 1981; that is, before 8 January 1987, the date of deposit of Turkey's declaration recognising the right of individual petition to the European Commission of Human Rights.", "Secondly, they argued that the applicant had not exhausted domestic remedies. In their view, she should have initiated compensation proceedings immediately in 1981, following implementation of the reconstruction plan. Finally, they stated that the application was not introduced within the six-month time-limit, as the Court of Cassation's decision upholding the judgment of the Ankara Civil Court of General Jurisdiction was delivered on 4 June 2001, whereas the application was introduced on 22 May 2002. 15. The Court notes that the Ministry of Defence lodged an application with the Ankara Civil Court of General Jurisdiction and requested the annulment of the title deed of the applicant to plot no.", "5965/1 and its registration in the Treasury's name on 10 November 1999. These proceedings ended on 12 October 2001 with the decision of the Court of Cassation rejecting the applicant's request for a reversal. That decision was served on the applicant on 22 November 2001 and her application to the Court was lodged exactly six months later. Furthermore, as the land in dispute was registered in the applicant's name until the end of the domestic proceedings, the Court concludes that the Government's contention that she should have initiated compensation proceedings in 1981 cannot be upheld. 16.", "In view of the above, the Court dismisses the Government's preliminary objections. 17. The Court further considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 18. An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole.", "The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 26 and 28, §§ 69 and 73). In other words, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for instance, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 34, § 50).", "19. In the present case, the applicant's title deed to the land in question was transferred to the Treasury and her compensation claim was rejected by the national courts pursuant to Article 38 of Law no. 2942. Therefore the decision of the domestic courts clearly had the effect of depriving the applicant of her property within the meaning of the second sentence of Article 1 of Protocol No. 1 (see, İnci (Nasıroğlu) v. Turkey, no.", "69911/01, § 23, 14 June 2007). 20. The Court notes that, according to Article 38 of Law no. 2942, applications for compensation for a deprivation of property had to be made within twenty years from the date the property was occupied. By applying this provision retrospectively, the national courts deprived the applicant of any possibility of obtaining compensation for the annulment of her title deed.", "The Court observes at this point that, since the application was lodged with the Court, Article 38 of Law no. 2942 has been annulled by the Constitutional Court as being unconstitutional. In its judgment dated 10 April 2003, the Constitutional Court held that limiting an individual's right to property, by maintaining that the right to bring an action against the de facto occupation of the disputed property lapses, and requiring that the property must be transferred to the authorities twenty years after that occupation, was contrary to the Constitution. Moreover, referring to the case-law of the Court, it held that depriving individuals arbitrarily of their right to property and their right to compensation was contrary to the principle of the rule of law. 21.", "The Court takes into consideration the judgment of the Constitutional Court and acknowledges its reasoning. Nevertheless, it notes that the judgment of the Constitutional Court did not have a retroactive effect and therefore did not provide the applicant with a procedure capable of redressing the effects of a possible violation of the Convention. Consequently, it considers that the matter has not been resolved within the meaning of Article 37 § 1 (b) of the Convention (see Börekçioğulları (Çökmez) and Others, cited above, § 41). 22. The Court considers that the application of Article 38 of Law no.", "2942 to the applicant's case had the consequence of depriving her of the possibility to obtain damages for the annulment of her title. Although such an interference was founded on legislation that was valid at the material time, it could only be described as arbitrary, in so far as no compensation procedure capable of maintaining the fair balance which had to be struck between the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights had been put in place (see Akıllı v. Turkey, no. 71868/01, § 33, 11 April 2006). 23. Accordingly, the Court concludes that there has been a violation of Article 1 of Protocol No.", "1. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 24. The applicant submitted under Article 6 § 1 of the Convention that her right to a fair trial had been breached, as the domestic courts had not taken into account the evidence submitted by her or heard evidence from witnesses. 25.", "The Court finds nothing whatsoever in the case file which might disclose any appearance of a violation of this provision. It follows that this part of the application is manifestly-ill founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention. 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 750,000 New Turkish liras (YTL) - approximately 421,000 euros (EUR) - in respect of pecuniary damage, and YTL 100,000 - approximately EUR 56,000 - in respect of non-pecuniary damage. 28. The Government contested these claims. 29.", "The Court notes that the parties have submitted six sample expert reports concerning the value of the land in question. These reports, which concerned neighbouring land, plot no. 5965/1, had been submitted to the Ankara Civil Court of General Jurisdiction in the course of domestic proceedings which are not relevant to the instant case. The first report, dated 22 November 2004, stated that the value of 1 sq. m. of plot no.", "5965/1 was 600,000,000 Turkish Liras (TRL) [approximately 181,951 euros / EUR], The second report, dated 25 November 2004, determined the value of 1 sq. m. of that land at TRL 1,090,000,000 [approximately EUR 111,794]. The third report, drafted on 3 June 2005, indicated that the value of 1 sq. m. was YTL 1,505 [approximately EUR 144,573] in January 2005. According to the fourth report, dated 20 June 2005, 1 sq.", "m. equalled TRL 550,000,000 [approximately EUR 172,296] in January 2000. As for the fifth report, dated 10 August 2005, it stated that the value of 1 sq. m. was TRL 1,500,000,000 [approximately EUR 156,714] on 28 January 2004. Finally, the last report, dated 15 November 2005, indicated that 1 sq. m. of that land was worth TRL 900,000,000 [approximately EUR 94,028] on 28 January 2004.", "30. The applicant further submitted a letter from a real estate agent, Ankara Bizim Emlak Müsavirliği, which estimated the value of 1 sq. m. of her land at a minimum of TRL 2,650,000,000 and a maximum of TRL 3,100,000,000. 31. The Court reiterates that when the basis of the violation found is the lack of any compensation, rather than the inherent illegality of the deprivation of property, the compensation need not necessarily reflect the full value of the land (I.R.S and Others v. Turkey (just satisfaction), no.", "26338/95, §§ 23‑24, 31 May 2005). It therefore deems it appropriate to fix a lump sum that would correspond to the applicant's legitimate expectations of obtaining compensation. Having regard to the documents submitted by the parties, and deciding on an equitable basis, the Court awards the applicant EUR 145,000 in respect of pecuniary damage. 32. As regards the applicant's claim for non-pecuniary compensation, the Court finds that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction (ibid.", "§ 28). B. Costs and expenses 33. The applicant also claimed YTL 1,000 - approximately EUR 560 - for the costs and expenses incurred before the domestic courts. The applicant stated that she had a contingency fee agreement with her lawyer.", "34. The Government contested this claim. 35. According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not substantiated that she has actually incurred the costs claimed.", "Accordingly, it makes no award under this head. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the applicant's right to the peaceful enjoyment of her possessions admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that the finding of a violation in itself constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 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 145,000 (one hundred and forty- five thousand euros) in respect of pecuniary damage, to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 29 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]
[ "THIRD SECTION CASE OF KHAZIYEVA v. RUSSIA (Application no. 4877/15) JUDGMENT STRASBOURG 26 September 2017 This judgment is final but it may be subject to editorial revision. In the case of Khaziyeva 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 5 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4877/15) 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 Nazilya Khamzinovna Khaziyeva (“the applicant”), on 30 December 2014.", "2. The applicant was represented by Ms A. Maralyan, a lawyer admitted to practice in Russia. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 28 August 2015 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1963 and lives in Ufa. A. Transactions with the flat later purchased by the applicant 5. On 26 December 2006 a new block of flats was commissioned by the Ufa Town Administration.", "6. On 30 September 2010 the Ordzhonikidzevskiy District Court of Ufa recognised T.’s title to the flat at 66/2-54, Ulitsa Kommunarov, Ufa. 7. On 28 October 2010 T. sold the flat to M. The transaction and M.’s title to the flat were registered by the state registration authorities. 8.", "On 13 January 2011 M. sold the flat to the applicant. The transaction and the applicant’s title to the flat were registered by the state registration authorities. B. Annulment of the applicant’s title to the flat 9. On an unspecified date the Housing Foundation of the Republic of Bashkortostan brought a civil claim seeking, inter alia, the invalidation of the applicant’s title to the flat and eviction. 10.", "On 23 July 2013 the District Court granted the claims in full. The court established that the judgment of 30 September 2010 had been forged and that T. had died in 2008 and could not have been a party to the relevant proceedings. The court refused to recognise that the applicant had purchased the flat in good faith for her failure to check the authenticity of the judgment of 30 September 2010. It further took into account that M. had sold the flat to the applicant for 180,000 Russian roubles (RUB) while she had bought it for RUB 190,000. 11.", "On 17 November 2013 the Supreme Court of the Republic of Bashkortostan upheld the judgment of 23 July 2013 on appeal. 12. On 4 April 2014 the Supreme Court rejected the applicant’s cassation appeal. 13. On 9 July 2014 the Supreme Court of the Russian Federation rejected the applicant’s second cassation appeal.", "14. According to the Government, the eviction order was not enforced and the applicant continues to reside in the flat. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 15.", "The applicant complained that she had been deprived of her flat in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 16. The Government contested that argument.", "While they acknowledged that the invalidation of the applicant’s title to the flat had constituted an interference with her possessions, they considered that such interference had been in strict compliance with the requirements set forth in Article 1 of Protocol No. 1. It had been in accordance with law and pursued the legitimate aim of providing affordable housing to people on low incomes. Lastly, they submitted that the interference had been proportionate with the legitimate aim pursued. 17.", "Relying on the Court’s findings in the cases of Gladysheva and Stolyarova (see Gladysheva v. Russia, no. 7097/10, 6 December 2011, and Stolyarova v. Russia, no. 15711/13, 29 January 2015) the applicant maintained her complaint. A. Admissibility 18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 19. The Court observes that it is common ground between the parties that the flat constituted the applicant’s possession and that the revocation of her title to it amounted to an interference with her rights set out in Article 1 of Protocol No.", "1 to the Convention. The Court sees no reason to hold otherwise. It further considers that it may dispense with resolving the issues of the lawfulness and legitimate aim of such interference as it, in any event, fell short of the requirement of proportionality, as will be set out below. 20. The Court notes that the flat left the State’s “possession” as a result of the fraud committed by an unidentified perpetrator who had forged the judgment confirming T.’s title to the flat.", "The Court observes that, when an application for state registration of T.’s title to the flat and its subsequent sale to M. was lodged with the state registration authorities, it was encumbered on the latter to check the authenticity of the judgment confirming T.’s title to the flat and the legitimacy of each subsequent transaction with the flat (compare Pchelintseva and Others v. Russia, nos. 47724/07 and 4 others, § 98, 17 November 2016). The Government, however, did not proffer any explanation, as to why the state registration authorities had failed to detect the fraud, had accepted the forged judgment as authentic and had approved the ensuing transactions with the flat. In such circumstances, the Court cannot accept the argument advanced by the national judicial authorities that the applicant could not be considered a bona fide purchaser of the flat for her failure to have doubts as to the authenticity of the judgment checked and accepted by the state registration authorities. Nor did the Government or the domestic courts explain why the frequency of the transactions with the flat and its purchase price should have been a red flag for the applicant.", "21. The Court considers, accordingly, that, in view of the said omissions on the part of the authorities in procedures specially designed to prevent fraud in real-property transactions, the judicial authorities’ decision to recover the flat from the applicant, without payment of compensation or provision of replacement housing, hardly seems justified. The Court reiterates that mistakes or errors on the part of State authorities should serve to benefit the persons affected. In other words, the consequences of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Stolyarova, cited above, § 49). The Court therefore concludes that the forfeiture of the title to the flat by the applicant, in the circumstances of the case, placed a disproportionate and excessive burden on her.", "There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 22. The applicant complained that her eviction had amounted to a violation of the right to respect for home.", "They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 23. The Government admitted that the applicant’s eviction had constituted an inference with her right set out in Article 8 of the Convention.", "They considered, however, that such interference had been lawful, had pursued the legitimate aim of protecting the rights of persons eligible to social housing and had been proportionate to that aim. Lastly, the Government submitted that the flat had not been recovered by the State and the applicant continued to reside there. 24. The applicant maintained her complaint. 25.", "The Court notes that the applicant’s complaint about her eviction is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No. 1 to the Convention (see 19-21 above), the fact that the eviction order has not been enforced to date and that the applicant continues to reside in the flat, the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (compare Pchelintseva and Others, cited above, §§ 102-05). 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 3,266,000 Russian roubles (RUB) and 10,0000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively. 28. The Government considered the applicant’s claims unsubstantiated and unreasonable.", "29. The Court takes into account that in the present case it has found a violation of the applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention. It considers that there is a clear link between the violation found and the damage caused to the applicant. 30.", "The Court reiterates that, normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010, § 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011).", "Consequently, having due regard to its findings in the instant case and to the fact that the applicant did not receive compensation for loss of title to the flat in the domestic proceedings, the Court considers that the most appropriate form of redress would be to restore her title to the flat and to annul the eviction order. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare, Gladysheva, cited above, § 106). 31. In addition, the Court has no doubt that the applicant has suffered distress and frustration on account of the deprivation of property.", "Making its assessment on an equitable basis, the Court awards to the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 32. The applicant also claimed RUB 40,000 for the costs and expenses incurred before the domestic courts and RUB 2,200 (assessment of the current value of the flat) and EUR 2,650 (legal fee) for those incurred before the Court. She requested that the amount in respect of the legal fee for the proceedings before the Court should be paid directly into the bank account of her representative.", "33. The Government considered that the applicant’s claims in respect of the costs and expenses incurred before the domestic courts should be dismissed as irrelevant to the proceedings before the Court. As regards the remainder of the claims, the Government submitted that they should be dismissed as the applicant had not yet made any payment to her representative. 34. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,403 covering costs under all heads.", "EUR 553 of this sum is to be paid directly to the applicant and EUR 850 into the bank account of Ms A. Maralyan, a lawyer who represented her in the proceedings before the Court. C. Default interest 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that there is no need to examine the complaint under Article 8 of the Convention; 4. Holds (a) that the respondent State shall ensure, by appropriate means, full restitution of the applicant’s title to the flat and the annulment of the eviction order; (b) that the respondent State is to pay to the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,403 (one thousand four hundred and three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses. EUR 553 of this sum is to be paid directly to the applicant and EUR 850 into the bank account of Ms A. Maralyan, a lawyer who represented her in the proceedings before the Court; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 26 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLuis López GuerraDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF SAMOYLOV v. RUSSIA (Application no. 64398/01) JUDGMENT STRASBOURG 2 October 2008 FINAL 06/04/2009 This judgment may be subject to editorial revision. In the case of Samoylov v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Volodymyr Butkevych,Anatoly Kovler,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 September 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 64398/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Leonid Nikolayevich Samoylov (“the applicant”), on 14 June 2000.", "2. The applicant, who had been granted legal aid, was represented by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Ms V. Milinchuk. 3. The applicant alleged, in particular, that he had been subjected to ill-treatment by police officers and that no effective investigation had been conducted into the matter.", "4. By a decision of 5 June 2007, the Court declared the application admissible. 5. The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and lives in Zelenograd. A. Alleged ill-treatment by the police 7.", "On 5 February 1999 three police officers from the Metro police (милиция метро) at Leningradskiy railway station in Moscow, L., S. and I., arrested the applicant and another person, R., on suspicion of burglary. They took them to the Komsomolskaya Metro police station for questioning and urged the applicant to confess. The applicant refused and asked to be provided with a lawyer. Angry about this request, the policemen punched the applicant in the upper body and the head. 8.", "Later, the policemen took the applicant to a special Metro police station for further questioning. According to the applicant, as soon as the interrogation had begun, the policemen beat him to make him sign a confession they had prepared. The applicant refused to sign. Angry about this refusal, the policemen cuffed the applicant’s hands behind his back, dropped him on the floor, and applied electric shocks to his neck, kidney and liver areas and private parts. They kicked the applicant in the stomach, put him in a chair, and beat his head with a document file until he fainted.", "Fifteen minutes later the policemen told the applicant that they would hand him over to officers from the Sokol district police station because the burglary had been committed in that district. 9. The officers from the Sokol district police station questioned the applicant and placed him in a temporary detention unit. Three days later, the applicant was transferred to remand prison SIZO–48/5. 10.", "On the applicant’s admission to the prison, the doctor on duty observed injuries on his body. He sent the applicant to a first-aid point to record the injuries. 11. On 10 February 1999 the staff at the first-aid point recorded the following injuries sustained by the applicant: “Bruises on the soft tissue of the left auricle, right forefinger and right elbow joint and an abrasion on the left shin.” The applicant explained that the injuries were caused by the ill-treatment he had received from the policemen. 12.", "On 22 February 1999 the prison administration asked the public prosecutor of the Golovinskiy District to investigate the applicant’s allegation of ill-treatment. The prosecutor referred the request to the Metro public prosecutor (прокурор Московского метрополитена) because it was Metro police officers who had allegedly ill-treated the applicant. B. Trial and the first cycle of the investigation into ill-treatment 13. The applicant’s criminal case was submitted for trial in the Golovinskiy District Court.", "At the trial, the court questioned as a witness L., the policeman who had arrested the applicant, who stated that he had not used physical coercion against him. The applicant recognised L. as the man who had beaten him. The court asked the Metro public prosecutor about the results of the inquiry (прокурорская проверка) into the alleged ill-treatment. On 9 June 1999 the Internal Investigations Department of the Moscow police informed the court that the applicant could have been injured when being transported to the remand prison. 14.", "On 5 October 1999 the court convicted the applicant and R. of burglary and sentenced them to four years and four months’ imprisonment. The court found the applicant’s allegation of ill-treatment unsubstantiated, stating: “The use of physical coercion [against the applicant and R.] by the policemen has not been corroborated by the results of the inquiry conducted.” 15. On 15 December 1999 the Moscow City Court upheld the applicant’s conviction on appeal. C. Second cycle of the investigation into ill-treatment 16. On 26 June 1999 the Metro public prosecutor refused to institute criminal proceedings against the alleged perpetrators on the ground that there was no indication that a crime had been committed.", "On 31 October 1999 the applicant asked the Moscow public prosecutor to quash the decision of 26 June 1999. 17. On 17 January 2000 the Moscow public prosecutor quashed the decision of 26 June 1999 rendered by the Metro public prosecutor and referred the case back for further investigation. D. Third cycle of the investigation into ill-treatment 18. On 24 January 2000 the Metro public prosecutor refused to open criminal proceedings against the policemen for the second time.", "19. On 28 January 2004 a Moscow deputy public prosecutor quashed the decision of 24 January 2000, finding that it was superficial. He noted, in particular, that no medical examination had been carried out to establish the method by which the injuries had been inflicted and their gravity and, furthermore, that O. and D., persons who had been detained simultaneously with the applicant and had sustained similar injuries, had not been questioned. He referred the case back for further investigation. E. Fourth cycle of the investigation into ill-treatment 20.", "On 5 March 2004 the deputy Metro public prosecutor refused to institute criminal proceedings against the policemen for the third time on the ground that there was no indication that a crime had been committed. In the decision it was noted that the policemen L., S. and I., who had arrested the applicant, had stated that they had not used physical coercion against him. Three other policemen, K., Z. and J., who had been on duty at the police station on 5 and 6 February 1999, were also questioned. K. stated that during his shift the applicant had not been brought to the police station. Z. and J. submitted that on 5 February 1999 at around 2 p.m. two persons had been brought to the police station; however, no physical force had been used against them and no procedural steps had been taken that day.", "O. and D., the persons who had been detained simultaneously with the applicant, could not be questioned because they did not reside in Moscow any more. As regards the injuries noted in the medical report of 10 February 1999, it was impossible to determine when and in what circumstances they had been inflicted. II. RELEVANT DOMESTIC LAW 21. Before 1 July 2002, criminal proceedings in Russia were governed by the 1960 Code of Criminal Procedure of the RSFSR (the old CCP).", "Under Article 113 of the old CCP, a refusal to open criminal proceedings could be appealed against to a prosecutor or a court. Under Article 220, a refusal by the prosecutor could be appealed against to a higher prosecutor. 22. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 23. In the first set of their observations the Government pointed out that the investigation had been resumed and was pending, and that it was therefore too early to assess the merits of the complaint. In their second set of observations they claimed that the applicant had failed to exhaust domestic remedies because he had neither appealed to a court against the decision of 26 June 1999 not to institute criminal proceedings, nor appealed to a court or to a higher prosecutor against the decision of 5 March 2004 not to institute criminal proceedings. 24.", "The applicant argued that the fact that the investigation had been pending for over three years by the time he submitted his first set of observations did not mean that the complaint was premature but proved that the investigation had been inadequate. As regards any subsequent reviews of the investigation results, they were bound to grind to a halt as it would be impossible to rectify the flaws in the investigation four years after the events. 25. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness.", "Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52, and Akdıvar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent authority (see Whiteside v. the United Kingdom, decision of 7 March 1994, application no. 20357/92, DR 76, p. 80). 26.", "The Court further emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see Akdivar and Others, cited above, § 69, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, p. 2432, § 77).", "27. The Court observes that the investigating authorities became aware of the applicant’s allegations of ill-treatment on 22 February 1999, several days after a medical examination had stated that the applicant had bruises and abrasions, and subsequently an investigation was instituted. The applicant and the Government dispute the effectiveness of this investigation. The Court considers that the Government’s preliminary objection raises issues which are closely linked to the merits of the applicant’s complaints. Thus, it considers that this matter falls to be examined below under the substantive provisions of the Convention (see paragraphs 39-46 below).", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that the investigation into the matter had not been effective. Article 3 of the Convention reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 29.", "The applicant maintained that his rights under Article 3 had been violated. He noted, in particular, that in the course of the investigation into the alleged ill-treatment no expert medical examination had been carried out and persons detained simultaneously with him had not been questioned, which was not disputed by the Government. 30. In their first set of observations the Government accepted the applicant’s account of the facts, having noted, however, that it was too early to assess the merits of the complaint. In their second set of observations they further submitted that in the light of the decision of 5 March 2004, the complaint was manifestly ill-founded.", "B. The Court’s assessment 1. Effectiveness of the investigation a. General principles 31. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.", "An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see 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). 32. Thus, 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 of 28 October 1998, Reports 1998‑VIII, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, etc. (see, mutatis mutandis, Salman, cited above, § 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. 33. Further, the investigation must be expedient. In cases under Articles 2 and 3 of the Convention, where the effectiveness of the official investigation was at issue, the Court 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, judgment of 9 June 1998, Reports 1998‑IV, § 67), and the length of time taken during the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). b.", "Application to the present case i. Conduct of the investigation 34. The Court notes that upon the applicant’s admission to remand prison SIZO-48/5 the doctor on duty noticed injuries on his body and transferred him to a first aid point to record them. On 10 February 1999 the first aid point recorded bruises and abrasions on his body. As the applicant claimed that the injuries had been caused by policemen who had ill-treated him, on 22 February 1999 the prison administration asked the prosecuting authorities to investigate the allegations.", "The investigating authorities thus became aware of the applicant’s allegations of ill-treatment shortly after bruises on his body had been recorded in a medical report. A police inquiry was conducted into the matter. After the applicant had raised the allegations of ill-treatment also before the trial court, the court requested the results of the inquiry. On 9 June 1999 the Internal Investigations Department of the Moscow police informed the court that the applicant could have been injured when being transported to the remand prison. No information as to which investigative steps had been taken so as to verify the applicant’s version of the events was made available to the Court.", "35. The Court further notes that on two occasions, namely on 26 June 1999 and 24 January 2000, the Metro prosecutor refused to institute criminal proceedings into the applicant’s allegations on the ground that there was no indication that a crime had been committed. Following the applicant’s appeal, both decisions were quashed by the higher prosecutor on 17 January 2000 and on 28 January 2004 respectively. Likewise, no information as regards the investigative measures taken was provided to the Court. However, from the decision of 28 January 2004 it follows that the most elemental steps had never been taken.", "It was noted, in particular, that the investigating authorities had failed to conduct a medical examination so as to establish the gravity of the injuries and the method by which they had been inflicted and, furthermore, to question O. and D., persons who had been detained simultaneously with the applicant and had sustained similar injuries. 36. However, on 5 March 2004 the deputy Metro public prosecutor again refused to institute criminal proceedings on the grounds that the policemen who had detained the applicant had stated that no physical force had been applied to him, that it was not possible to question O. and D. because they did not reside in Moscow any more and that it was not possible to determine when and in what circumstances the injuries recorded in the medical report of 10 February 1999 had been inflicted. 37. The Court observes that the most fundamental investigative measures, such as inspection of the scene where the applicant alleged to have been ill-treated and a medical examination to establish when and how the injuries on the applicant’s body had been inflicted, had never been carried out.", "These failures alone, for which no explanation was provided to the Court, suffice to render the investigation inefficient. 38. Moreover, other investigative steps were either taken with an inexplicable delay or not taken at all. In particular, it appears that policemen who had been on duty on 5 February 1999, the date of the applicant’s arrest, were only questioned as late as in 2004. As for O. and D., no explanation was provided to the Court as to why they had not been questioned before 2004.", "Furthermore, the Court is not satisfied with the explanation provided for the failure to question them in 2004 or later, since even if neither of them resided in Moscow at that time, the Court sees no reason why Moscow prosecuting authorities could not have applied to regional prosecuting authorities with a request to locate and question them. No information was provided to the Court as to any measures taken in this regard. Finally, it notes a long period of inactivity between the decision not to institute criminal proceedings of 24 January 2000 and the decision to resume the investigation of 28 January 2004. ii. The first limb of the Government’s preliminary objection 39. Having regard to the limb of the Government’s preliminary objection which related to the fact that the investigation was pending, the Court observes that after this objection was raised the investigation was discontinued.", "Accordingly, the Court does not find it necessary to examine it. iii. The second limb of the Government’s preliminary objection 40. As regards the limb of the Government’s preliminary objection relating to the applicant’s failure to appeal to a court against the refusal to institute criminal proceedings of 26 June 1999, the Court notes that under Article 113 of the old CCP the refusal could be appealed against either to a prosecutor or to a court. The Court observes that although a court itself had no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no.", "49790/99, 14 October 2003). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate the claims. 41. The Court notes that although the applicant did not appeal against the decision of 26 June 1999 to a court, he first brought the allegation of ill-treatment before the trial court and, second, appealed against the decision to the higher prosecutor. The Court shall now examine whether having had recourse to these two avenues the applicant has complied with the requirement to exhaust domestic remedies.", "42. The Court observes that bringing allegations of ill-treatment before the trial court does not always constitute an effective remedy in respect of Article 3 complaints. In particular, in Slyusarev v. Russia ((dec.), no. 60333/00, 9 November 2006), where the applicant had raised the issue before the trial court but had failed to challenge separately before a court the prosecutor’s refusal to open criminal proceedings, the Court concluded that he had failed to exhaust domestic remedies. The Court reached this conclusion on the following grounds: (i) the applicant himself had raised the issue of ill-treatment in the context of admissibility of evidence only; (ii) he had not alleged before the trial court that the investigation into his complaints of ill-treatment had been inadequate; and (iii) the applicant had not complained about the ill-treatment to the doctor who had examined him several hours after his arrest when he had allegedly been beaten by policemen, and the complaint had only been brought to the attention of the authorities two months after the alleged event.", "43. The Court considers that the present case should be distinguished from Slyusarev on the following grounds: (i) the applicant did not raise the issue of ill-treatment in the context of admissibility of evidence, but he raised the complaint in substance, and the trial court examined it. In particular, the court questioned the alleged perpetrator L., requested the results of the prosecutor’s preliminary inquiry and dismissed the applicant’s allegations as unfounded; (ii) the applicant could not have alleged before the trial court that the investigation into his complaints of ill-treatment had been inadequate because he only became aware of the results of the preliminary inquiry at the trial; (iii) the applicant did complain about the ill-treatment to the doctor who examined him shortly after the events complained of, and the issue was promptly brought to the attention of the authorities. 44. The Court further observes that following the applicant’s appeal to the higher prosecutor, the refusal to institute criminal proceedings of 26 June 1999 was reversed and the case was referred back for further investigation.", "The institution of criminal proceedings was subsequently again refused, and that decision was also reversed on 28 January 2004 as superficial, the higher prosecutor having indicated particular flaws in the investigation that had to be rectified. In the circumstances, where the allegations of ill-treatment had already been brought before and addressed in substance by the trial court, and where the decisions to continue the investigation were taken by the prosecuting authorities themselves, an appeal to a court does not appear to be able to offer the applicant any different outcome. Accordingly, the Court considers that in the circumstances of the present case, raising the ill-treatment complaint before the trial court and lodging an appeal before a higher prosecutor was sufficient to comply with the requirement to exhaust domestic remedies. This limb of the Government’s objection is therefore dismissed. iv.", "The third limb of the Government’s preliminary objection 45. As regards the limb of the Government’s preliminary objection relating to the applicant’s failure to appeal either to a court or to a higher prosecutor against the refusal to institute criminal proceedings of 5 March 2004, the Court notes that the institution of criminal proceedings had already been refused twice and the applicant had successfully appealed against those decisions on both occasions. However, the prosecuting authorities had conspicuously disregarded the instructions of the higher prosecutor and failed to investigate properly the applicant’s allegations. In the Court’s view, the requirement to appeal yet again against such a refusal would be over-formalistic and place an excessive burden on the applicant. Furthermore, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier, such as an expert medical examination and inspection of the scene of the events, could no longer usefully be conducted.", "Therefore, another reversal of the refusal to open criminal proceedings would not constitute an effective remedy in the present case. Accordingly, the Court considers that in these circumstances the applicant should be dispensed from the requirement to appeal against the refusal to open criminal proceedings of 5 March 2004. v. Conclusion 46. In the light of the foregoing, the Court dismisses the Government’s preliminary objection as regards the applicant’s failure to exhaust domestic remedies and finds that the authorities failed to carry out an effective criminal investigation into the applicant’s allegations of ill-treatment. Accordingly, there has been a violation of Article 3 in this connection. 2.", "Ill-treatment by police officers a. General principles 47. 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, judgment of 4 December 1995, Series A no. 336, § 34; 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, 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 Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 34, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). b.", "Application to the present case 48. The Court notes that on 5 February 1999 the applicant was arrested by policemen. Several days later, upon his transfer from police custody to remand prison SIZO-48/5 the doctor on duty saw injuries on the applicant’s body and referred him to the first-aid point. On 10 February 1999 the staff at the first-aid point recorded bruises on the soft tissue of the left auricle, right forefinger and right elbow joint and an abrasion on the left shin. 49.", "According to the applicant, the injuries were caused by policemen who ill-treated him to make him sign a confession they had prepared. In particular, they cuffed his hands behind his back, dropped him on the floor, and applied electric shocks to his neck, kidney and liver areas and private parts, kicked him in the stomach, put him in a chair and beat his head with a document file until he fainted. 50. The Court observes that not only did the Government not contest the applicant’s account of the ill-treatment he had been subjected to in the police station, but in the first set of their observations they expressly accepted it. The Court takes note of the Government’s subsequent argument that in the light of the decision of 5 March 2004 not to institute criminal proceedings into the applicant’s allegations, the complaint was manifestly ill-founded.", "It observes, however, that after five years the domestic investigation was discontinued having brought no tangible results. Furthermore, in paragraphs 34-46 above, the Court found the investigation ineffective, in breach of Article 3 of the Convention. 51. Having regard to the applicant’s consistent and detailed allegations, corroborated by the medical report, and in view of the absence of any other plausible explanation as to the origin of the injuries found on the applicant upon his transfer to remand prison SIZO-48/5, the Court accepts that the applicant was subjected to the ill-treatment by police described above. 52.", "As to the seriousness of the acts of ill-treatment, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was 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. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2279, § 64; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1891-92, §§ 83-84 and 86; Selmouni v. France [GC], no. 25803/94, § 105, ECHR 1999‑V; Dikme v. Turkey, no.", "20869/92, §§ 94-96, ECHR 2000-VIII, and, among recent authorities, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 116, ECHR 2004-IV (extracts)). The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. In any event, the Court reiterates that, in respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Selmouni, cited above, § 99). 53.", "The Court finds that in the instant case the existence of physical pain or suffering is attested by the medical report and the applicant’s statements regarding his ill-treatment in the police station. In particular, he claimed to have been tortured with electrodes, which was not refuted by the Government. The sequence of events also demonstrates 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. 54. In these circumstances, the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention.", "55. Accordingly, there has also been a violation of Article 3 in this connection. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 56. The applicant complained that the investigation into his allegations of ill-treatment was ineffective 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.” 57.", "The Court observes that this complaint concerns the same issues as those examined in paragraphs 34-46 above under Article 3 of the Convention and considers it unnecessary to examine them separately under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 59.", "The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage for the ill-treatment by policemen and the lack of an adequate domestic investigation into the matter. 60. The Government considered the claim to be unfounded and excessive. 61. The Court has found a violation of Article 3 of the Convention on account of the torture by policemen and the lack of an effective domestic investigation into the matter.", "The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It awards to the applicant the amount claimed, plus any tax that may be chargeable thereon. B. Costs and expenses 62. The applicant did not make any claims in respect of the costs and expenses incurred before the domestic courts and before the Court.", "63. Accordingly, the Court makes no award 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.", "Dismisses the Government’s preliminary objection; 2. 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 allegations of ill-treatment; 3. Holds that there has been a violation of Article 3 of the Convention on account of the ill-treatment inflicted on the applicant by policemen; 4. Holds that there is no need to examine separately the applicant’s 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 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 2 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "THIRD SECTION CASE OF CIOBANU v. THE REPUBLIC OF MOLDOVA (Application no. 62578/09) JUDGMENT STRASBOURG 24 February 2015 FINAL 24/05/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ciobanu v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Johannes Silvis,Valeriu Griţco,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 3 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "62578/09) 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, Ms Veronica Ciobanu (“the applicant”), on 14 November 2009. 2. The applicant was represented by Mr T. Osoianu, a lawyer practising in Ialoveni. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.", "The applicant alleged, in particular, that the domestic authorities had failed to conduct an appropriate investigation into her husband’s death, contrary to their obligations under Article 2 of the Convention. 4. On 15 May 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1984 and lives in Fîrlădeni. 6. Her late husband, Mr Alexandru Ciobanu (“the victim”), was a taxi driver and died at work, in a car accident on 6 April 2008. He was twenty-seven years’ old at the time and the father of a three-year-old child. The present application is about the circumstances of his death and the investigation carried out by the Moldovan authorities into those circumstances.", "7. The accident happened at approximately 11.30 p.m. on 6 April 2008 in an illuminated two-way street with two lanes in the town of Hîncești. The speed limit was 40 k.p.h. and a solid line in the centre of the road indicated that no overtaking was allowed. A petrol station was located on one side of the road and there was a short broken line allowing cars to enter the petrol station from the opposite side of the road.", "8. There are two versions of the events leading to the accident. The first version is based on the accounts of two eyewitnesses. According to them, the applicant’s husband was driving his Lada (“the victim’s car”) along the street and when he was level with the petrol station located on his left, he slowed down, indicated a left turn and then turned to the left. When his car had crossed the line in the centre of the road and was perpendicular to the road in the lane for traffic from the opposite direction, a speeding 5 series BMW car (“the grey car”) came from behind and hit it in the left side doors.", "The impact was so powerful that the victim’s car was lifted spinning up in the air at a height of several meters and was propelled onto a lamp post on the left side of the road. The grey car passed under the victim’s car and continued on its way for a while before coming to a complete stop. 9. The second version of the events was that of the grey car driver involved in the accident. He submitted that he had been driving at a speed of between 40 and 50 k.p.h.", "and had not overtaken any cars, when suddenly the victim, whose car had been parked on the right-hand side of the road, had started to turn left without looking out or indicating. The grey car driver claimed that he could not have applied his brakes or avoided the impact. He had a passenger in his car who submitted that he had not seen anything as he had been talking on the telephone at that very moment. Neither of the grey car occupants was injured in the accident. 10.", "According to measurements made by the police at the scene of the accident, the distance between the two cars involved in the accident after their complete stop was thirty-three metres. Experts later established that the grey car had hit the victim’s car at an angle of approximately ninety degrees. There were no skid marks, meaning that the grey car driver did not apply his brakes before impact. The victim died on the spot from multiple lethal injuries. 11.", "The police carried out an immediate examination of the scene of the accident and the grey car driver was taken to hospital, where he tested negative for the presence of alcohol in his blood. A criminal investigation was initiated the next day. 12. One of the witnesses questioned during the criminal investigation was a taxi driver, C., who had been driving along the same street and in the same direction as the victim. He submitted that the victim’s car had been further ahead but within sight.", "C. had been driving at a speed of approximately 60 to 70 k.p.h. when a speeding grey car had overtaken him in spite of the solid line on the centre of the road. He estimated that the grey car had been moving at a speed of 120 to 130 k.p.h. After overtaking his car, the grey car continued to drive in the lane for traffic coming from the opposite direction. C. claimed that he had seen the victim’s car ahead of him slowing down and indicating a left turn in front of the petrol station.", "As the victim’s car was turning left, the speeding grey car, which was still driving in the opposite lane, smashed into its left side. 13. Another witness was a student, G., who had been at a car wash across the road from the petrol station. He was standing there waiting for a taxi which he had ordered over the telephone and saw the entire scene. He was questioned on 17 October 2008 and submitted that the victim had been driving along the street before slowing down and indicating a left turn.", "After turning to the left, he was hit by a speeding grey car which had come from behind him in the lane for traffic coming from the opposite direction. G. estimated that the grey car driver had been travelling at approximately 100 k.p.h. and had not applied his brakes before the impact. 14. On 16 May 2008 an experiment was conducted by the prosecutor in charge of the case with the participation of the grey car driver and witness C. The applicant was not informed about it.", "The experiment consisted of measuring the time needed for a car to turn left at the place where the accident had happened and in the manner indicated by C. As a result of the experiment, it was established that the victim had needed approximately two seconds to make the manoeuvre of turning left. 15. On 27 May 2008 the prosecutor in charge of the investigation granted the grey car driver’s request to return his car to him. It had been held as a piece of evidence until that date. 16.", "On 28 May 2008 the applicant requested that a technical forensic investigation be conducted in order to determine, inter alia, the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; and whether the grey car could have avoided the impact by braking, had its driver been keeping to the legal speed limit. The request was partly granted by the prosecutor on 30 May 2008 and an expert from the Ministry of Justice was asked to reply only to the question whether the grey car could have avoided the impact if it had been moving at 50 k.p.h. and on the basis that the victim’s car had needed approximately two seconds to turn left. The expert was not provided with other information. The applicant was notified about the decision to conduct the forensic investigation on 19 June 2008.", "17. In the meantime, on 3 June 2008, an expert from the Ministry of Justice issued a report in which he had taken as the basis of his investigation the fact that the grey car had been moving at 50 k.p.h. when the victim’s car had turned left. The report indicated that when the victim’s car had started its manoeuvre to the left, the grey car could have been twenty-eight metres behind it. It did not disclose the origin of the information concerning the distance of twenty-eight metres, nor did it contain any suggestion as to how the expert had come up with that figure.", "The report also indicated that the braking distance of a BMW of the kind involved in the accident moving at a speed of 50 k.p.h. was between thirty-one and thirty-nine metres. On the basis of the above figures, noting that the braking distance of the grey car was longer than the distance of twenty-eight metres between the cars, the report concluded that the grey car could not have avoided the impact by braking. 18. On 19 June 2008 the prosecutor in charge of the investigation ordered a new technical forensic investigation to determine the position of both vehicles involved in the accident in relation to each other and the road.", "19. On 8 July 2008 another expert from the Ministry of Justice issued a report in which he concluded that the grey car had hit the left side of the victim’s car at an angle of approximately ninety degrees. The expert could not establish the position of the vehicles in relation to the road at the time of the impact since he had not been provided with sufficient information. 20. On 29 August 2008 the prosecutor in charge of the case ordered a third technical forensic investigation to determine the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; whether the grey car could have avoided the impact by braking, had it been keeping to the legal speed limit; and the manner in which both drivers should have behaved had they been respecting the provisions of the traffic code.", "21. On 22 September 2008 the expert who had issued the first report on 3 June 2008, relying again on the facts as submitted by the grey car driver, concluded, inter alia, that there was no way of calculating the grey car’s speed; the grey car could not have avoided the impact by braking because its braking distance was longer than the distance between the two cars when the victim’s car had started the manoeuvre; the distance between the two cars when the victim’s car had turned left could not be determined, but on the basis of previous findings (see paragraph 17 above) it could have been around 27-28 metres; and that the grey car should have stopped when the victim’s car had started its manoeuvre, but had been unable to do so. 22. On 14 October 2008 a confrontation was conducted between witnesses C. and the grey car driver. Each of them kept to their initial version of the facts.", "23. On 26 November 2008 the prosecutor in charge of the case ordered another forensic technical investigation by a commission of experts. The experts were requested to answer whether the grey car driver had had the right to overtake the victim’s car; whether before starting his manoeuvre the victim had been entitled to believe that the grey car driver would respect the traffic code rules; and what the grey car driver should have done when the victim’s car indicated a left turn and started its manoeuvre. 24. On 1 December 2008 the applicant requested that an independent expert of her choice be involved in the commission of experts.", "She nominated an engineer who was also a university professor and had a PhD in the field of traffic security. However, on 2 December 2008 the prosecutor rejected the request on the ground that the person proposed by the applicant was not licenced to practise as a judicial expert. It was decided that the person proposed by the applicant should participate in the commission of experts in the capacity of “specialist”. 25. On 19 December 2008 the expert who had issued the first report on 3 June 2008 together with another expert issued a forensic investigation report in which they refused to give answers to the first two questions because they were of a legal character.", "In answer to the third question, the experts said that the grey car driver should have reduced his speed. The specialist proposed by the applicant was not informed that a forensic investigation had been carried out. 26. On 23 March 2009 the Hâncești Prosecutor’s Office decided to discontinue the criminal investigation into the circumstances of Alexandru Ciobanu’s death. The prosecutor considered the testimonies of witnesses C. and G. unreliable because they had been contradicted by the findings in the forensic technical reports.", "On the other hand, the findings in those reports were found to be consistent with the submissions of the grey car driver. Accordingly, the prosecutor accepted the latter’s version of the facts and concluded that the victim had been responsible for the accident because, having been parked on the right-hand side of the road, he had turned left without looking out and making sure that the manoeuvre was safe. The applicant appealed, arguing, inter alia, that no independent experts of her choice had been involved in the forensic investigations and no confrontation had been carried out between the grey car driver and witness G. 27. On 9 April 2009 the next level of prosecutor from the Hâncești Prosecutor’s Office dismissed the applicant’s appeal and upheld the decision of the Hâncești Prosecutor’s Office of 23 March 2009. He argued that no independent expert opinion or supplementary confrontations had been necessary because the facts of the accident had been clearly established.", "The applicant challenged the decision of the Hâncești Prosecutor’s Office of 23 March 2009 before the investigating judge, who dismissed her appeal on 14 May 2009. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 28. The applicant complained of a violation of Article 2 of the Convention in that no effective investigation had been carried out into the circumstances of the accident which had resulted in the death of her husband. She also complained of a violation of Article 6 of the Convention, claiming that the criminal investigation of the accident which had caused her husband’s death had not been fair.", "The Court, however, considers it more appropriate to examine the case solely from the standpoint of Article 2 of the Convention, the relevant part of which reads: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” A. Admissibility 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 30. The applicant argued that the investigation had not been effective from the start.", "In the first place, the report of the accident issued by the police did not indicate important elements, such as the fact that the speed limit on that stretch of road was 40 k.p.h. Secondly, neither the applicant nor her representative had been involved in any of investigative measures conducted by the prosecutor. For instance, they had not been aware of the experiment of 16 May 2008 and the authorities had refused to include an expert of their choice in the forensic investigation commission. The authorities failed to establish all the witnesses immediately after the accident and one of the main eyewitnesses, G., was not identified and questioned until some six months after the event, at the initiative of the applicant. In spite of the serious contradictions between the versions of the grey car driver and witness G., no confrontation was conducted between the two of them.", "The prosecuting authorities returned the grey car to its owner before any of the forensic investigations had been conducted. 31. The Government argued that the authorities had acted promptly and a criminal investigation had been initiated immediately after the accident. Within that investigation numerous investigative measures were carried out and all the witnesses were heard. The victim’s relatives were properly involved in the investigation and informed about its outcome.", "The Government emphasised that the State had an obligation of means but not one of result in the present case. 2. The Court’s assessment 32. The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake (see, amongst many other authorities, Zubkova v. Ukraine, no. 36660/08, § 35, 17 October 2013).", "In case of a life-threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, for example, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011). This obligation also applies in the context of designing a framework for protection of life from road traffic accidents (see, for example, Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007; Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova, no.", "23401/04, § 30, 5 January 2010). An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law (see Cioban v. Romania (dec.), no. 18295/08, § 25, 11 March 2014) but if the infringement of the right to life is not intentional, Article 2 does not necessarily require such remedies; the State may meet its obligation by affording victims a civil‑law remedy, either alone or in conjunction with a criminal‑law one, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Anna Todorova, cited above, § 73). 33. In principle, States should have the discretion to decide how a system for the implementation of a regulatory framework protecting the right to life must be designed and implemented.", "What is important, however, is that whatever form the investigation takes, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it, may lead to the finding that the Convention requirements have not been met (see Antonov v. Ukraine, no. 28096/04, § 46, 3 November 2011). 34. A requirement of promptness and reasonable expedition is implicit in this context.", "Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009). Thus, in a number of cases before the Court concerning the implementation of a domestic regulatory framework for the protection of life from road traffic accidents, the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see Anna Todorova, cited above, § 76; Antonov, cited above, §§ 50-52; Igor Shevchenko v. Ukraine, no. 22737/04, §§ 57-62, 12 January 2012; Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012; Prynda v. Ukraine, no.", "10904/05, § 56, 31 July 2012; and Zubkova, cited above, §§ 41-42). 35. Turning to the facts of the present case, the Court notes that there were two witnesses to the accident who related similar facts. In particular, they both submitted that the victim had been driving along the street before indicating a left turn, slowing down and manoeuvring to the left in a place where a left turn was allowed. According to their account of the events, the grey car was going in the same direction as the victim’s car at a very high speed in the lane for traffic coming from the opposite direction when it collided with the victim’s car.", "It also appeared that the grey car driver had not applied his brakes at all before the collision. Those testimonies, which were challenged only by the accused grey car driver, were dismissed by the prosecutor as unreliable because they were considered to be inconsistent with the findings of the technical forensic investigations, which stated that the grey car could not have avoided the impact by braking. 36. Having examined the forensic investigation reports on which the prosecutors based the above decision, the Court notes that all they did was to give an answer to a hypothetical question whether a BMW car of the kind involved in the accident could have avoided the impact by braking, if driven at a speed of 50 k.p.h. and if the distance between it and the victim’s car had been twenty-eight metres at the time when the latter started its manoeuvre.", "The answer given was that in such circumstances the impact could not have been avoided because the braking distance of the grey car would have been longer by at least three metres than the imaginary distance between it and the manoeuvring car ahead of it. That was indeed a purely hypothetical exercise because, as it appears clearly from the materials of the case, neither the grey car’s speed nor the distance between it and the victim’s car were established during the investigation. 37. In such circumstances, the Court finds it striking that the prosecutor considered it possible to dismiss what appeared to be trustworthy witness statements, which were consistent with each other, on the basis of a purely hypothetical speculation that was unrelated in any way to the factual circumstances of the case. 38.", "The Court further notes with concern that the investigation made no real efforts to establish one of the basic elements of the equation, which was the speed at which the grey car was being driven before the impact. That was indeed one of the key elements, especially taking into consideration the submissions of the witnesses that the car was being driven at speeds above 100 k.p.h. on a road where the speed limit was 40 k.p.h. The prosecutor did not consider it necessary to inquire about the real speed even after being expressly requested to do so by the applicant on 28 May 2008 (see paragraph 16 above). It was not until 29 August 2008, namely almost five months after the accident that the prosecutor considered it necessary to ask for the real speed of the grey car to be determined by a forensic expert (see paragraph 20 above).", "He accepted very easily the expert’s answer that there was no way of calculating the speed and did not make any other attempts to establish the speed of the grey car. 39. In addition to the above-mentioned very serious shortcomings, the Court also notes that one of the witnesses, G., was not heard until 17 October 2008, namely more than six months after the accident. Moreover, the victim’s family was not allowed to have an expert or “specialist” of its choice included in the commission of experts which conducted the final forensic investigation in the case and the prosecutor decided to return the grey car to its owner before conducting a forensic investigation. 40.", "In the light of the shortcomings described above, the Court considers that the manner in which the domestic authorities conducted the investigation could give an independent observer the impression that they did not genuinely attempt to elucidate the circumstances of the case and discover the truth. There has accordingly been a procedural violation of Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 42. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage suffered as a result of the violation found above. She submitted that that sum constituted the financial loss suffered by her family as a result of the death of her husband. She also claimed EUR 30,000 in respect of non-pecuniary damage. 43.", "The Government disagreed with the applicant and asked the Court to dismiss her just satisfaction claims. 44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, it awards the applicant EUR 20,000 in respect of non-pecuniary damage. B.", "Costs and expenses 45. The applicant did not make any claims for costs and expenses. 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.", "Declares the application admissible; 2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb; 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 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 24 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliJosep CasadevallDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF GERDEN v. SLOVENIA (Application no. 44581/98) JUDGMENT STRASBOURG 18 March 2008 FINAL 18/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gerden v. Slovenia, 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,Luis López Guerra, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 26 February 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44581/98) against the Republic of Slovenia 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 Slovenian national, Mr Franc Gerden (“the applicant”), on 12 October 1998. 2. The applicant was represented by Mr H. Đjurković, a lawyer practising in Koper. 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. He also invoked Article 13 of the Convention, complaining about the lack of an effective domestic remedy in respect of the excessive length of the proceedings. He further alleged that the amendments to the Act on Implementation of Penal Sanctions violated his rights under Article 6 § 1 (unfair trial), Article 14, Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7 to the Convention.", "4. On 29 August 2006 the Court decided to give notice of the complaints concerning the length of the proceedings and the lack of remedies in this 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 I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1934 and lives in Trebnje. 1. Background of the case 6. On 24 September 1946 the Ljubljana Division Military Court (Divizijsko vojaško sodišče v Ljubljani) convicted the applicant’s uncle and legal predecessor, Mr A.Z., of the offence of collaboration with the “Black Hands” organisation during the Second World War. He was sentenced to 10 years’ deprivation of liberty with forced labour and forfeiture of property to the State.", "The applicant’s uncle lodged an appeal with the Military Court of the IVth Army (Vojaško sodišče IV. armije), which was dismissed on 25 October 1946. Following the conviction, the immovable assets belonging to the applicant’s uncle were expropriated by a ruling of the Grosuplje District Court (Okrajno sodišče v Grosupljem), rendered on 22 November 1946. 7. The applicant’s uncle died on 4 September 1949, bequeathing his movable assets to his sister, the applicant’s mother.", "She died in 1973, leaving her property to the applicant and his brother and sister. 8. In 1991, after the establishment of independence of the Republic of Slovenia and the change of the political regime, the applicant’s aunt requested the retrial of her brother, the applicant’s uncle. On 19 March 1993 the Ljubljana Basic Court, Ljubljana Unit (Temeljno sodišče v Ljubljani, Enota v Ljubljani) acceded to her request and re-opened the criminal proceedings. Following the withdrawal of all charges by the Prosecutor General, on 2 September 1993 the court terminated the proceedings and quashed the conviction.", "The decision became final on 19 September 1993. 2. Request for restitution of, or compensation for, the forfeited property 9. On 3 December 1993 the applicant initiated proceedings against the Grosuplje Municipality before the Ljubljana Basic Court, Grosuplje Unit (Temeljno sodišče v Ljubljani, Enota v Grosupljem), in order to obtain restitution of or compensation for the immovable assets forfeited by his uncle, invoking the Act on Implementation of Penal Sanctions. The forfeited property consisted of the following items: four houses, several plots of land, a hayrack and other farm outbuildings.", "10. On 1 April 1994 the applicant modified his request and included the Republic of Slovenia as an additional defendant in the restitution proceedings. He also urged the court to start processing his case. 11. On 5 December 1994 the court cancelled a scheduled hearing and adjourned it sine die.", "12. The applicant again modified his request and included the Municipality of Ivančna Gorica and the Municipality of Dobrepolje among the defendants. 13. On 21 April 1995 the court held a hearing, at which it decided to appoint an expert in building construction and an expert in agriculture. 14.", "On 1 March 1996 the applicant again modified his request in order to include among the defendants also the Farmland and Forest Fund of the Republic of Slovenia (Sklad kmetijskih zemljišč in gozdov, “the Fund”). He also lodged a request for a temporary injunction, and urged the court to deal promptly with the case. 15. On 19 March 1996 the court held another hearing, at which it decided to grant the requested temporary injunction. It also ordered the Fund to return three plots of land to the applicant.", "The Fund appealed. 16. The court upheld the appeal and changed its decision of 19 March 1996. That decision became final on 31 May 1996. 17.", "On 9 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on the Implementation of Penal Sanctions entered into force. It had the effect of suspending extant restitution claims under these two acts, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998. While those provisions were in abeyance, the Parliament passed the Act on Amendments and Supplements to the Act on Implementation of Penal Sanctions (see under “The Relevant Domestic Law and Practice”). 18. Between 10 September 1998 and 16 September 2003 the court held four hearings.", "At the hearing held on 10 September 1998 the court issued an order appointing an expert in building construction and an expert in agriculture. Neither the applicant nor his legal representative attended the hearing held on 12 September 2000. At the hearing held on 7 October 2002 the court decided to appoint another expert in building construction instead of the appointed one. 19. On 3 October 2003 the court terminated the restitution proceedings due to the withdrawal of all the applicant’s claims on 1 October 2003.", "The applicant subsequently recalled his withdrawal and lodged an appeal against the decision of the court of 3 October 2003. 20. On 4 November 2003 new claimants – further legal successors of the applicant’s uncle – requested to join the proceedings on the applicant’s side and appealed against the decision of the court of 3 October 2003 to terminate the proceedings. On 3 November 2004 the court quashed its decision of 3 October 2003 and decided to continue with the restitution proceedings. 21.", "On 21 April 2005 the re-named Grosuplje Local Court (Okrajno sodišče v Grosupljem) awarded compensation in bonds of the Slovenian Compensation Society amounting to 179,225,156 Slovenian tolars (“SIT”) (EUR 747,838) to be divided among the heirs of the late A.Z., from whom the property had been forfeited in 1946. The judgment became final on 23 May 2005. 3. Request for compensation for loss of profits 22. On 2 September 1996, on the basis of Sections 538 and 539 of the 1994 Act on Criminal Procedure, the applicant, his sister and his nephew lodged a formal request with the Ministry of Justice in order to secure their right to compensation for loss of profits amounting to 198,726,975.80 SIT.", "23. On 9 December 1996, further to the failure of the Ministry to respond to their request within the prescribed period of three months, they commenced proceedings in the Ljubljana District Court (Okrožno sodišče v Ljubljani). At that time, the lost profits were estimated by the applicant and his relatives at 198,726,975.80 SIT, from lost rent and income from the cultivation of the land. 24. On 24 March 1998 the court cancelled the scheduled hearing sine die due to the sick leave of the acting judge.", "25. On 3 June 1998 and 11 June 1998 the applicant urged the court to deal promptly with their case and to set the date for the first hearing. 26. On 6 July 1998 the court held a hearing, at which it decided to appoint an expert in building construction and an expert in agriculture. It further decided, with the consent of the parties, to adjourn the hearing until the Constitutional Court decided upon the applicant’s constitutional initiative challenging the amendments to the Act on Implementation of Penal Sanctions.", "27. On 23 March 2000 the court released the expert from his duties and appointed another expert in building construction. 28. On 21 February 2003 the applicant lodged a supervisory appeal in order to accelerate the proceedings before the court. The acting judge reported that the court was waiting for the final decision in the restitution proceedings.", "29. On 10 April 2003 the court held a hearing, at which the Republic of Slovenia requested the court to stay the proceedings until a final decision was taken in the restitution proceedings on the applicant’s right to restitution of the forfeited property. The court granted the request and on 5 May 2003 decided to await the decision in the restitution proceedings. According to the reasoning of the court, the issues dealt with in the restitution proceedings were of a preliminary nature for the court, since the amount of the compensation for loss of profits depended on the question whether the claimant was awarded the restitution of property in natura, or in the form of compensation for the forfeited property. 30.", "On 6 December 2005 the court held a hearing and rejected all the applicant’s claims. The applicant did not appeal, whereas his relatives did. As for the applicant, the judgment became final on 21 December 2005. II. THE RELEVANT DOMESTIC LAW AND PRACTICE 1.", "The Constitution of the Republic of Slovenia 31. The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are particularly relevant for the present case: Article 23 “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Article 26 “Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ...” 2. The Act on the Protection of the Right to a Trial without undue Delay 32.", "The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its Sections 1 and 2, the right to a trial within a reasonable time is guaranteed to a party to court proceedings, to a participant under the Act governing non-contentious proceedings and to an injured party in criminal proceedings. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: Section 25 - Just satisfaction for damage sustained prior to implementation of this Act “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office.", "The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” 3. The Denationalisation Act 33.", "The Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) forms the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.). 34. Section 3 provides that all natural persons whose property had passed into State ownership on the basis of the listed legislation adopted in the aftermath of the Second World War are entitled to denationalisation. Section 4 further specifies that all other natural persons whose property was nationalised by a legal act issued before 1963 are entitled to denationalisation.", "35. The Denationalisation Act governs, inter alia, the form and scope of restitution, the restrictions on restitution and the valuation of property. In particular, it provides for several exceptions in which the property should not be returned in natura, for example if the property belongs to the natural or cultural heritage of the State (Section 17). Furthermore, in its Sections 2 and 42 to 44 it provides that, where property cannot be returned in its original form, compensation is payable (not in cash but in State bonds payable in instalments over 15 years). 36.", "In accordance with Section 92, the Denationalisation Act originally applied also to the restitution of property in cases where the property was forfeited by virtue of criminal judgments handed down before 31 December 1958. Since the restitution of property to a wrongfully convicted person is otherwise governed by the Act on Implementation of Penal Sanctions, which does not provide for the above-mentioned restrictions on the restitution of the forfeited property, Section 92 of the Denationalisation Act had an effect of introducing a less favourable restitution regime where the criminal judgment had been rendered before 31 December 1958. This provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92, see below). 4.", "The Act on Temporary, Partial Suspension of Restitution of Property 37. On 30 December 1995, the Act on Temporary, Partial Suspension of Restitution of Property (Official Journal no. 74/95) entered into force. It held in abeyance certain types of restitution proceedings for a period of three years. 5.", "The 1997 Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions 38. On 9 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act of Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/97) entered into force. Its Section 2 suspended, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, proceedings concerning claims for the restitution of or compensation for property, inter alia in cases where the property had been confiscated by virtue of criminal judgments handed down before 31 December 1958. 6.", "The Act on Implementation of Penal Sanctions, as amended 39. Prior to the 1998 amendments, the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, Official Journal no. 17/78, 8/90) applied also to the restitution of property forfeited by criminal judgments which had been handed down before 31 December 1958 and had later been quashed (see the Constitutional Court’s decision mentioned under “3. The Denationalisation Act”). 40.", "The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Penal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) added new Sections 145A and 145C to the Act. As far as claims for restitution of property forfeited by criminal judgments handed down before 31 December 1958 are concerned, Section 145A replaced Section 145 and referred back to the Denationalisation Act to govern the form and scope of restitution, the restrictions on restitution and the valuation of property, thus providing again for a less favourable restitution regime than that granted under the Act on Implementation of Penal Sanctions. Section 145C expressly removed the right to compensation for loss of profits due to the forfeiture of property during the period of forfeiture. 41.", "Section 3 made the change applicable also in non-contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings had commenced before the Act came into force, but had not become final by that time. 42. In June 2002, further to the Constitutional Court’s ruling of 15 November 2001, Section 145C was amended again so that persons entitled under Section 145A may now claim compensation for loss of profits incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final. 7. The Constitutional Court’s decisions 43.", "On 5 November 1992 the Constitutional Court quashed Section 92 of the Denationalisation Act, which provided for the restitution of property forfeited by virtue of criminal judgments, which had been handed down before 31 December 1958 and later quashed on the basis of extraordinary legal remedies, to be governed by the Denationalisation Act (decision no. U-I-10/92). The court established that the challenged provisions interfered with the effect of final decisions on the quashing of the criminal judgments and retroactively affected the rights of wrongfully convicted persons. According to the court’s findings, the restitution of this type of property should instead be governed by the Act on Implementation of Penal Sanctions, which provided for a more favourable restitution regime. 44.", "On 13 February 1998 the Constitutional Court upheld in part a constitutional initiative challenging the provisions of the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions (a joined decision U-I-200/97). It ruled, inter alia, that the legislator had not complied with the requirement of proportionality when it suspended the two Acts and had thus affected the human rights of all the claimants in restitution proceedings in order to revise the restitution regime applying to only some of them. The court established that there was a violation of the constitutional rights protected under Article 14 (right to equality before the law). 45. Following a constitutional initiative lodged by the applicant and some other individuals, the Constitutional Court was called on to rule on the constitutionality of Sections 145A and 145C of the Act on Implementation of Penal Sanctions, which refer to the Denationalisation Act to govern the restitution of property forfeited by criminal judgments handed down before 31 December 1958, and thus provide for a less favourable restitution regime.", "The court held that the challenged provisions did not conflict with the Constitution, because such interference with the constitutional rights granted under Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Constitution was indispensable for the protection of the rights of other claimants under the Denationalisation Act, who were similarly entitled to reparation for the wrongs perpetrated in the aftermath of the Second World War (a joined decision no. U-I-60/98 of 16 July 1998). The principle of the Welfare State empowered the legislator, with due consideration paid to the right of all citizens to social security, to have regard to the financial resources of the State and, in cases which were constitutionally admissible, also to restrict certain rights accordingly. 46. The Constitutional Court also added that, when deciding on 5 November 1992 to quash Section 92 of the Denationalisation Act and to consider the Act on Implementation of Penal Sanction as the appropriate basis to govern the restitution of property forfeited by criminal judgments rendered prior to 31 December 1958 (decision no.", "U-I-10/92), it had been unaware of the full extent of the property forfeited through criminal proceedings prior to 31 December 1958 and thus also of the financial obligations incumbent on the State. 47. The Constitutional Court further ruled that Article 3 of the Act on Amendments of, and Supplements to, the Act on Implementation of Penal Sanctions was in conformity with the Constitution, notwithstanding the fact that it retroactively interfered with acquired rights, because the retroactive effect of the Act was justified by the public interest. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AS TO THE LENGTH OF THE PROCEEDINGS AND 13 OF THE CONVENTION 48.", "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 fair... hearing within a reasonable time by [a] ... tribunal...” 49. The applicant further complained that the remedies available for excessive length of court 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 50. The Government pleaded non-exhaustion of domestic remedies.", "51. The applicant contested that argument, claiming that the remedies available were not effective. 52. The Court notes that in the two sets of proceedings to which the applicant was a party, the judgments became final on 23 May 2005 and 21 December 2005, respectively. It follows that both sets of proceedings had terminated before the Act on the Protection of the Right to a Trial without undue Delay entered into force.", "The applicant could therefore only have availed himself of the legal remedies available before the Act became operational. The present application is thus 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, ECHR 2005-X, see also Grzinčič v. Slovenia, no. 26867/02, judgment, 3 May 2007).", "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 at that time were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time was a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 53. 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. 54.", "The Government’s objection must therefore be dismissed. The Court furthermore finds that the applicant’s complaint relating to the length of the proceedings 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 of the Convention (a) The parties’ submissions 55. The applicant maintained that the courts and the Republic of Slovenia as a defendant in both sets of proceedings continuously delayed the proceedings. In particular, he argued that it was not necessary for the court to await the decision of the Constitutional Court in order to decide the case, and further, that he was compelled to modify his claims on several occasions due to the legislation that had changed during the proceedings and which affected also the identity of the subjects liable for the restitution of property. 56.", "The Government claimed that the length of the two sets of proceedings was due not only to the complexity of the case, but first and foremost to the applicant’s conduct. They complained in particular that the applicant modified his claims before the courts and initiated the constitutionality review procedure, the outcome of which the court then had to await. As for the second set of proceedings, the Government further claimed that it could not have been dealt with more promptly, as the court had to await the final decision in the first set of proceedings. (b) The Court’s assessment (i) Period to be taken into consideration 57. In determining the relevant period to be taken into consideration, the Court notes that the first set of proceedings started on 3 December 1993, that is, before 28 June 1994 when the Convention took effect with respect to Slovenia.", "Given its jurisdiction ratione temporis, the Court can only consider the period which elapsed after that date, although it will have regard to the stage reached in the proceedings in the domestic courts on that date (see, for instance, Belinger, cited above, and Kudła v. Poland [GC], no. 30210/96, § 123, ECHR 2000‑XI). As far as the end of the period is concerned, the date to be taken into account with regard to the first set of proceedings is 23 May 2005, when the judgment of the Grosuplje Local Court became final. The period to be taken into account in the first set of proceedings is therefore nearly 10 years and 11 months, during which the applicant’s case was dealt with by one level of jurisdiction. 58.", "As for the second set of proceedings, the Court notes that it started on 9 December 1996, when the applicant lodged his request for compensation for loss of profits with the Ljubljana District Court. The date to be taken into account as the end of the second set of proceedings is 21 December 2005, when the proceedings became final with regard to the applicant. The second set of proceedings therefore lasted 9 years and 12 days, during which the case was dealt with by one level of jurisdiction. 59. 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). 60. The Court notes that the need to obtain expert reports in order to establish the facts of the case shows that the proceedings at issue were of some complexity. The Court also takes into account that what was at issue in the domestic proceedings was of some importance to the applicant. The Court further considers that the modifications of the applicant’s claims, his non-attendance of the scheduled hearing, his withdrawal of all his restitution claims and his subsequent recall of the withdrawal contributed to prolonging the proceedings.", "However, the Government, on the other hand, failed to provide any explanation for a number of delays and periods of inactivity of the judicial authorities. Thus, the court dealing with the first set of proceedings only held its first hearing almost a year and a half after the applicant had lodged his request for the restitution of the property. Furthermore, the same court needed more than three years from its decision to obtain an expert report until it in fact appointed the expert. The same court also appears to have been totally inactive during the period between the fourth and fifth hearings, during which more than two years had passed. Similarly, the court in the second set of proceedings stayed completely inactive for over a year and a half after the Constitutional Court had delivered the judgment the court was waiting for.", "61. 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. 62. There has accordingly been a breach of Article 6 § 1. 2.", "Article 13 of the Convention 63. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In this respect the Court notes that the objections and arguments put forward by the Government in respect of the legal remedies available before the Act on the Protection of the Right to a Trial without undue Delay entered into force, have been rejected in earlier cases (see Grzinčič, cited above) and sees no reason to reach a different conclusion in the present case. 64.", "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. ALLEGED VIOLATION OF ARTICLE 6 § 1 AS TO THE RIGHT TO A FAIR HEARING, ARTICLE 14, ARTICLE 1 OF PROTOCOL NO. 1 AND ARTICLE 3 OF PROTOCOL NO. 7 TO THE CONVENTION 65.", "The applicant further complained that the amendments to the Act on Implementation of Penal Sanctions violated his right to a fair trial guaranteed under Article 6 § 1 of the Convention, since they constituted an unfair interference by the State in the pending proceedings to which the State was a party. In substance, he also invoked Article 6 § 1 in conjunction with Article 14 of the Convention, alleging that the challenged amendments discriminated against those claimants for the restitution of forfeited property whose restitution proceedings were still pending before the courts when the challenged legislation introducing a less favourable restitution regime entered into force. The applicant also complained that the challenged amendments breached his right to property as guaranteed under Article 1 of Protocol No. 1, arguing that from the moment the criminal judgment was quashed, he had a right to obtain the full restitution of the property forfeited by the quashed judgment, as guaranteed by the Act on Implementation of Penal Sanctions at the material time, that is, before the challenged amendments entered into force. In addition, he claimed that the challenged amendments violated his right to full compensation for the wrongful conviction as guaranteed under Article 3 of Protocol No.", "7. Finally, the applicant invoked Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7 in conjunction with Article 14 of the Convention, alleging that the challenged amendments deprived him of his property on a discriminatory basis, as before the challenged legislation entered into force the successful claimants were entitled to full restitution. Article 14 of the Convention reads: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” In so far as relevant, Article 1 of Protocol No.", "1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” Article 3 of Protocol no. 7 provides: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non‑disclosure of the unknown fact in time is wholly or partly attributable to him.” 66. The Court observes that the applicant’s remaining claims all concern the amendments to the Act on Implementation of Penal Sanctions as adopted in 1998. In this respect, the Court reiterates that, in cases arising from individual applications, it is not its task to examine the domestic legislation in the abstract, but it must consider the manner in which that legislation was applied to the applicant in the particular circumstances (see Sommerfeld v. Germany [GC], no.", "31871/96, § 86, ECHR 2003‑VIII (extracts)). 67. The Court further observes that on 21 April 2005 the Grosuplje Local Court took the final decision with regard to the applicant’s claims for the restitution of forfeited property and awarded him compensation for the forfeited property. Furthermore, on 6 December 2005 the Ljubljana District Court took a final decision with regard to the applicant’s claims for compensation for loss of profits. 68.", "The Court further observes that the applicant did not lodge any appeal either against the judgment of the Grosuplje Local Court of 21 April 2005 or against the judgment of the Ljubljana District Court of 6 December 2005 to the Ljubljana Higher Court. 69. The Court reiterates that in accordance with the Article 35 of the Convention, the Court may only consider the complaints raised by the applicant after he has exhausted all domestic remedies (see, Sirc v. Slovenia (dec.), no. 44580/98, § 247, 22 June 2006). 70.", "Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaints before the said domestic courts. 71. It follows that this part of the application must be considered inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and rejected in accordance with Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicant claimed 10,000 Euros (EUR) in respect of non-pecuniary damage. 74. The Government contested the claim.", "75. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 8,000 under that head. B. Costs and expenses 76.", "The applicant claimed EUR 3,656 for the costs and expenses incurred before the Court, and EUR 1,983 for the costs and expenses incurred before the domestic courts. 77. The Government argued that the claim was excessively high and was not supported by any documents as far as the costs and expenses incurred before the domestic courts were concerned. 78. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "The Court further notes that the proceedings before the domestic courts were not at all aimed at remedying the violations of the Convention rights alleged by the applicant before the Court (see Scordino v. Italy (no. 1) no. 36813/98, 29 March 2006). It therefore considers that the applicant cannot claim the reimbursement of costs incurred before the domestic courts. Regard being had to the information in its possession and the above criteria, the Court considers it reasonable in the present case to award the applicant the sum of EUR 1,000 for the proceedings before the Court.", "C. Default interest 79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings and the lack of remedies with regard to excessive length of the proceedings admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as to the length of the proceedings; 3.", "Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) 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 18 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep Casadevall RegistrarPresident" ]
[ "SECOND SECTION CASE OF JASAVIĆ v. MONTENEGRO (Application no. 32655/11) JUDGMENT STRASBOURG 19 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Jasavić v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ledi Bianku, President,Nebojša Vučinić,Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 29 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32655/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Ekan Jasavić (“the applicant”), on 13 May 2011.", "2. The applicant was initially represented by Ms I. Šabović, a lawyer practicing in Podgorica, and subsequently by Ms S. Lompar, also a lawyer based in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Ms Valentina Pavličić. 3. On 16 December 2015 the complaint concerning the length of the proceedings in question 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 1964 and lives in Podgorica. 5. Between 3 December 2002 and 15 September 2003 the daily newspaper Dan published several articles about a human trafficking case in Montenegro, in which the applicant’s name was mentioned in various contexts. 6.", "On 22 October 2004 the applicant instituted civil proceedings against the publisher of the said newspaper, seeking compensation for non‑pecuniary damage due to violation of his honour and reputation caused by the publishing of untrue information about him. 7. On 4 June 2010, following a remittal, the Podgorica First Instance Court ruled partly in favour of the applicant, ordering the publisher to pay the applicant 8,000 euros (EUR) in non-pecuniary damages and to publish the judgment in Dan, the daily newspaper in question. 8. On 22 October 2010 the Podgorica High Court amended this judgment by awarding the applicant EUR 4,000 as compensation for the non-pecuniary damage suffered, which judgment was served on the applicant on 29 November 2010.", "9. The applicant lodged a constitutional appeal on 14 January 2011. 10. On 7 April 2011 the Constitutional Court dismissed the applicant’s appeal. This decision was served on the applicant on 19 May 2011.", "THE LAW I. SCOPE OF THE CASE 11. In his observations, the applicant repeated one of his initial complaints, in particular his complaint under Article 8 of the Convention. 12. The Court notes that the President of the Section, sitting in a single‑judge formation, had already declared this complaint inadmissible on 16 December 2015, upon communication of the remainder of the application to the Government.", "13. The Court recalls in this connection that it cannot examine the complaints which have already been declared inadmissible and that the scope of the case now before the Court is thus limited to the complaint which was communicated to the Government (see, mutatis mutandis, Stebnitskiy and Komfort v. Ukraine, no. 10687/02, § 39, 3 February 2011, and Terra Woningen B.V. v. the Netherlands, 17 December 1996, §§ 44-45, Reports of Judgments and Decisions 1996‑VI). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.", "The applicant complained that the length of the civil proceedings at issue had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” A. Admissibility 15. The Government argued that the judgment of the High Court of 22 October 2010 had been the final decision for the purposes of Article 35 § 1 of the Convention, since a constitutional appeal had not been an effective domestic remedy at the relevant time. The applicant having lodged his application on 13 May 2011, had thus not complied with the six‑month requirement set out in Article 35 § 1. 16. The applicant disagreed.", "17. In the present case, the applicant lodged his application with the Court on 13 May 2011, that is after the Constitutional Court’s decision had already been delivered to him. 18. The Court recalls that, although there may be exceptions justified by the specific circumstances of each case, the effectiveness of a particular remedy is normally assessed with reference to the date on which the application was lodged (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)).", "19. The Court notes in this regard that at the time when the present application was lodged a constitutional appeal was not an effective remedy in respect of length of proceedings (see Boucke v. Montenegro, no. 26945/06, § 79, 21 February 2012, Živaljević v. Montenegro, no. 17229/04, § 68, 8 March 2011), and that it became effective on 20 March 2015 (see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, § 123, 24 November 2015, and Vučeljić v. Montenegro (dec.), no.", "59129/15, § 31, 18 October 2016). It therefore considers that the applicant was not required to make use of this remedy at the time. 20. However, the applicant received the High Court’s judgment of 22 October 2010 on 29 November 2010 (see paragraph 8 above), which the Government never contested. Given that the applicant lodged his application with the Court on 13 May 2011, the Court concludes that the applicant clearly introduced his complaint within the six-month time‑limit, as set out in Article 35 § 1 of the Convention.", "21. In view of the above, the Government’s objection must be rejected. 22. Since the complaint in question is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must be declared admissible. B.", "Merits 23. The period to be taken into consideration began on 22 October 2004 and ended on 29 November 2010. The impugned proceedings thus lasted six years, one month and seven days at two instances. 24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 25. The Court considers that neither the complexity of the case nor the applicant’s conduct explains the length of proceedings. The Government did not supply any explanation for the delay or provide any comment on this matter. 26.", "Having examined all the material submitted to it and in view of its case-law on the subject, the Court considers that, in the absence of any justification, the length of proceedings of more than six years at two levels of jurisdiction was excessive and failed to meet the “reasonable time” requirement. 27. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. The applicant claimed non-pecuniary damage, but left it to the Court’s discretion as to the exact amount. 30. The Government contested this claim.", "31. In the Court view, it is clear that the applicant sustained some non‑pecuniary loss arising from the breach of his right under Article 6 of the Convention, for which he should be compensated. The Court therefore considers it reasonable to award the applicant EUR 1,500 in respect of non‑pecuniary damage, less any amounts which may have already been paid in that regard at the domestic level. B. Costs and expenses 32.", "The applicant also claimed EUR 3,315 for costs and expenses incurred before domestic courts, together with statutory interest, and EUR 800 for the costs and expenses incurred before the Court. 33. The Government contested these claims. 34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession, and the above criteria, the Court rejects the applicant’s claim for costs and expenses before the domestic courts as they were not incurred in order to remedy the violation in issue, but considers it reasonable to award the applicant EUR 500 for the proceedings before the Court. C. Default interest 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the applicant’s complaint about the length of 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: (i) EUR 1,500 (one thousand five hundred euros) less any amounts which may have already been paid in that connection at the domestic level, in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant; (ii) EUR 500 (five hundred euros) in respect of cost and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıLedi BiankuDeputy RegistrarPresident" ]
[ "COURT (GRAND CHAMBER) CASE OF GOODWIN v. THE UNITED KINGDOM (Application no. 17488/90) JUDGMENT STRASBOURG 27 March 1996 In the case of Goodwin v. the United Kingdom [1], The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of Court A [2], as a Grand Chamber composed of the following judges: MrR. Ryssdal, President, MrR. Bernhardt, MrThór Vilhjálmsson, MrF. Matscher, MrB.", "Walsh, MrC. Russo, MrA. Spielmann, MrJ. De Meyer, MrN. Valticos, MrsE.", "Palm, MrF. Bigi, SirJohn Freeland, MrA.B. Baka, MrD. Gotchev, MrB. Repik, MrP.", "Jambrek, MrP. Kuris, MrU. Lohmus, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 30 September 1995 and 22 February 1996, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 20 May 1994, within the three-month period laid down by Article 32 para.", "1 (art. 32-1) and Article 47 (art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in application (no. 17488/90) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art.", "25) by Mr William Goodwin, a British citizen, on 27 September 1990. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).", "The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10) of the Convention. 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).", "3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 28 May 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr C. Russo, Mr J.", "De Meyer, Mrs E. Palm, Mr A.B. Baka and Mr B. Repik (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4.", "As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the United Kingdom Government (\"the Government\"), the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made in consequence, the Registrar received the Government’s memorial on 3 February 1995 and the applicant’s memorial on 1 March. On 19 April 1995 the Secretary to the Commission indicated that the Delegate did not wish to reply in writing.", "On various dates between 12 April and 7 September 1995 the Registrar received from the Government and the applicant observations on his Article 50 (art. 50) claim. 5. On 24 February 1995 the President, having consulted the Chamber, granted leave to Article 19 and Interights, two London based non-governmental human rights organisations, to submit observations on national law in the area in question in the present case, as applicable in certain countries (Rule 37 para. 2).", "Their comments were filed on 10 March 1995. 6. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 April 1995. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Mr I. Christie, Foreign and Commonwealth Office,Agent, Mr M. Baker, QC,Counsel, Mr M. Collon, Lord Chancellor’s Department,Adviser; (b) for the Commission Mrs G.H.", "Thune,Delegate; (c) for the applicant Mr G. Robertson QC,Counsel, Mr G. Bindman, Solicitor, Mr R.D. Sack, Attorney, Ms A.K. Hilker, Attorney, Ms L. Moore, Attorney, Mr J. Mortimer QC,Advisers. The Court heard addresses by Mrs Thune, Mr Robertson and Mr Baker and also replies to a question put by one of its members individually. 7.", "Following deliberations on 27 April 1995 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 para. 1). 8. The Grand Chamber to be constituted included ex officio Mr Ryssdal, President of the Court, Mr R. Bernhardt, Vice-President of the Court, and the other members of the Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and (b)).", "On 5 May 1995, in the presence of the Registrar, the President drew by lot the names of the nine additional judges called on to complete the Grand Chamber, namely Mr F. Matscher, Mr A. Spielmann, Mr N. Valticos, Mr R. Pekkanen, Mr F. Bigi, Mr D. Gotchev, Mr P. Jambrek, Mr P. Kuris and Mr U. Lohmus (Rule 51 para. 2 (c)). Mr Pekkanen subsequently withdrew, being unable to take part in the further consideration of the case (Rule 24 para. 1 in conjunction with Rule 51 para. 6).", "9. Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicant, the Grand Chamber decided on 4 September 1995 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rules 26 and 38, taken together with Rule 51 para. 6). AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 10.", "Mr William Goodwin, a British national, is a journalist and lives in London. 11. On 3 August 1989 the applicant joined the staff of The Engineer, published by Morgan-Grampian (Publishers) Ltd (\"the publishers\"), as a trainee journalist. He was employed by Morgan Grampian PLC (\"the employer\"). On 2 November 1989 the applicant was telephoned by a person who, according to the applicant, had previously supplied him with information on the activities of various companies.", "The source gave him information about Tetra Ltd (\"Tetra\"), to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989 on a turnover of £20.3 million. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document. On 6 and 7 November 1989, intending to write an article about Tetra, he telephoned the company to check the facts and seek its comments on the information.", "The information derived from a draft of Tetra’s confidential corporate plan. On 1 November 1989 there had been eight numbered copies of the most recent draft. Five had been in the possession of senior employees of Tetra, one with its accountants, one with a bank and one with an outside consultant. Each had been in a ring binder and was marked \"Strictly Confidential\". The accountants’ file had last been seen at about 3 p.m. on 1 November in a room they had been using at Tetra’s premises.", "The room had been left unattended between 3 p.m. and 4 p.m. and during that period the file had disappeared. A. Injunction and orders for disclosure of sources and documents 12. On 7 November 1989 Mr Justice Hoffmann of the High Court of Justice (Chancery Division) granted an application by Tetra of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan. The company informed all the national newspapers and relevant journals of the injunction on 16 November.", "13. In an affidavit to the High Court dated 8 November 1989, Tetra stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors, its customers and in particular its suppliers, with a risk of loss of orders and of a refusal to supply the company with goods and services. This would inevitably lead to problems with Tetra’s refinancing negotiations. If the company went into liquidation, there would be approximately four hundred redundancies. 14.", "On 14 November 1989 Mr Justice Hoffmann, on an application by Tetra, ordered the publishers, under section 10 of the Contempt of Court Act 1981 (\"the 1981 Act\"; see paragraph 20 below), to disclose by 3 p.m. on 15 November the applicant’s notes from the above telephone conversation identifying his source. On the latter date, the publishers having failed to comply with the order, Mr Justice Hoffmann granted Tetra leave to join the applicant’s employer and the applicant himself to the proceedings and gave the defendants until 3 p.m. on the following day to produce the notes. On 17 November 1989 the High Court made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession. The motion was then adjourned for the applicant to bring this order to the attention of his source. However, the applicant declined to do so.", "15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary \"in the interests of justice\", within the meaning of section 10 of the 1981 Act (see paragraph 20 below), for the source’s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. The judge concluded: \"There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file. Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future. It is true that the source may notbe the person who stole the file.", "He may have had theinformation second hand, although this is less likely. Ineither case, however, he was trying to secure damagingpublication of information which he must have known to besensitive and confidential. According to the respondent,having given him the information he telephoned again a fewdays later to ask how the article was getting on. The plaintiff wishes to bring proceedings against the source forrecovery of the document, an injunction against furtherpublication and damages for the expense to which it has beenput. But it cannot obtain any of those remedies because itdoes not know whom to sue.", "In the circumstance of this case,in which a remedy against the source is urgently needed, Ithink that disclosure is necessary in the interests ofjustice. ... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the NorwichPharmacal case shows that this does not matter. The questionis whether he had become mixed up in the wrongdoing ... The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff’s confidential commercial information.", "Counsel forthe respondent says that the plaintiff’s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties. I reject this submission. Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation,whether in law or commercial morality, to make thatinformation available to its customers, suppliers andcompetitors. On the contrary, it seems to me that businesscould not function properly if such information could not be kept confidential.\" 16.", "On the same date the Court of Appeal rejected an application by the applicant for a stay of execution of the High Court’s order, but substituted an order requiring the applicant either to disclose his notes to Tetra or to deliver them to the Court of Appeal in a sealed envelope with accompanying affidavit. The applicant did not comply with this order. B. Appeals to the Court of Appeal and to the House of Lords 17. On 23 November 1989 the applicant lodged an appeal with the Court of Appeal from Mr Justice Hoffmann’s order of 22 November 1989.", "He argued that disclosure of his notes was not \"necessary in the interests of justice\" within the meaning of section 10 of the 1981 Act; the public interest in publication outweighed the interest in preserving confidentiality; and, since he had not facilitated any breach of confidence, the disclosure order against him was invalid. The Court of Appeal dismissed the appeal on 12 December 1989. Lord Donaldson held: \"The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity. The injunctionswould no doubt be effective to prevent publication in thepress, but they certainly would not effectively preventpublication to the plaintiffs’ customers or competitors. ... ...", "I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which, if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance, there would, Ithink, be a significant lessening in public confidence in theadministration of justice generally. Suffice it to say thatthe plaintiffs are a, and perhaps the, leader in their veryimportant field, which I deliberately do not identify, withnational and international customers and competitors. They are faced with a situation which is in part the result oftheir own success. They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money, but of a significant number of jobs. This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons.", "The plaintiffs are continuing with their refinancing discussionsmenaced by the source (or the source’s source) ticking awaybeneath them like a time bomb. Prima facie they are entitledto assistance in identifying, locating and defusing it. That I should have concluded that the disclosure of Mr Goodwin’s source is necessary in the interests of justiceis not determinative of this appeal. It does, however, meanthat I have to undertake a balancing exercise. On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources, which is the reasonwhy section 10 was enacted.", "On the other is, in my judgment,a particular case in which disclosure is necessary in thegeneral interests of the administration of justice. If thesetwo factors stood alone, the case for ordering disclosurewould be made out, because the parliamentary intention mustbe that, other things being equal, the necessity fordisclosure on any of the four grounds should prevail. Were it otherwise, there would be no point in having these doorways. But other things would not be equal if, on the particular facts of the case, there was some additional reason formaintaining the confidentiality of a journalistic source. It might, for example, have been the case that the information disclosed what, on the authorities, is quaintly called `iniquity’.", "Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares. Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources. Equally, onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial, the necessity fordisclosure `in the interests of justice’ might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced. Once the[plaintiffs] can get through a doorway, the balancing exercise comes into play. On the facts of this case, nothing is to be added to eitherside of the equation.", "The test of the needs of justice ismet, but not in superabundance. The general public interestin maintaining the confidentiality of journalistic sourcesexists, but the facts of this particular case add absolutelynothing to it. No `iniquity’ has been shown. No shareholders have been kept in the dark. Indeed the publichas no legitimate interest in the business of the plaintiffswho, although corporate in form, are in truth to becategorised as private individuals.", "This is in reality apiece of wholly unjustified intrusion into privacy. Accordingly, I am left in no doubt that, notwithstanding thegeneral need to protect journalistic sources, this is a casein which the balance comes down in favour of disclosure. Iwould dismiss the companies’ appeals. I can see no reason injustice for doing otherwise with regard to Mr Goodwin’sappeals.\" Lord Justice McCowan stated that the applicant must have been \"amazingly naïve\" if it had not occurred to him that the source had been at the very least guilty of breach of confidence.", "The Court of Appeal granted the applicant leave to appeal to the House of Lords. 18. The House of Lords upheld the Court of Appeal’s decision on 4 April 1990, applying the principle expounded by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases 133, a previous leading case: \"if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers.\" Lord Bridge, in the first of the five separate speeches given in the applicant’s case, underlined that in applying section 10 it was necessary to carry out a balancing exercise between the need to protect sources and, inter alia, the \"interests of justice\". He referred to a number of other cases in relation to how the balancing exercise should be conducted (in particular Secretary of State for Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued: \"... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing one public interest against another.", "A questionarising under this part of section 10 has not previously comebefore your Lordships’ House for decision. In discussing thesection generally Lord Diplock said in Secretary of State forDefence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,350: `The exceptions include no reference to \"the public interest\"generally and I would add that in my view the expression\"justice\", the interests of which are entitled to protection,is not used in a general sense as the antonym of \"injustice\"but in the technical sense of the administration of justicein the course of legal proceedings in a court of law, or, byreason of the extended definition of \"court\" in section 19 ofthe Act of 1981 before a tribunal or body exercising thejudicial power of the state.’ I agree entirely with the first half of this dictum. To construe `justice’ as the antonym of `injustice’ insection 10 would be far too wide. But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law’ seems to me,with all respect due to any dictum of the late Lord Diplock,to be too narrow. It is, in my opinion, `in the interests of justice’, in the sense in which this phrase is used insection 10, that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives.Thus, to take a very obvious example, if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant, it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment,notwithstanding that no legal proceedings may be necessary to achieve that end.", "Construing the phrase `in the interests of justice’ in thissense immediately emphasises the importance of the balancingexercise. It will not be sufficient, per se, for a partyseeking disclosure of a source protected by section 10 toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure. The judge’s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand. In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached. Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge’s discretion,but, like many other questions of fact, such as the questionof whether somebody has acted reasonably in givencircumstances, it will call for the exercise of adiscriminating and sometimes difficult value judgment.", "Inestimating the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection 10 on the other hand, many factors will be relevanton both sides of the scale. It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout. But it may not be out of place to indicate the kind offactors which will require consideration. In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located. If the party seeking disclosure shows,for example, that his very livelihood depends upon it, thiswill put the case near one end of the spectrum.", "If he showsno more than that what he seeks to protect is a minorinterest in property, this will put the case at or near theother end. On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum. One importantfactor will be the nature of the information obtained fromthe source. The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher, the greater will be the importance ofprotecting the source. But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source.", "If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source.Conversely, if it appears that the information was obtainedillegally, this will diminish the importance of protectingthe source unless, of course, this factor is counterbalancedby a clear public interest in publication of the information,as in the classic case where the source has acted for thepurpose of exposing iniquity. I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ... In the circumstances of the instant case, I have no doubtthat [the High Court] and the Court of Appeal were right infinding that the necessity for disclosure of Mr Goodwin’snotes in the interests of justice was established. Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business, andconsequentially to the livelihood of their employees, whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing. This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document.", "The importance of protecting the source onthe other hand is much diminished by the source’s complicity,at the very least, in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve.Disclosure in the interests of justice is, on this view ofthe balance, clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied...\" Lord Templeman added that the applicant should have \"recognised that [the information] was both confidential and damaging\". C. Fine for contempt of court 19. In the meantime, on 23 November 1989, the applicant had been served with a motion seeking his committal for contempt of court, an offence which was punishable by an unlimited fine or up to two years’ imprisonment (section 14 of the 1981 Act). On 24 November, at a hearing in the High Court, counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal. Following the House of Lord’s dismissal of the appeal, the High Court, on 10 April 1990, fined the applicant £5,000 for contempt of court.", "II. RELEVANT DOMESTIC LAW 20. Section 10 of the Contempt of Court Act 1981 provides: \"No court may require a person to disclose, nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible, unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime.\" 21. Section 14[3] reads: \"In any case where a court has power to commit a person toprison for contempt of court and (apart from this provision)no limitation applies to the period of committal, thecommittal shall (without prejudice to the power of the courtto order his earlier discharge) be for a fixed term, and thatterm shall not on any occasion exceed two years in the caseof committal by a superior court, or one month in the case ofcommittal by an inferior court.\"", "22. In Secretary of State for Defence v. Guardian Newspapers Lord Diplock considered the expression \"interests of justice\" in section 10 of the 1981 Act: \"The exceptions include no reference to the ‘public interest’generally and I would add that in my view the expression’justice’, the interests of which are entitled to protection,is not used in a general sense as the antonym of ‘injustice’but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [The expression `interests of justice’] ... refers to theadministration of justice in particular legal proceedingsalready in existence or, in the type of `bill of discovery’case ... exemplified by the Norwich Pharmacal Co. v. Customsand Excise Commissioners ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained. I find it difficult toenvisage a civil action in which section 10 of the [1981] Actwould be relevant other than one of defamation or fordetention of goods where the goods, as in the instant caseand in British Steel Corporation v. Granada Television ...consist of or include documents that have been supplied tothe media in breach of confidence.\" PROCEEDINGS BEFORE THE COMMISSION 23. In his application (no.", "17488/90) of 27 September 1990 to the Commission, the applicant complained that the imposition of a disclosure order requiring him to reveal the identity of a source violated his right to freedom of expression under Article 10 (art. 10) of the Convention. 24. The Commission declared the application admissible on 7 September 1993. In its report of 1 March 1994 (Article 31) (art.", "31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (by eleven votes to six). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS MADE TO THE COURT 25. At the hearing on 24 April 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of Article 10 (art.", "10) of the Convention. 26. On the same occasion the applicant reiterated his request to the Court, stated in his memorial, to find that there had been a breach of Article 10 (art. 10) and to award him just satisfaction under Article 50 (art. 50) of the Convention.", "AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION 27. The applicant alleged that the disclosure order requiring him to reveal the identity of his source and the fine imposed upon him for having refused to do so constituted a violation of Article 10 (art. 10) of the Convention, which reads: \"1.", "Everyone has the right to freedom of expression. Thisright shall include freedom to hold opinions and to receiveand impart information and ideas without interference bypublic authority and regardless of frontiers. ThisArticle (art. 10) shall not prevent States from requiring thelicensing of broadcasting, television or cinema enterprises. 2.", "The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as areprescribed by law and are necessary in a democratic society,in the interests of national security, territorial integrityor public safety, for the prevention of disorder or crime,for the protection of health or morals, for the protection ofthe reputation or rights of others, for preventing thedisclosure of information received in confidence, or formaintaining the authority and impartiality of the judiciary.\" 28. It was undisputed that the measures constituted an interference with the applicant’s right to freedom of expression as guaranteed by paragraph 1 of Article 10 (art. 10-1) and the Court sees no reason to hold otherwise. It must therefore examine whether the interference was justified under paragraph 2 of Article 10 (art.", "10-2). A. Was the interference \"prescribed by law\"? 29. The Court observes that, and this was not disputed, the impugned disclosure order and the fine had a basis in national law, namely sections 10 and 14 of the 1981 Act (see paragraphs 20 and 21 above).", "On the other hand, the applicant maintained that as far as the disclosure order was concerned the relevant national law failed to satisfy the foreseeability requirement which flows from the expression \"prescribed by law\". 30. The Government contested this allegation whereas the Commission did not find it necessary to reach a conclusion on this point. 31. The Court reiterates that, according to its case-law, the relevant national law must be formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.", "A law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, for instance, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, para. 37). 32.", "The applicant argued that the interests-of-justice exception to the protection of sources under section 10 of the 1981 Act was not sufficiently precise to enable journalists to foresee the circumstances in which such an order could be made against them in order to protect a private company. By applying this provision to the present case, Lord Bridge had completely revised the interpretation given by Lord Diplock in Secretary of State for Defence v. Guardian Newspapers. The balancing exercise introduced by Lord Bridge amounted to subjective judicial assessment of factors based on retrospective evidence presented by the party seeking to discover the identity of the source (see paragraph 18 above). At the time the source provided the information, the journalist could not possibly know whether the party’s livelihood depended upon such discovery and could not assess with any degree of certainty the public interest in the information. A journalist would usually be in a position to judge whether the information was acquired by legitimate means or not, but would not be able to predict how the courts would view the matter.", "The law, as it stood, was no more than a mandate to the judiciary to order journalists to disclose sources if they were \"moved\" by the complaint of an aggrieved party. 33. The Court recognises that in the area under consideration it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the interests of justice. Contrary to what is suggested by the applicant, the relevant law did not confer an unlimited discretion on the English courts in determining whether an order for disclosure should be made in the interests of justice. Important limitations followed in the first place from the terms of section 10 of the 1981 Act, according to which an order for disclosure could be made if it was \"established to the satisfaction of the court that disclosure [was] necessary in the interests of justice\" (see paragraph 20 above).", "In addition, at the material time, that is when the applicant received the information from his source, there existed not only an interpretation by Lord Diplock of the interests-of-justice provision in section 10 in the case of Secretary of State for Defence v. Guardian Newspapers but also a ruling by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners (1973), to the effect that a person who through no fault of his own gets mixed up in wrongdoing may come under a duty to disclose the identity of the wrongdoer (see paragraphs 15, 18 and 22 above). In the Court’s view the interpretation of the relevant law made by the House of Lords in the applicant’s case did not go beyond what could be reasonably foreseen in the circumstances (see, mutatis mutandis, the recent S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, para. 36).", "Nor does it find any other indication that the law in question did not afford the applicant adequate protection against arbitrary interference. 34. Accordingly, the Court concludes that the impugned measures were \"prescribed by law\". B. Did the interference pursue a legitimate aim?", "35. It was not disputed before the Convention institutions that the aim of the impugned measures was to protect Tetra’s rights and that the interference thus pursued a legitimate aim. The Government maintained that the measures were also taken for the prevention of crime. 36. The Court, being satisfied that the interference pursued the first of these aims, does not find it necessary to determine whether it also pursued the second.", "C. Was the interference \"necessary in a democratic society\"? 37. The applicant and the Commission were of the opinion that Article 10 (art. 10) of the Convention required that any compulsion imposed on a journalist to reveal his source had to be limited to exceptional circumstances where vital public or individual interests were at stake. This test was not satisfied in the present case.", "The applicant and the Commission invoked the fact that Tetra had already obtained an injunction restraining publication (see paragraph 12 above), and that no breach of that injunction had occurred. Since the information in question was of a type commonly found in the business press, they did not consider that the risk of damage that further publication could cause was substantiated by Tetra, which had suffered none of the harm adverted to. The applicant added that the information was newsworthy even though it did not reveal matters of vital public interest, such as crime or malfeasance. The information about Tetra’s mismanagement, losses and loan-seeking activities was factual, topical and of direct interest to customers and investors in the market for computer software. In any event, the degree of public interest in the information could not be a test of whether there was a pressing social need to order the source’s disclosure.", "A source may provide information of little value one day and of great value the next; what mattered was that the relationship between the journalist and the source was generating the kind of information which had legitimate news potential. This was not to deny Tetra’s entitlement to keep its operations secret, if it could, but to contest that there was a pressing social need for punishing the applicant for refusing to disclose the source of the information which Tetra had been unable to keep secret. 38. The Government contended that the disclosure order was necessary in a democratic society for the protection of \"the rights\" of Tetra. The function of the domestic courts was both to ascertain facts and, in the light of the facts established, to determine the legal consequences which should flow from them.", "In the Government’s view, the supervisory jurisdiction of the Convention institutions extended only to the latter. These limitations on the Convention review were of importance in the present case, where the national courts had proceeded on the basis that the applicant had received the information from his source in ignorance as to its confidential nature, although, in fact, this was something he ought to have recognised. Moreover, the source was probably the thief of the confidential business plan and had improper motives for divulging the information. In addition, the plaintiffs would suffer serious commercial damage from further publication of the information. These findings by the domestic courts were based upon the evidence which was placed before them.", "It was further submitted that there was no significant public interest in the publication of the confidential information received by the applicant. Although there is a general public interest in the free flow of information to journalists, both sources and journalists must recognise that a journalist’s express promise of confidentiality or his implicit undertaking of non-attributability may have to yield to a greater public interest. The journalist’s privilege should not extend to the protection of a source who has conducted himself mala fide or, at least, irresponsibly, in order to enable him to pass on, with impunity, information which has no public importance. The source in the present case had not exercised the responsibility which was called for by Article 10 (art. 10) of the Convention.", "The information in issue did not possess a public-interest content which justified interference with the rights of a private company such as Tetra. Although it was true that effective injunctions had been obtained, so long as the thief and the source remained untraced, the plaintiffs were at risk of further dissemination of the information and, consequently, of damage to their business and to the livelihood of their employees. There were no other means by which Tetra’s business confidence could have been protected. In these circumstances, according to the Government, the order requiring the applicant to divulge his source and the further order fining him for his refusal to do so did not amount to a breach of the applicant’s rights under Article 10 (art. 10) of the Convention.", "39. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (see, as a recent authority, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, para. 31). Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms (see, amongst others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No.", "C 44/34). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest.", "These considerations are to be taken into account in applying to the facts of the present case the test of necessity in a democratic society under paragraph 2 of Article 10 (art. 10-2). 40. As a matter of general principle, the \"necessity\" for any restriction on freedom of expression must be convincingly established (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no.", "217, pp. 28-29, para. 50, for a statement of the major principles governing the \"necessity\" test). Admittedly, it is in the first place for the national authorities to assess whether there is a \"pressing social need\" for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press.", "Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10 (art. 10-2), whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court. The Court’s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 (art. 10) the decisions they have taken pursuant to their power of appreciation.", "In so doing, the Court must look at the \"interference\" complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are \"relevant and sufficient\". 41. In the instant case, as appears from Lord Bridge’s speech in the House of Lords, Tetra was granted an order for source disclosure primarily on the grounds of the threat of severe damage to their business, and consequently to the livelihood of their employees, which would arise from disclosure of the information in their corporate plan while their refinancing negotiations were still continuing (see paragraph 18 above). This threat, \"ticking away beneath them like a time bomb\", as Lord Donaldson put it in the Court of Appeal (see paragraph 17 above), could only be defused, Lord Bridge considered, if they could identify the source either as himself the thief of the stolen copy of the plan or as a means to lead to identification of the thief and thus put the company in a position to institute proceedings for the recovery of the missing document. The importance of protecting the source, Lord Bridge concluded, was much diminished by the source’s complicity, at the very least, in a gross breach of confidentiality which was not counterbalanced by any legitimate interest in publication of the information (see paragraph 18 above).", "42. In the Court’s view, the justifications for the impugned disclosure order in the present case have to be seen in the broader context of the ex parte interim injunction which had earlier been granted to the company, restraining not only the applicant himself but also the publishers of The Engineer from publishing any information derived from the plan. That injunction had been notified to all the national newspapers and relevant journals (see paragraph 12 above). The purpose of the disclosure order was to a very large extent the same as that already being achieved by the injunction, namely to prevent dissemination of the confidential information contained in the plan. There was no doubt, according to Lord Donaldson in the Court of Appeal, that the injunction was effective in stopping dissemination of the confidential information by the press (see paragraph 17 above).", "Tetra’s creditors, customers, suppliers and competitors would not therefore come to learn of the information through the press. A vital component of the threat of damage to the company had thus already largely been neutralised by the injunction. This being so, in the Court’s opinion, in so far as the disclosure order merely served to reinforce the injunction, the additional restriction on freedom of expression which it entailed was not supported by sufficient reasons for the purposes of paragraph 2 of Article 10 (art. 10-2) of the Convention. 43.", "What remains to be ascertained by the Court is whether the further purposes served by the disclosure order provided sufficient justification. 44. In this respect it is true, as Lord Donaldson put it, that the injunction \"would not effectively prevent publication to [Tetra’s] customers or competitors\" directly by the applicant journalist’s source (or that source’s source) (see paragraph 17 above). Unless aware of the identity of the source, Tetra would not be in a position to stop such further dissemination of the contents of the plan, notably by bringing proceedings against him or her for recovery of the missing document, for an injunction against further disclosure by him or her and for compensation for damage. It also had a legitimate reason as a commercial enterprise in unmasking a disloyal employee or collaborator, who might have continuing access to its premises, in order to terminate his or her association with the company.", "45. These are undoubtedly relevant reasons. However, as also recognised by the national courts, it will not be sufficient, per se, for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his or her claim in order to establish the necessity of disclosure (see paragraph 18 above). In that connection, the Court would recall that the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 (art. 10-2) tip the balance of competing interests in favour of the interest of democratic society in securing a free press (see paragraphs 39 and 40 above).", "On the facts of the present case, the Court cannot find that Tetra’s interests in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source. The Court does not therefore consider that the further purposes served by the disclosure order, when measured against the standards imposed by the Convention, amount to an overriding requirement in the public interest. 46. In sum, there was not, in the Court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art.", "10-2), for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities. Accordingly, the Court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10 (art. 10). II. APPLICATION OF ARTICLE 50 (art.", "50) OF THE CONVENTION 47. Mr William Goodwin sought just satisfaction under Article 50 (art. 50) of the Convention, which reads: \"If the Court finds that a decision or a measure taken by alegal authority or any other authority of a High ContractingParty is completely or partially in conflict with theobligations arising from the ... Convention, and if theinternal law of the said Party allows only partial reparationto be made for the consequences of this decision or measure,the decision of the Court shall, if necessary, afford justsatisfaction to the injured party.\" A. Non-pecuniary damage 48. The applicant claimed 15,000 pounds sterling for non-pecuniary damage, on account of mental anguish, shock, dismay and anxiety which he felt as a result of the proceedings against him.", "For five months he was in constant peril of being sent to prison, for up to two years, as a punishment for obeying his conscience and for living up to his ethical obligations as a journalist. He still has to live with a criminal record since his crime of contempt of court would not be expunged by a finding of breach by the Court. He had been the subject of harassment by court process servers and his employers so as to comply with a court order against themselves, all of which was added to the pressure exerted on him by the threat of dismissal if he did not disclose the identity of his source. 49. The Government objected to the applicant’s claim on the ground that the alleged adverse consequences stemmed from the fact that he was defying and disobeying the law.", "Even if he considered it a bad law, he should have obeyed the order to provide the information to the court in a sealed envelope, or, at the very least, he should have recognised his duty to obey the disclosure order when he lost his case in the House of Lords. Had he done so, the Government would have found it difficult to resist a claim for compensation for any adverse consequences. 50. The Court is not persuaded by the Government’s arguments. What matters under Article 50 (art.", "50) is whether the facts found to constitute a violation have resulted in non-pecuniary damage. In the present case, the Court finds it established that there was a causal link between the anxiety and distress suffered by the applicant and the breach found of the Convention. However, in the circumstances of the case, the Court considers that this finding constitutes adequate just satisfaction in respect of the damage claimed under this head. B. Costs and expenses 51.", "The applicant further sought reimbursement of costs and expenses totalling £49,500, in respect of the following items specified in his memorial to the Court of 1 March 1995: (a) £19,500 for counsel’s fees for drafting the application to the Commission and written observations to the latter and the Court and for preparing and presenting the case before both the Commission and the Court; (b) £30,000 for work by the applicant’s solicitors in connection with the proceedings before the Commission and the Court. To the above amounts should be added any applicable value added tax (VAT). 52. The Government, by letter of 11 April 1995, invited the applicant to provide a detailed breakdown of the costs. 53.", "In a letter of 25 July 1995 the applicant stated that the solicitors’ work before the Commission and Court amounted to a total of 136 hours at, on average, £250 per hour for a senior partner and £150 per hour for an assistant solicitor. 54. On 30 August 1995, the Government submitted their comments on the breakdown provided by the applicant. Without prejudice to the Court’s decision regarding the belatedness of the applicant’s claim, they stated that they considered that the £19,500 sought in respect of counsel was unreasonably high and that £16,000 would be reasonable. As to solicitors’ fees, the Government regarded the rates and the number of hours claimed as excessive.", "In their view 110 hours at an average rate of £160 per hour for a senior partner and £100 per hour for an assistant solicitor would be reasonable. According to the Government’s calculations, it would be reasonable to indemnify the applicant £37,595.50 (VAT included) for costs. 55. By letter of 1 September 1995, the applicant stressed that the number of hours and the hourly rates claimed were reasonable. He conceded that if the Court found in his favour, it could properly in its discretion award the amounts indicated by the Government.", "He stated that he would be prepared to settle for a total figure midway between the total figures contended for by the two parties. 56. The Court considers the sum conceded by the Government to be adequate in the circumstances of the present case. The Court therefore awards the applicant £37,595,50 (VAT included) for legal costs and expenses, less the 9,300 French francs already paid in legal aid by the Council of Europe in respect of legal fees. C. Default interest 57.", "According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum. FOR THESE REASONS, THE COURT 1. Holds by eleven votes to seven that there has been aviolation of Article 10 (art. 10) of the Convention; 2. Holds unanimously that the finding of a violation constitutesadequate just satisfaction for the non-pecuniary damagesuffered by the applicant; 3.", "Holds unanimously: (a) that the respondent State is to pay to the applicant,within three months, in respect of costs and expenses£37,595.50 (thirty seven thousand, five hundred and ninetyfive pounds sterling and fifty pence) less 9,300 (ninethousand, three hundred) French francs to be converted intopounds sterling at the rate applicable on the date ofdelivery of the present judgment; (b) that simple interest at an annual rate of 8% shall bepayable from the expiry of the above-mentioned three monthsuntil settlement; 4. Dismisses unanimously the remainder of the claim for justsatisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 March 1996. Rolv RYSSDAL President Herbert PETZOLD Registrar In accordance with Article 51 para. 2 (art.", "51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr De Meyer; (b) joint dissenting opinion of Mr Ryssdal, Mr Bernhardt,Mr Thór Vilhjálmsson, Mr Matscher, Mr Walsh, Sir JohnFreeland and Mr Baka; (c) separate dissenting opinion of Mr Walsh. R. R. H. P. CONCURRING OPINION OF JUDGE DE MEYER I fully agree with the Court’s conclusion that the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so violated his right to freedom of expression. I would however observe that so did also, in my view, the earlier injunction against publication of the information[4], since it was an utterly unacceptable form of prior restraint [5]. Even if there had not been such an injunction the disclosure order and the ensuing fine would not have been legitimate.", "The protection of a journalist’s source is of such a vital importance for the exercise of his right to freedom of expression that it must, as a matter of course, never be allowed to be infringed upon, save perhaps in very exceptional circumstances, which certainly did not exist in the present case. JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BERNHARDT, THÓR VILHJÁLMSSON, MATSCHER, WALSH, SIR JOHN FREELAND AND BAKA 1. We are unable to agree that, as the majority conclude in paragraph 46 of the judgment, \"both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10 (art. 10)\". 2.", "We of course fully accept that, as is recalled in paragraph 39 of the judgment, freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. We likewise agree that, as the paragraph goes on to say, \"Protection of journalistic sources is one of the basic conditions for press freedom ... Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected\". It follows that an order for source disclosure cannot be compatible with Article 10 (art.", "10) of the Convention unless it is justified under paragraph 2 of that Article (art. 10-2). 3. Where we part company with the majority is in the assessment of whether, in the circumstances of the present case, such a justification existed - whether, in particular, the test of necessity in a democratic society should be regarded as having been satisfied. 4.", "As regards the test in domestic law, section 10 of the Contempt of Court Act 1981 clearly gives statutory force to a presumption against disclosure of sources. It provides (see paragraph 20 of the judgment) that no court may require disclosure \"unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime\". 5. As explained by Lord Bridge in the House of Lords in the applicant’s case, this statutory restriction operates unless the party seeking disclosure can satisfy the court that \"disclosure is necessary\" in the interests of one of the four matters of public concern that are listed in the section. In asking himself the question whether disclosure of the source of some particular information is necessary to serve one of the interests in question, the judge has to engage in a balancing exercise: he must start \"with the assumptions, first, that the protection of sources is itself a matter of high public importance, secondly, that nothing less than necessity will suffice to override it, thirdly, that the necessity can only arise out of concern for another matter of high public importance, being one of the four interests listed in the section\".", "Dealing with the way in which the judge should determine necessity where, as here, the relevant interests are those of justice, Lord Bridge said that it would never be enough for a party seeking disclosure of a source protected by the section to show merely that he will be unable without disclosure to exercise a legal right or avert a threatened legal wrong. \"The judge’s task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached.\" 6. Given that, as the judgment accepts, the protection of Tetra’s rights by way of the \"interests-of-justice\" exception amounts to the pursuit of a legitimate aim under paragraph 2 of Article 10 (art.", "10-2), the domestic-law test of necessity strikingly resembles that required by the Convention. The domestic courts at three levels, on the basis of all the evidence which was before them, concluded that disclosure was necessary in the interests of justice. Factors which Lord Bridge stressed, in support of his conclusion that the judge at first instance and the Court of Appeal were right in finding that the necessity for disclosure in the interests of justice was established, were the following. First, the importance to Tetra of obtaining disclosure lay in the threat of severe damage to their business, and consequentially to the livelihood of their employees, which would arise from disclosure of the information contained in their corporate plan while their refinancing operations were still continuing. This threat could only be defused if they could identify the source as himself the thief of the stolen copy of the plan or as a means to lead to identification of the thief and thus put themselves in a position to institute proceedings for the recovery of the missing document.", "Secondly, the importance of protecting the source was much diminished by the source’s complicity, at the very least, in a gross breach of confidentiality which was not counterbalanced by any legitimate interest which publication of the information was calculated to serve. In this view of the balance, disclosure in the interests of justice was clearly of preponderating importance so as to override the policy underlying the statutory protection of sources and the test of necessity for disclosure was satisfied. 7. The judgment, on the other hand, concludes that there was not a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim (paragraph 46). In reaching this conclusion, the judgment first says (rightly), in paragraph 42, that the justifications for the disclosure order have to be seen in the broader context of the injunction which Tetra had already obtained.", "That injunction was effective in stopping dissemination of the confidential information by the press, so that a \"vital component of the threat of damage to the company had ... already largely been neutralised ...\". \"This being so\", the paragraph continues \"... in so far as the disclosure order merely served to reinforce the injunction, the additional restriction on freedom of expression which it entailed was not supported by sufficient reasons for the purposes of paragraph 2 of Article 10 (art. 10-2) ..\". 8. To suggest, however, that the disclosure order may have \"merely served to reinforce the injunction\" is to misstate the case.", "As the decisions of the domestic courts explain, the purpose of the disclosure order was to extend the protection of Tetra’s rights by closing gaps left by the injunction. The injunction bit upon the press, but it would not effectively prevent publication to Tetra’s customers or competitors directly by the applicant’s source (or that source’s source). Without knowing the identity of the source, Tetra would not be in a position to stop further dissemination of the contents of the plan by bringing proceedings against him for recovery of the missing document, for an injunction prohibiting further disclosure by him and for damages. Nor would they be able to remove any threat of further harm to their interests from a possible disloyal employee or collaborator who might enjoy continued access to their premises. 9.", "These further purposes served by the disclosure order are considered in paragraphs 44 and 45 of the judgment. The latter paragraph, after recalling that the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 (art. 10-2) \"tip the balance of competing interests in favour of the interest of democratic society in securing a free press\", asserts that Tetra’s interests in securing the additional measures of protection sought through the disclosure order were insufficient to outweigh the vital public interest in the protection of the applicant’s source. 10. No detailed assessment of these interests of Tetra’s is, however, undertaken, and in the absence of it there is no satisfactory basis for the balancing exercise which the Court is required to undertake.", "The domestic courts were, in any event, better placed to evaluate, on the basis of the evidence before them, the strength of those interests, and in our view the conclusion which they reached as to where, in the light of their evaluation, the corresponding balance should be struck was within the margin of appreciation allowed to the national authorities. 11. We therefore conclude that neither the disclosure order nor the fine imposed upon the applicant for his failure to comply with it gave rise to a violation of his right to freedom of expression under Article 10 (art. 10). SEPARATE DISSENTING OPINION OF JUDGE WALSH 1.", "In his opening address to the Court counsel for the applicant stated that his client was \"claiming no special privilege by virtue of his profession because journalists are not above the law\". Yet it appears to me that the Court in its decision has decided in effect that under the Convention a journalist is by virtue of his profession to be afforded a privilege not available to other persons. Should not the ordinary citizen writing a letter to the papers for publication be afforded an equal privilege even though he is not by profession a journalist? To distinguish between the journalist and the ordinary citizen must bring into question the provisions of Article 14 (art. 14) of the Convention.", "2. In the present case the applicant did not suffer any denial of expressing himself. Rather has he refused to speak. In consequence a litigant seeking the protection of the law for his interests which were wrongfully injured is left without the remedy the courts had decided he was entitled to. Such a result is certainly a matter of public interest and the applicant has succeeded in frustrating his national courts in their efforts to act in the interests of justice.", "It is for the national courts to decide whether or not the document in question was stolen. Yet the applicant claims that because he does not believe it was stolen he can justify his refusal to comply with the court order made in his case. His attitude and his words give the impression that he would comply if he believed the document in question had been stolen. He is thus setting up his personal belief as to truth of a fact which is exclusively within the domain of the national courts to decide as a justification for not obeying the order of the courts simply because he does not agree with the judicial findings of fact. 3.", "It does not appear to me that anything in the Convention permits a litigant to set up his own belief as to the facts against the finding of fact made by the competent courts and thereby seek to justify a refusal to be bound by such judicial finding of fact. To permit him to do so simply because he is a journalist by profession is to submit the judicial process to the subjective assessment of one of the litigants and to surrender to that litigant the sole decision as to the moral justification for refusing to obey the court order in consequence of which the other litigant is to be denied justice and to suffer damage. Thus there is a breach of a primary rule of natural justice - no man is to be the judge of his own cause. [1] . The case is numbered 16/1994/463/544.", "The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of corresponding originating applications to the Commission. [2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently [3] For practical reasons this annex will appear only with the printed version of the judgment (Reports 1996-II), but a copy of the Commission's report is obtainable from the Registry.", "[4] Paragraphs 12 and 42 of the judgement. [5] See my partly dissenting opinion on that matter in the case of Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p.46" ]
[ "FIRST SECTION CASE OF A.A. v. RUSSIA (Application no. 49097/08) JUDGMENT STRASBOURG 17 January 2012 FINAL 17/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.A. 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,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49097/08) 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 A.A. (“the applicant”), on 10 September 2008. The President of the Chamber acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 5 July 2010 the President of the First Section decided to give priority treatment to the application and to give notice of it 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 4. The applicant was born in 1945 and is serving a prison term in colony no. 6 in the Kirov Region.", "I. THE CIRCUMSTANCES OF THE CASE A. Alleged ill-treatment 1. The parties’ versions of the events 5. The applicant and several others were suspected of kidnapping a Mr K. for ransom in the Dagestan Republic.", "The case was investigated by Mr A., an investigator in the Khasavyurt town prosecutor’s office, Dagestan Republic. 6. On 23 April 2006 the applicant was arrested, apparently by officers D. and Z., while he was driving a car in the town of Khasavyurt. As noted in the arrest record, the arrest was recorded on video. According to the applicant, a bag was placed on his head, he was put into a police car and allegedly received several blows to the head and stomach.", "He was then taken to the local Organised Crime Unit (OCU). He was severely beaten up by several individuals, including the above-mentioned officer Z. (the head of the OCU), and subsequently remained at the OCU (see also paragraphs 11 and 20 below). Despite beatings, he refused to admit to the kidnapping or any other offences. 7.", "On the same day, the applicant was interviewed in the OCU by investigator A. The arrest record, which was signed by two attesting witnesses, indicates that the applicant was suspected of kidnapping and that his son had been notified of his arrest. The applicant made the following statement in the record: “I am not acquainted with the kidnapping victim...I would like to see a lawyer and ask that all subsequent investigative measures be carried out in his presence.” The applicant was provided with legal assistance at some point between 23 and 25 April 2006 (see also paragraph 9 below). 8. Also, on 23 April 2006 a search of his mother’s house, where the applicant was living at the time, was carried out.", "Another search was carried out some two weeks later. 9. On 25 April 2006 the Khasavyurt Town Court remanded the applicant in custody. The text of the court decision indicates that the applicant and his counsel were present at the hearing. According to the Government, during this hearing the defence made no allegations of ill-treatment and no health-related complaints.", "According to the applicant, he was not brought to this hearing from the OCU. 10. According to the Government, on the day of his arrest the applicant was admitted to the Khasavyurt temporary detention centre at the police station, where he was examined by a medical assistant, who did not record any health complaints and did not detect any visible injuries. 11. According to the applicant, he was kept until 9 May 2006 at the OCU premises, except for two or three days in solitary confinement in the temporary detention centre (apparently on 7 or 8 and 9 May 2006).", "The police station, the OCU and the temporary detention centre were, at the time, located in the immediate vicinity. According to the applicant, the beatings continued in the OCU until 9 May 2006. He remained handcuffed all the time; for extended periods of time he was attached to a radiator by the handcuffs. He sustained fractures of his right arm and one of his legs (see also paragraph 46 below). He was not given any food or drink and was not allowed to sleep.", "The applicant was forced to sit on a bottle on at least three occasions, which provoked acute bleeding from the anus. He was also forced to stand in a position of doing the splits, while his arms remained handcuffed behind his back. The applicant was sexually assaulted at night from 8 to 9 May 2006. OCU head officer Z. and investigator A. brought in three relatives of the kidnapping victim, who had been told that the applicant had kidnapped their relative. The applicant was beaten on the kidneys and head with a plastic bottle filled with water; he was hit on the legs with a shovel handle.", "His co-accused, Mr Ib., was told to have sexual intercourse with him. Acts of torture were photographed by one of the kidnap victim’s relatives. The applicant was told that if he refused to confess, the photographs would be distributed among his neighbours and other detainees. The photographs were subsequently distributed in the remand centre and were later examined at the trial (see below). 12.", "According to the applicant, officers of the temporary detention centre saw the officers beating him up but took no action to put a stop to the beatings or to alert the authorities. The applicant was not provided with any medical assistance in the temporary detention centre, in particular after 9 May 2006. 13. The Government submitted written statements, apparently made in 2010, by three officers of the temporary detention centre, on duty at the time. They affirmed that no force had been used against the applicant in that detention facility; and that the logbooks recording detainees’ admission to or departure from the detention centre and the police station had been destroyed during an explosion in the police station in 2009.", "According to the Government, the applicant had been taken from the detention centre for measures connected with the investigation but had not had any contact with OCU officers. According to the Government, emergency services were called to examine the applicant when he complained of stomach and kidney pains on 30 April and 9 and 10 May 2006; no fractures were recorded. According to the applicant, he was examined by paramedics in the presence of OCU officers, who attempted to put pressure on them. 14. According to the applicant, his adolescent son was also arrested and detained for three days.", "He saw the applicant in bad condition. He stated that his wife was also kept in detention, with their young daughter. 15. On 11 May (15 or 16 May according to the applicant) 2006 the applicant was transported from the temporary detention centre to Khasavyurt remand centre no. 3/5.", "He was then brought back to the temporary detention centre because of his medical condition. However, the applicant was admitted to the remand centre soon afterwards. 16. According to the applicant, in the remand centre he was kept in solitary confinement. Due to his state of health after the alleged torture, he was unable to walk or use the toilet.", "He was not provided with any medical assistance. He also alleged that numerous injuries had been recorded in the register of the remand centre, including fractures of the right arm and right leg. 17. The applicant’s medical file in the remand centre indicates that on 11 May 2006 he complained of pain in the chest, arms, legs and head; he had bruises on his body, showed sensitive palpation in his cheekbone and hips; had bruises and scratches on his hips; severe pain in the chest, especially in the area of the costal margins; and soft tissue and bone bruising. It does not appear from the record that the applicant was given any medication.", "In the applicant’s submission, on several occasions the investigator prevented emergency paramedics from providing the applicant with medical assistance and refused to allow him to be transferred to a hospital. 2. Complaints of torture lodged by the applicant and Mr I. 18. In the meantime, on 9 May 2006 Mr I. was arrested in connection with the kidnapping case and was interviewed by investigator A.", "After this interview, Mr I.’s relatives complained that he had been ill-treated. On 18 May 2006 the Prosecutor’s Office of the Dagestan Republic (“the regional prosecutor’s office”) instituted criminal proceedings (file no. 668130) on charges of insult and abuse of power. 19. According to the applicant, he also complained to the regional prosecutor’s office, the regional ombudsman and the regional office of the Federal Security Service that he had been tortured.", "He did not specify the details of the sexual assault he complained of, while naming among his assailants chief officer Z. and investigator A., and asking the authorities to carry out an investigation. He asked them to examine photographs which had allegedly been taken during the ill-treatment (see also paragraph 25 below). 20. Unlike Mr I., the applicant was not granted victim status in case no. 668130.", "However, on 19 May 2006 the applicant, who was not assisted by counsel, was interviewed as a witness and made the following written statement concerning the events between 23 April and 11 May 2006: “I was taken out of my car by force and brought to the Khasavyurt OCU. I was taken up to a room on the second floor and beaten up there. Four officers punched and kicked me. I was then taken to the OCU Chief officer’s office, where I was forced to put on a gas mask; I lost consciousness on several occasions. Later on, I was taken to another room for questioning.", "After this, I remained handcuffed to a radiator until the next morning, when I was questioned by investigator A. Another man, K., who was apparently the son of the kidnap victim, was also present. Mr A. put a gas mask on my head and blocked the air flow; I lost consciousness on several occasions while being beaten up by K.... the next day I was beaten up by OCU officers, who used their hands, feet and a plastic bottle...I can identify at least one of the officers...Later, I was again beaten up by two OCU officers who had just arrived from Makhachkala...During the night of 8 to 9 May 2006 I was beaten up again. I also heard another person, Mr Ib., being tortured in another office...Mr A. told me to sign some documents but I refused. I was taken into the room where Mr Ib.", "was. There, I was told to kneel; A. hit me on the back and told Ib. to have sexual intercourse with me. Ib. was told to take off my and his trousers and to approach me from behind and bend over me.", "I resisted and received a blow to the head from a bottle. K. took photographs...” 21. On 19 May 2006 the investigator dealing with case no. 668130 ordered that the applicant be examined by medical experts of the regional Forensic Expert Office (see below). 22.", "On 23 May 2006, for unspecified reasons, the regional prosecutor’s office reassigned K.’s kidnapping case from investigator A. to an investigator in the Investigations Department of the regional prosecutor’s office under case no. 668493. 23. On 25 May 2006 senior officer Z. was interviewed by an investigator of the regional prosecutor’s office and denied torturing Mr I. 24.", "As can be seen from a report dated 30 May 2006, the applicant had been examined by a medical expert in the Forensic Expert Office on 22 May 2006, when he had complained of pain in the chest and hip. The expert identified two bruises measuring 8 x 6 cm and 5 x 4 cm on the left side of the applicant’s chest. According to the applicant, no check-up had been carried out on 22 May 2006 and the report was false. 25. An expert report was commissioned on the photographs submitted in I.’s torture case.", "The following descriptions were given in the report, no. 4161 dated 8 June 2006. Photograph no. 1 depicted a man lying on the floor, with his arms held behind him by another person. Photograph no.", "2 depicted a man lying on the floor with another person’s genitals near his face. Photograph no. 3 depicted a man lying on the floor with his arms handcuffed behind him, his buttocks half exposed and a stick near his anus. Photograph no. 4 depicted two men: one man lying on the floor with his pants slightly down so that his genitals are partly visible, and the other man bending over him.", "The report describes the photographs as reproductions/computer screen captures, photos 2 and 4 showing “indications of editing”. The expert was not able to determine whether the photographs had been taken in the police station or the OCU. Another report, issued by another expert institution on 14 October 2006, concluded that the photographs had not been edited. 26. On 9 June 2006 the Internal Control Office of the Ministry of the Interior carried out an inquiry in reply to a request from a Member of Parliament.", "The inquiry concluded that senior officer Z. and two officers had been interviewed and had denied torturing Mr I. 27. According to the Government, senior officer Z. and officer D., who had arrested the applicant on 23 April 2006, could not be interviewed during the inquiry because they had been killed on 20 June and 23 July 2006 respectively. 28. In July 2006 the applicant wrote to the regional prosecutor’s office about ill-treatment.", "Receiving no reply, on 21 November 2006 he submitted another complaint. 29. On 22 November 2006 the torture case (concerning Mr I.) was reassigned from the regional prosecutor’s office to the town prosecutor’s office. The criminal investigation was suspended on 18 December 2006 for lack of a suspect.", "However, on 22 December 2006 the regional prosecutor’s office instructed the district prosecutor to continue the inquiry. 30. By a letter of 22 December 2006, the regional prosecutor’s office notified the applicant that his complaint against investigator A. and unlawful methods of investigation had been forwarded for examination by the Khasavyurt prosecutor’s office. 31. On 30 December 2006 the Khasavyurt prosecutor’s office suspended the inquiry in I.’s case because no suspect had been identified.", "According to the applicant, he first learnt about this decision at the trial (see below). 32. Having received no information about the investigation into his allegations of ill-treatment, the applicant complained to the Prosecutor General’s Office. On 10 January 2007 the latter forwarded this complaint for examination by the Khasavyurt prosecutor’s office. 33.", "On 14 September 2007 the applicant complained to the regional prosecutor’s office that there had been no meaningful investigation of torture, that the authorities had failed to examine his earlier complaints, the presumption of innocence had been violated and the jurors had been influenced by the mass media (see paragraph 40 below). On 24 September 2007 the regional prosecutor’s office forwarded this complaint to the Khasavyurt prosecutor’s office. It appears that no reply was received. 34. However, by a letter of 10 July 2008 the Khasavyurt prosecutor’s office notified the applicant that his complaints of ill-treatment were unfounded and that they had already been examined at the trial and on appeal against the jury verdict.", "The applicant received this letter on 1 October 2008. 35. No proceedings were pending until 7 December 2009, when the Khasavyurt town prosecutor issued an order to resume the preliminary investigation in Mr I.’s torture case, and to investigate the applicant’s allegations made before the European Court. 36. As it appeared that no investigative measures had been taken, the applicant complained to the Prosecutor General’s Office.", "He submitted a handwritten copy of their letter dated 23 June 2010, which reads as follows: “Indeed, during the stage of preliminary investigation [the applicant] and another convict in the same criminal case were subjected to violence at the hands of police officers and relatives of the crime victim. This fact gave rise to criminal proceedings initiated on 18 May 2006. The relevant case file was examined by the trial court in the [applicant’s] criminal case. This notwithstanding, [the applicant] and I. stated at their trial that violence applied to them had not resulted in false testimony or admissions.” 37. On 11 August 2010 Mr A., acting head of the Khasavyurt inter-district investigations unit of the Investigations Department of the regional prosecutor’s office (the investigator A. mentioned above), considered that the Khasavyurt prosecutor’s request was justified, in part because no face-to-face confrontation had been carried out between the applicant and Ib.", "; the medical doctor who had provided emergency assistance to the applicant in the OCU, had not been interviewed; and officers of the temporary detention centre had not been interviewed in relation to injuries mentioned in the forensic expert report. In view of the above, Mr A. quashed the decision of 18 December 2006 (see paragraph 29 above) and ordered an investigator in the Khasavyurt inter-district investigations unit to resume the preliminary investigation. According to the applicant, the newly-designated official was subordinate in rank to Mr A., who had been implicated in the allegations of torture made by the applicant and his co-accused. 38. On 11 September 2010 the preliminary investigation was suspended for unspecified reasons.", "On 8 October 2010 it was resumed but then again suspended on 8 November 2010. By a letter of 14 December 2010 the Prosecutor General’s Office informed the applicant that his allegations had been previously examined in I.’s torture case and that further inquiries should be addressed to the Khasavyurt prosecutor’s office, also noting that the applicant’s application was pending before the European Court. B. Criminal proceedings against the applicant 39. On 25 April 2006 the Khasavyurt Town Court of the Dagestan Republic remanded the applicant in custody as a suspect in the kidnapping case.", "Separate preliminary investigations concerning kidnapping, extortion, murder and unlawful handling of firearms were joined in one case. In May 2006 the applicant was charged with kidnapping (Article 126 of the Criminal Code). 40. After the arrest of the applicant and his accomplices their case received some press coverage. The applicant submitted an article entitled “Who was the contract murder client?”, which had been published in a regional newspaper, Dagestan Argumenty i Facty, on 24 May 2006.", "Another article in similar terms was published at the same period of time in Dagestanskaya Pravda, another local newspaper. These publications relied on statements allegedly made by a public official. The applicant was treated in these publications as a “bandit” and a “recidivist” convicted of murders and kidnapping. 41. The applicant and his counsel studied the materials of the criminal case (twelve volumes), allegedly, for two hours on 23 December 2006.", "On 27 or 28 December 2006 the applicant had a heart attack. On 6 January 2007 he was provided with a copy of the bill of indictment. 42. Thereafter, the criminal case against the applicant and his accomplices, including Mr I. and Mr Ib., was listed for trial before the Supreme Court of the Dagestan Republic. The applicant requested to be tried by a lay jury.", "On 12 January 2007 the presiding judge held a preliminary hearing, extended the defendants’ detention and granted the applicant’s request for a trial by a lay jury. A jury panel was formed. Apparently, at the time the applicant was not aware of the publications in the press (see paragraph 40 above). 43. The transcript of the hearing indicates that the presiding judge made a general direction requesting the jury not to follow any media coverage of the trial; if they had already seen any press coverage of the case they were instructed not to take account of the conclusions drawn by the mass media.", "44. The trial judge admonished the public prosecutor for mentioning the applicant’s criminal record. The judge instructed the jury not to take that information into account. The applicant was also admonished for subsequently mentioning his own criminal record. 45.", "In the course of the trial the applicant admitted that that he had unlawfully deprived the victim of his liberty, but pleaded not guilty to the remaining charges. 46. The presiding judge ordered the prosecution to submit the criminal investigation file in relation to I.’s allegation of torture. Instead, the prosecution read out a procedural summary note concerning this file. The applicant stated that he had been subjected to similar humiliating ill-treatment, which had been photographed.", "The presiding judge also admitted to the file a letter from the remand centre, apparently containing information concerning the applicant’s injuries. The judge granted the defence’s request and ordered a medical expert examination of the applicant, to investigate his allegation that fractures had been inflicted on him by torture. According to the applicant, a report compiled by the expert indicated that the applicant had sustained arm and leg fractures. No copy of this report was submitted to the Court. 47.", "The applicant made a written statement accusing investigator A. of torture. The presiding judge accepted the statement, and ordered it to be forwarded to the appropriate authority after the trial. In reply to the judge’s questions, the applicant stated on several occasions that despite torture he had not made any “false” admissions during the preliminary investigation. 48. The court examined four photographs.", "The applicant affirmed that he was shown in one of them, depicting two men. His co-accused Mr Ib. (the other man in this photo) confirmed it. Ib. also affirmed that A. had made him watch video recordings showing the applicant and I. being ill-treated.", "49. During the hearing on 5 June 2007 the applicant was removed from the courtroom because of repeated misbehaviour. He was then brought back after counsel’s concluding remarks and was allowed to conclude his pleading. 50. On 21 June 2007 the jury found the applicant guilty as charged and sentenced him to twenty-five years’ imprisonment.", "51. It appears that the car, which the applicant had used with the permission of its owner, was seized during the investigation. At the closure of the trial, the car was handed over to the victims in settlement of their civil claims. It appears that the owner of the car then sought compensation from the applicant and his next of kin. The latter paid the owner a sum equal to the value of the car.", "52. The applicant appealed against the verdict, seeking a retrial in another region of Russia because, he submitted, it was impossible to ensure a fair trial in Dagestan, particularly on account of the press coverage of the first trial. 53. On 15 May 2008 the Supreme Court of Russia upheld the verdict of 21 June 2007. According to the applicant, the appeal hearing, which was carried out by video link, took no more than fifteen minutes.", "54. On 6 June 2008 the Supreme Court dismissed the applicant’s request for supervisory review. The Supreme Court considered that it was not shown that the jury had been aware of the publications in 2006 and that it was not established that they had been unduly influenced by these publications. The Supreme Court also considered that these publications were not capable of prejudicing the impartiality of the jury. C. Conditions of detention and transport 55.", "A medical certificate issued in 2003 indicates that the applicant has a Category 2 disability and was recognised as unfit for work (without any period of limitation). He also has ischaemic heart disease, hemiplegia (paralysis of part of the body) and some other conditions. 56. From 25 April to 9 or 11 May 2006 the applicant was kept in a police station or a temporary detention centre. From 9 or 11 May to 8 December 2006 he was detained in Khasavyurt remand centre no.", "3. From 8 December 2006 to an unspecified date in March 2008 he was detained in Makhachkala remand centre no. 1, allegedly in overcrowded cells. From March to 5 June 2008 the applicant was detained in Moscow remand centre no. 77/3.", "57. On 5 June 2008 the applicant was sent back to Makhachkala remand centre no. 1. On his way back he was temporarily admitted to the medical unit of a Volgograd remand centre. In Astrakhan colony no.", "6 he was, however, placed in an ordinary transit cell, which was, allegedly, overcrowded. It appears that the applicant’s complaint to the administration of the colony was not examined. Thereafter, the applicant was transported for twelve hours in a “container” measuring 1.7 m x 2 m, together with many other detainees. Upon his arrival in Makhachkala remand centre no. 1 he was sent to a colony in the Kirov Region, while his medical file containing the recommendations for his treatment was, allegedly, replaced by a blank one.", "58. On an unspecified date, the applicant was transferred to colony no. 6 in the Kirov Region. He was admitted to a hospital on several occasions in 2008 and 2009 and prescribed various types of medication. D. Correspondence with the European Court 59.", "By a letter of 14 October 2008, the European Court acknowledged receipt of the applicant’s first letter to the Court. By a letter of 19 August 2009 the Court informed the applicant that his recent request under Rule 39 of the Rules of Court had been rejected. According to the applicant, the above letters were opened and inspected before being handed over to him in unsealed envelopes. 60. Allegedly, in March 2009 the colony administration refused the applicant access to his medical file and refused to issue any documents relating to this file in the absence of an official request from a national public authority or the European Court of Human Rights.", "61. On 10 March 2009 the applicant handed over the completed application form to be dispatched from the detention facility to the Registry of the Court. The application form was received by the Registry of the Court on 15 May 2009. Allegedly, in 2010 the detention facility staff refused to dispatch one letter to the Court. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Use of force against detainees and investigation of complaints 62. Under the Custody Act (Federal Law no. 103-FZ of 15 July 1995), physical force may be used against a suspect or an accused in a detention facility in order to put an end to an offence or his resistance to lawful orders issued by public officials, if other means prove to be inefficient (section 44 of the Act). Rubber truncheons may be used to stop a detainee assaulting a public official, to put an end to mass disorder or breaches of prison rules committed in a group, to put an end to unlawful actions on the part of the detainee if he resists a lawful order, or to prevent him from causing damage to others (section 45).", "Handcuffs may be used to put an end to unlawful actions on the part of the detainee if he resists a lawful order, or to prevent him from causing damage to himself or others (ibid). 63. The Federal Ministry of Justice’s decree no. 189 of 14 October 2005 provides that during admission to a remand centre a detainee should be examined by a duty medical doctor or a medical assistant, with the purpose of identifying health problems requiring isolation from other detainees or urgent medical care. If there is reason to believe that injuries identified on the detainee’s body could have been caused by unlawful actions, the medical staff should indicate this in the medical record and compile a separate note.", "An inquiry should be carried out by a special unit. If there are indications of a criminal offence the inquiry file should be submitted to a prosecutor (section 16 of the Decree). B. Code of Criminal Procedure (CCrP) 64. Article 125 of the CCrP provides for judicial review of a decision or (in)action on the part of an inquirer, investigator or prosecutor, which has affected constitutional rights or freedoms.", "The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint. 65. In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia considered that it was incumbent on the judges to verify before processing an Article 125 complaint whether the preliminary investigation has been completed in the main case (point 9). If the main case has already been set for trial or has been completed, the complaint should not be examined unless it was brought by a person who was not a party to the main case or if the complaint was not amenable to judicial review under Article 125 at the pre-trial stage of the proceedings. In all other situations, the complaint under Article 125 should be left without examination and the complainant be informed that he or she can raise the matter before the trial or/and appeal courts in the main case.", "66. In the same vein, according to the interpretation given by the Constitutional Court, a complaint under Article 125 cannot be brought or pursued after the criminal case to which the complaint is connected has been submitted for trial. However, when it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously affecting the fairness of the proceedings, the Code exceptionally allows for a separate investigation of the relevant circumstances leading to a reopening of the case (see Decision no. 412-O-O of 17 November 2009; see also Ruling no. 13-П of 29 April 1998 and Ruling no.", "5-П of 23 March 1999 concerning respectively Articles 113 and 218 of the RSFSR Code of Criminal Procedure before 1 July 2002). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 67. The applicant complained that he had been subjected to torture in detention and that no meaningful investigation had been carried out, in breach of Articles 3 and 13 the Convention. The Court will examine this complaint under Article 3 of the Convention.", "It reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 68. The applicant argued that between 23 April and 9 May 2006 he had been continually and severely beaten up by officers of the Organised Crime Unit, had been sexually assaulted and humiliated, and had not been provided with any medical assistance. 69. The Government argued that the investigation into the allegation of torture was effective, since the national authorities had taken all practicable investigative measures, given the death of the arresting officers and the destruction of the relevant logbooks of the temporary detention facility. As the investigation was not yet complete, the applicant’s grievance was premature.", "A. Admissibility 70. The Court considers that the examination of the Government’s argument concerning exhaustion of domestic remedies is closely linked to the merits of the applicant’s grievances concerning the procedural aspect of Article 3 of the Convention. Thus, the Court considers that the issue of exhaustion of domestic remedies should be joined to the merits. 71. The Court also notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged ill-treatment (a) General principles 72.", "The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among others, Ireland v. the United Kingdom, judgment of 18 January 1978, § 162, Series A no. 25). 73. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”.", "However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Zelilof v. Greece, no. 17060/03, § 44, 24 May 2007, and Polyakov v. Russia, no. 77018/01, §§ 25 and 26, 29 January 2009).", "74. The Court reiterates that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006).", "Where arguable allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny. (b) Application of the principles in the present case 75. The applicant provided a detailed account of physical ill-treatment at the hands of, with the connivance of, or instigated by, agents of the State after his arrest and during his detention between 23 April and 9 May 2006 (see paragraphs 6, 11 and 20 above). In particular, according to the applicant, he was beaten up on numerous occasions; he was forced to stand in a position of doing the splits, while his arms remained handcuffed behind his back. He was sexually assaulted and was forced to sit on a bottle, which provoked acute bleeding from the anus.", "The applicant was beaten on the kidneys and head with a plastic bottle filled with water; he was hit on the legs with a shovel handle. Allegedly, he sustained fractures of his right arm and one of his legs. 76. While for unspecified reasons the applicant failed to submit before the Court any documentary evidence concerning his allegation of fractures inflicted by ill-treatment (see paragraph 46 above), it was recorded in the remand centre that on 11 May 2006 he had complained of pain in the chest, arms, legs and head; he had bruises on his body, showed sensitive palpation in the area of his cheekbone and hips; had bruises and scratches on his hips; severe pain in the chest, especially in the costal margin area; and had soft tissue and bone bruising (see paragraph 17 above). 77.", "It is also noted, and is not in dispute between the parties, that the applicant was arrested on 23 April 2006 in “good health”. The Court also observes that there is no indication that the applicant self-mutilated or resisted arrest, which might have accounted for injuries. The applicant’s description of the alleged ill-treatment is sufficiently detailed, and there is a clear match between this description of the beatings and the injuries identified. Moreover, as followed from a document submitted by the applicant and uncontested by the Government, the Prosecutor General’s Office had acknowledged that violence had been used against the applicant (see paragraph 36 above). 78.", "It follows from the Government’s submissions that on the day of his arrest the applicant was examined by a medical assistant, who did not detect any visible injuries (see paragraph 10 above). Should this finding be accepted as true and supported by appropriate evidence, it remains unexplained why the applicant had injuries during his admission to the remand centre on 11 May 2006. Moreover, it is noted that emergency services were called to examine the applicant when he complained of stomach and kidney pains on 30 April and 9 and 10 May 2006 (see paragraph 13 above). In view of the above considerations, it is plausible that the injuries were inflicted during the applicant’s detention. 79.", "The Court also considers that the medical evidence, together with the fact that the alleged ill-treatment took place while the applicant was within the authorities’ control in custody, created a presumption of fact that the applicant was subjected to ill-treatment at the hands of State agents and required the national authorities to provide a satisfactory and convincing explanation as to how those injuries could have originated. 80. The Court observes in that connection that the applicant’s grievance was not properly assessed by any domestic courts, which could have examined the available evidence. In fact, the national authorities did not provide any plausible explanation for the applicant’s injuries. 81.", "Thus, the Court accepts the applicant’s submission that he was physically ill-treated by State agents. At the same time, the Court does not find it necessary to assess whether the allegations of sexual assault are true owing to the difficulty of proving them in the absence of appropriate medical evidence (see, mutatis mutandis, Yavuz v. Turkey, no. 67137/01, § 39, 10 January 2006). 82. In these circumstances and having assessed the available material, including the available medical evidence, the Court considers it established that between 23 April and 9 May 2006 the applicant was subjected to physical ill-treatment and humiliation, which amounted to inhuman and degrading treatment.", "83. There has therefore been a violation of Article 3 of the Convention. 2. Alleged lack of an effective investigation (a) General principles 84. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by agents of the State in breach of Article 3 there should be a thorough and effective investigation (see, among others, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Gäfgen v. Germany [GC], no.", "22978/05, § 117, 1 June 2010). 85. While not every investigation should necessarily come to a conclusion which coincides with the claimant’s account of events, any investigation should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).", "86. The investigation into credible allegations of ill-treatment must be thorough. This means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no.", "22676/93, § 89, 14 December 2000). Also, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time, consideration being given to the date of commencement of investigations, delays in taking statements and the length of time taken to complete the investigation (see Labita v. Italy [GC], no. 26772/95, § 133 et seq., ECHR 2000‑IV, and Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard.", "(b) Application of the principles in the present case 87. Turning to the present case, the Court first observes, and it is common ground between the parties, that the applicant’s injuries and his allegations were sufficiently serious and credible to require an investigation on the part of the national authorities. 88. The Court also observes that it is unclear when the applicant first informed the national authorities of the ill-treatment allegedly inflicted on him between 23 April and 9 May 2006. A person alleging ill-treatment should not act in a way which prejudices any future investigation.", "However, in the circumstances of the case the Court is not prepared to draw adverse inferences from this delay (see, for comparison, Shanin v. Russia, no. 24460/04, §§ 64-68, 27 January 2011, and Andreyevskiy v. Russia, no. 1750/03, § 55, 29 January 2009). The Court notes with concern that on 11 May 2006, having recorded certain injuries on the applicant’s body, the staff of the remand centre omitted to initiate, without delay, a proper medical examination of the applicant (see paragraph 17 above) or an inquiry, as required by national law (see paragraph 63 above). 89.", "Moreover, despite an unequivocal and detailed allegation of ill-treatment made by the applicant during an interview on 19 May 2006, no formal inquiry was opened. Instead, after being interviewed as a witness in relation to his co-accused’s allegations of torture, the applicant was not given a different procedural status which could have enabled him to participate effectively in an inquiry (see paragraph 20 above). The Court considers that the applicant’s right to participate effectively in the investigation was not secured. 90. In fact, it transpires from the available material that the majority of the measures taken at the domestic level did not directly relate to the examination of the applicant’s complaint, which was connected to the co-accused’s complaint but distinct from it in various respects.", "In this context, the Court does not attach any particular weight to the expert report dated 30 May 2006 (see paragraph 24 above). Even assuming that the applicant had been taken for examination to an expert institution on 22 May 2006, the findings concerning the presence of two bruises on the applicant’s body were not assessed by the domestic authorities. Nor was the expert interviewed at any stage of the proceedings to dispel any doubts about the examination procedure. 91. The Court reiterates in this connection that proper medical examinations are an essential safeguard against ill-treatment (see Akkoç v. Turkey, nos.", "22947/93 and 22948/93, §§ 55 and 118, ECHR 2000-X). When a medical doctor writes a report after examining a person who has alleged ill-treatment, it is important that the doctor states the degree of consistency with the story of ill-treatment. A conclusion indicating the degree of support for the alleged description of ill-treatment should be based on a discussion of different possible diagnoses (injuries not relating to ill-treatment, including self-inflicted injuries and diseases) (see Barabanshchikov v. Russia, no. 36220/02, § 59, 8 January 2009). 92.", "In any event, bearing in mind the medical record of 11 May 2006 and the report of 30 May 2006, it was incumbent on the national authorities to respond to the applicant’s claim, which was clearly credible, without undue delay and to provide a plausible explanation for the applicant’s injuries. In that context, the Government’s argument before this Court concerning the destruction of logbooks in 2009 is not convincing. 93. The Court also observes that no attempts to interview officers Z. and D. were made after the authorities became aware of the alleged ill-treatment. Nor were any OCU officers, police officers or staff of the temporary detention centre or remand centre, or medical personnel including emergency paramedics interviewed in connection with the applicant’s allegations.", "No adequate assessment was made in relation to his allegations of sexual assault. No clear attempt was made to identify whether the applicant appeared in any of the photographs at all. 94. Furthermore, the Court reiterates its finding made on a number of occasions that the “investigation” in terms of Article 2 or 3 of the Convention should be carried out by competent, qualified and impartial experts who are independent of the suspected perpetrators and the agency they serve (see Oğur v. Turkey [GC], no. 21594/93, §§ 91 and 92, ECHR 1999-III, and Ramsahai and Others v. the Netherlands [GC], no.", "52391/99, § 325, ECHR 2007‑II). In the Court’s view, it is highly questionable whether any investigation by the Khasavyurt prosecutor’s office could be independent and impartial. In fact, the respondent Government did not deny the hierarchical, institutional or organisational interdependence between officials allegedly implicated in the ill-treatment (in particular, OCU officers and investigator A.) and the authorities who had the task of dealing with the applicant’s complaints, in particular the Khasavyurt prosecutor’s office (see paragraph 37 above). 95.", "Lastly, even accepting that the domestic proceedings concerning the allegation of torture raised by the applicant’s co-accused Mr I. could be taken into consideration as regards the Government’s argument concerning exhaustion of domestic remedies, the Court cannot but observe that these proceedings were closed and reopened several times between 2006 and 2010. These proceedings are still pending at the stage of a preliminary investigation. In the absence of any indication to the contrary and taking into account the findings made in the preceding paragraphs, the Court finds that the Government had sufficient time at their disposal to address the applicant’s own grievances by means of the domestic investigation (see Maslova and Nalbandov v. Russia, no. 839/02, § 83, 24 January 2008). In view of the above, the Court finds that the applicant has complied with the requirement to exhaust domestic remedies, and rejects the Government’s objection.", "96. In view of the foregoing, the Court concludes that there was no effective investigation into the applicant’s allegation of ill-treatment, in breach of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 97. The applicant complained of a violation of the presumption of innocence due to adverse statements allegedly made by a public official in local newspapers.", "Article 6 § 2 of the Convention reads as follows: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 98. The Government submitted that the impugned statements had been made in 2006. The applicant had been convicted in July 2007, whereas the present complaint had been lodged in September 2008. The Government concluded that the applicant had not complied with the six-month time-limit under Article 35 § 1 of the Convention.", "In any event, he had not raised the matter in any separate proceedings. As to the substance of the complaint, the Government argued that the articles did not contain any verifiable information concerning the official source of affirmations contained therein. In any event, the applicant had not made any allegations to the effect that the publications in question had affected the trial court in his criminal case. 99. The applicant submitted that he had first learnt about the publications in the newspapers only after the formation of the jury for his trial.", "As soon as he had become aware of them, he complained to the trial judge, but received no reply; his request for the withdrawal of the trial judge had also been dismissed. He argued that his related complaints in the course of the trial and on appeal against conviction, as well as on supervisory review and on his separate complaints before various authorities, had been dismissed with reference to the absence of evidence that the jurors had effectively read the publications. In the applicant’s view it was incumbent on the authorities, including the trial judge or the public prosecutor, to dispel doubts as to whether the jurors had become aware of the statements made by a public official in those publications and with extensive coverage on television, which had both offended the presumption of innocence and his honour and dignity. The applicant referred in that connection to the part of the publications treating him as a “bandit”, a “recidivist” convicted of murders and kidnapping. 100.", "The Court has first to determine whether applicant has complied with the admissibility criteria. The Court observes at the outset that the applicant first wrote to the Court on 10 September 2008, raising complaints of torture, lack of an investigation and effective remedies at the domestic level. He also referred in general terms to the criminal proceedings against him and Article 6 of the Convention. In his application form of 10 March 2009 he raised specific grievances concerning the fairness of these proceedings, as well as a complaint about a breach of the presumption of innocence on account of public statements made by a public official after the applicant’s arrest. A general reference to the trial and Article 6 of the Convention in the first letter does not suffice in the circumstances of the case for taking 10 September 2008 as the introduction date (see, in a similar context, Pavlenko v. Russia, no.", "42371/02, § 94, 1 April 2010, and Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). In view of the above, the Court considers that the complaint concerning the presumption of innocence was first raised in substance before it on 10 March 2009. 101. Even assuming, in the applicant’s favour, that the appeal judgment of 15 May 2008 in the applicant’s criminal case could have been taken as the relevant final domestic decision in the chain of domestic remedies to be exhausted before lodging an application before this Court, the Court cannot but note that the matter was raised before it nearly ten months after this court decision, that is still outside the six-month time-limit in breach of Article 35 § 1 of the Convention.", "It has not been argued, and the Court does not consider, that the applicant was not immediately aware of the contents of the appeal judgment or could not obtain a copy in due time before bringing a complaint before this Court. 102. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 103.", "The applicant also complained about the arrest and ill-treatment of his next of kin; conditions of detention; various detention proceedings and raised a number of complaint in relation to the trial. Furthermore, he alleged that letters from the Court had been opened and that the detention facility authorities had delayed the dispatch of his application form. Lastly, the applicant complained that law-enforcement officers had misappropriated a sum of money and that his next of kin had had to pay a sum equal to the value of the car seized by the authorities. The applicant referred to Articles 3, 5, 6 and 34 of the Convention, as well as Article 1 of Protocol No. 1.", "104. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 106. The applicant claimed 18,000 euros (EUR) in respect of pecuniary damage and EUR 10,000,000 in respect of non-pecuniary damage. 107.", "The Government contested these claims. 108. 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 notes that it has found a violation under the substantive and the procedural heads of Article 3 of the Convention on account of the applicant’s ill-treatment and the authorities’ failure to carry out an effective investigation into the matter. In these circumstances, the Court considers that the pain, humiliation and frustration caused to the applicant cannot be compensated for by the mere finding of a violation.", "Having regard to the nature of the violation and making its assessment on an equitable basis, the Court awards the applicant EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 109. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts. 110.", "The Government contested this claim. 111. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings. C. Default interest 112.", "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 argument concerning exhaustion of domestic remedies in relation to the alleged ill-treatment from 23 April to 9 May 2006 and rejects it; 2. Declares the complaint concerning the alleged ill-treatment from 23 April to 9 May 2006 and the alleged lack of an effective investigation into it admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention under its substantive aspect; 4.", "Holds that there has been a violation of Article 3 of the Convention under its procedural aspect; 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, EUR 25,000 (twenty-five 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]
[ "FIFTH SECTION CASE OF MOESGAARD PETERSEN v. DENMARK (Application no. 32848/06) JUDGMENT STRASBOURG 11 December 2008 FINAL 11/03/2009 This judgment may be subject to editorial revision. In the case of Moesgaard Petersen v. Denmark, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Peer Lorenzen,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 October 2007 and on 18 November 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 32848/06) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Torben Moesgaard Petersen (“the applicant”), on 1 August 2006.", "2. The applicant was represented by Ms Sysette Vinding Kruse, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice. 3. By a decision of 9 October 2007 the Court declared the application admissible.", "4. The applicant and the Government each filed observations on the merits (Rule 59 § 1). 5. The applicant submitted his claims for just satisfaction and the Government made their comments on that matter. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1958 and lives in Charlottenlund. 7. At the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravated debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period and, for the sake of their own profit, “stripping” the companies of assets, including deposits earmarked for payment of corporation tax. The persons involved were usually intricately interconnected and collaborated in their economic criminal activities, which concerned very large amounts of money.", "According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding two billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993. 8. At the relevant time the applicant was part owner of a private limited stockbrokers company ([B] & [the applicant] A/S] - hereafter “the company”). 9.", "On 18 January 1994 he learnt that the tax authorities were about to check the company’s accounts for the years 1989 to 1992. On 6 May 1994 the tax authorities informed the applicant that the question of whether any criminal liability had occurred would be decided on later. The tax authorities also reported various potential co-offenders to the police. 10. During 1994, 1995 and at the beginning of 1996 the police carried out an investigation comprising, among other things, discovery orders against banks, international letters of request, search warrants and numerous interviews of witnesses.", "11. On 17 June 1996, the Copenhagen City Court (Københavns Byret – hereafter “the City Court”), sitting in camera, granted the police a warrant to search the premises of the applicant’s business and those of the company. 12. On 2 July 1996 the search was carried out by the police. 13.", "From July 1996 to February 1998 various investigative steps were taken, also relating to five co-accused in the case, for example searches in Denmark, Switzerland and Sweden, numerous interviews in Denmark and abroad, international letters of request, a request to Interpol, fifteen discovery orders and an order prohibiting the disclosure of the applicant’s name. Moreover, on 19 March 1997 a request for an accountant’s report was made and material for that purpose was obtained, including statements of account, cheque vouchers and so on. 14. On 12 February 1998 the applicant was officially charged and interrogated by the police. 15.", "On 25 June 1998 an indictment was submitted to the City Court, according to which the applicant (and five co-accused, A, B, H, N and R) were charged with “tax asset stripping” committed jointly. The applicant was charged on forty-four counts out of a total of fifty-nine, committed between 26 June and 3 November 1992. His responsibility related to an amount of DKK 87,000,000, equal to approximately 11,600,000 euros (EUR) out of the total tax amount evaded in the case which came to approximately EUR 19,000,000. The indictment related to eighty different companies and six banks in Denmark and abroad. 16.", "Between July 1998 and 10 March 1999, fifteen pre-trial hearings were held and the draft of the accountant’s reports was submitted. On the former date, the case was set down for trial on 15 March 1999. 17. Between 15 March 1999 and 31 January 2001, a total of 119 hearings were held. The applicant, the five co-accused and more than seventy witnesses were heard, including state-registered public accountants.", "Statements of accounts and a considerable amount of other documentary evidence were also produced. The court records comprised 1,330 pages. The closing speeches were held over ten days in November 2000 and January 2001. 18. By a judgment of 6 April 2001, which ran to 220 pages, the City Court convicted the applicant in accordance with the indictment.", "The co-accused were also convicted. The applicant was sentenced to three years’ imprisonment. In addition, the sum of DKK 3,600,000 was seized, and he was deprived for an indefinite period of the right to establish a private limited company or a company or an association requiring public approval, or to become a manager and/or member of a director’s board of such companies. 19. The City Court dismissed the applicant’s claim that the length of the proceedings had been at variance with Article 6 of the Convention stating the following: “The City Court finds no reason to criticise the prosecution’s decision to join the criminal proceedings against the [applicant and the five co‑accused].", "Accordingly, and having regard to the mutual connection between the cases and their character, the City Court finds no violation of Article 6 of the Convention, although there were longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. In this connection [the City Court] notes that the complexity of the acts carried out by [the applicant and the five co-accused] partly when buying and “stripping” the companies for assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. In the City Court’s opinion there were no longer periods, whether before the police, the prosecution or the City Court, during which no part of the case proceeded. It must be emphasised that due to the nature and scope of the charges, the cases against [the applicant] and [the co-accused B and R] could not proceed before the cases against [H, N and A] [had been heard]. [Finally], in view of the character and complexity of the case, [the City Court] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the Convention.” 20.", "On 15 May 2001 the applicant and the five co-accused appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret - “the High Court”). 21. After that date, twelve preparatory hearings were held, including one on 13 September 2001 during which the trial was scheduled with numerous fixed dates to commence on 24 September 2002. Counsel for the applicant and the co-defendants jointly replied that they only had very limited possibilities to appear during the autumn of 2002. 22.", "Thus, although the trial commenced on 24 September 2002, most of the hearings took place in 2003 and 2004. A total of about 90 hearings were held in the case. In February and March 2004 the appeal hearings had to be postponed because a co-defendant fell ill. For the same reason the High Court changed the order of some of the hearings. The Court records comprised 861 pages. The closing speeches were held over ten days in April, May, and June 2004.", "23. On 28 September 2004 the High Court upheld the City Court’s judgment. As regards the length of the proceedings, it stated: “In the assessment of whether the proceedings have been concluded within a reasonable time, the starting point ... concerning the [applicant] was on 12 February 1998, when he was charged ... [The High Court] upholds the City Court’s judgment and its reasoning with regard to the question of whether Article 6 of the Convention has been violated ... The appeal proceedings were scheduled and carried out without any unreasonable delay. On 13 September 2001 the trial was scheduled to take place on fixed dates as from 12 August 2002.", "A number of hearing dates in the autumn 2002 and the beginning of 2003 had to be cancelled because some counsel were occupied [with other cases], for which reason the [present] case was delayed. To avoid any further delay caused by impossibilities to appear, the trial, which commenced on 24 September 2002, proceeded in a proper, but not completely suitable order.” 24. In the period from 7 to 12 October 2004, the applicant and the co‑defendants requested that the Leave to Appeal Board (Procesbevillingsnævnet) grant them leave to appeal to the Supreme Court (Højesteret). Three of the defendants stated in their petitions that they would submit supplementary comments, which were received on 17 December 2004. In January 2005 the cases were sent to the prosecution, which gave its opinion on 29 March 2005.", "The applicant and the co‑defendants gave their comments in reply and at a meeting on 5 August 2005 the Leave to Appeal Board decided to refuse the requests. Letters of refusal were not sent out, however, as on 9 August 2005 counsel for one of the co-defendants stated that he wanted to submit supplementary comments in the light of a recent judgment in a similar case. 25. Thereafter, due to an error, nothing happened in the case until 2 May 2006, when the police telephoned the Leave to Appeal Board and drew attention to the case. Subsequently, on his request, counsel for the relevant co-defendant who had wanted to submit supplementary comments did so on 2 and 13 June 2006.", "The applicant and the co-defendant were informed on 21 June 2006 that their requests for leave to appeal to the Supreme Court had been refused. At the same time the Leave to Appeal Board apologised for the length of the proceedings before it. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 26. 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...” A.", "Period to be taken into consideration 27. The Government contested that argument and maintained that the proceedings began on 2 July 1996, when the police had carried out a search at the applicant’s premises. 28. The applicant was of the view that the proceedings had begun on 6 May 1994, but agreed with the Government that he had certainly been substantially affected as from 2 July 1996. The applicant also pointed out that the High Court had mistakenly found that the proceedings had begun only on 12 February 1998, which was part of the applicant’s argument for bringing the case before the Supreme Court.", "29. The Court considers that the applicant was not substantially affected by the proceedings until 2 July 1996, when the police carried out a search at the applicant’s premises. The proceedings ended on 21 June 2006, when the Leave to Appeal Board refused the applicant’s request for leave to appeal to the Supreme Court against the High Court’s judgment. Thus, the criminal proceedings lasted almost ten years. B. Reasonableness of the length of the proceedings 30.", "From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 1. Complexity of the case 31. The Government submitted that the criminal proceedings were extraordinarily complex as concerns the facts, law and procedural issues.", "32. The applicant disputed that the case was highly complex and emphasised, among other things, that in his case very few foreign company structures were used and almost all the banks were based in Denmark, thus a very limited part of the investigation had to be carried out abroad. 33. The Court reiterates that the scale and complexity of a criminal case concerning fraud, which is often compounded further by the involvement of several suspects, may justify the extensive length of proceedings (see, among other authorities, C.P. and Others v. France, no.", "36009/97, § 30, 1 August 2000; Hozee v. the Netherlands, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1102, § 52; Wejrup v. Denmark (dec.), no. 49126/99, ECHR 2002-IV, Petersen v. Denmark (dec.), no. 6315/02, 13 May 2004; and Frederiksen v. Denmark (dec.), 23012/02, 16 September 2004). 34. In the present case the applicant and five co-accused were convicted of tax asset stripping of numerous private limited companies and corporate groups.", "The applicant and the co-accused were intricately interconnected and had collaborated in the economic crime. 35. The applicant was found guilty on forty-four counts out of a total of fifty-nine and his responsibility related to an amount of approximately EUR 11,600,000 of the total amount of tax evaded in the case, which came to approximately EUR 19,000,000. 36. The court records before the City Court and the High Court ran to 1,330 pages and 861 pages respectively, and the City Court judgment ran to 220 pages.", "37. The Court points out that the City Court, in its judgment of 6 April 2001, noted that the complexity of the acts carried out by the applicant and the five co-accused partly when buying and “stripping” the companies of assets, partly when writing off projects abroad, necessitated an investigation of an extraordinary scope. It found no reason to criticise the prosecution’s decision to join the criminal proceedings against the applicant and the five co‑accused and it emphasised that due to the nature and scope of the charges, the cases against applicant and the co-accused B and R could not proceed before the cases against H, N and A had been heard. 38. Furthermore, the Court observes that the investigation was carried out in Denmark and abroad and necessitated the issuing of numerous search warrants and discovery orders.", "39. Having regard to these circumstances, the Court finds that the investigations and the court proceedings were relevant, time-consuming and difficult. Thus, for the purposes of Article 6 of the Convention the case was particularly complex. 2. The applicant’s conduct 40.", "In the Government’s opinion the applicant’s conduct contributed to some extent to the length of the proceedings, firstly because the crimes that he had committed rendered it necessary to carry out comprehensive and time-consuming investigations in Denmark and abroad, in addition to thorough reviews of large quantities of accounting material, secondly because the applicant’s counsel was unable to appear before the High Court in the autumn of 2002, and thirdly because one of the co-defendants fell ill in the spring of 2004. 41. The applicant disagreed and contended that his conduct had not given rise to any significant delay. 42. It is true that the use by the applicant and the co-accused in the present case of intricate corporate structures, several of which were domiciled in or connected with foreign countries, obviously had the purpose of concealing the tax asset stripping, but this has already been taken into account in the assessment of the complexity of the case.", "Moreover, the Court finds that the applicant, during the criminal proceedings against him, did not act in a way that inappropriately prolonged those proceedings (see, for example, Petersen v. Denmark (dec.), no. 6315/02, 12 May 2004). 3. Conduct of the national authorities 43. The Government found, taking into consideration the nature, scope and complexity of the case, that no criticism could be made of the time spent on the investigation, and that the proceedings before the courts were accomplished within a reasonable time and without any periods of inactivity.", "The only “inactive” period in the case occurred before the Leave to Appeal Board due to a regrettable error and lasted for approximately eight months. In the Government’s view, however, that period could not be considered so grave in proceedings lasting a total of ten years in such a highly complex case that a violation of Article 6 § 1 should be found on that ground. 44. The applicant contended that throughout the investigation and the court proceedings there were several periods of inactivity or almost no activity, in particular from March 1995 until June 1998; from May 2001 until September 2002; and from May 2005 until June 2006. Moreover, although not formally objecting to his case having been heard together with the co-defendants’ cases, having regard to the overall period and what was at stake for him, the applicant maintained that the length of the proceedings exceeded the reasonable time requirement within Article 6 of the Convention.", "45. At the outset, the Court observes that due to the mutual connection between the cases and their character the investigations and subsequently the criminal trials of the applicant and the five co-accused were joined. The City Court found no reason to criticise this decision although admittedly it caused longer periods of inactivity during one part of the case, while investigation was going on in another part of the case. Noting that the accuseds’ roles were closely interconnected and that a substantial part of the evidence procured was relevant to all of the accused, the Court can agree that the decision to join the investigations and the trials was appropriate. 46.", "Moreover, the facts of the case do not disclose failure on the part of the investigating authorities or the prosecution to perform their duties with due diligence in the period from 2 July 1996, when the police carried out a search at the applicant’s premises, until 25 June 1998 when the indictment was submitted to the City Court. 47. Likewise, as to the proceedings before the City Court, which lasted from 25 June 1998 to 6 April 2001, thus almost two years and ten months, and those before the High Court, which lasted from 15 May 2001 to 28 September 2004, thus almost three years and five months, in the light of the complexity of the case and the unavoidable difficulties which have to be taken into consideration in a trial of that size involving six co-accused the Court finds that the length of those proceedings cannot be criticised (see, inter alia, Petersen, cited above, Frederiksen v. Denmark, (dec.), application no. 23012/02, 16 September 2004; and Wallin Karlsen v. Denmark (dec.), 23523/02), 1 February 2005). 48.", "The Court cannot ignore, however, that after more than eight years of criminal proceedings, it took the Leave to Appeal Board approximately one year and eight months to decide whether the applicant and the co-defendants should be granted leave to appeal to the Supreme Court, and that it is not in dispute that the main reason for that was that the case lay dormant by mistake for approximately eight months from 5 August 2005 to 2 May 2006. 4. Overall assessment 49. In the light of the above, notably the above-mentioned period of inactivity before the Leave to Appeal Board and the overall length of the proceedings, the Court concludes that the requirement of a “reasonable time” laid down in Article 6 § 1 of the Convention was not complied with in the present case. There has accordingly been a breach of Article 6 § 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 51. The applicant claimed DKK 100,000, equal to approximately EUR[1] 13,410 in compensation for the violation of his right to a fair trial within a reasonable time.", "52. Subject to the Court finding a violation, the Government agreed that generally compensation should be awarded. They found, however, that the applicant’s claim was excessive and disproportionate. 53. The Court considers that the applicant must have sustained non‑pecuniary damage.", "Having regard to its finding above, notably as to the main reason for its finding a violation, and ruling on an equitable basis, it awards him EUR 2,000. B. Costs and expenses 54. The applicant did not make any claims as regards the costs and expenses, accordingly no award is made under this head. C. Default interest 55.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Held that there has been a violation of Article 6 § 1 of the Convention; 2. Held (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 plus any tax that may be chargeable on this amount, which is 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. Done in English, and notified in writing on 11 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekRait Maruste Registrar President [1] On 6 December 2007, when the applicant submitted his claim." ]
[ "FIFTH SECTION CASE OF SITNEVSKIY AND CHAYKOVSKIY v. UKRAINE (Applications nos. 48016/06 and 7817/07) JUDGMENT STRASBOURG 10 November 2016 FINAL 10/02/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the cases of Sitnevskiy and Chaykovskiy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Ganna Yudkivska,Erik Møse,Faris Vehabović,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 11 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "48016/06 and 781707) 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 Oleg Mikhaylovich Sitnevskiy (“the first applicant”) and Mr Vitaliy Viktorovich Chaykovskiy (“the second applicant”), on 8 November 2006 and 1 February 2007 respectively. 2. The applicants, who had been granted legal aid, were represented by Mr M. Tarakhkalo and Ms Y. Zayikina, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice. 3.", "The applicants alleged, in particular, that the length of the criminal proceedings against them had been unreasonable, that they had not had a fair trial in that the domestic court, in convicting them, had relied on pre-trial confessions that they and their co-defendants had later retracted and that key witnesses had not testified at the trial. In addition, the first applicant alleged that he had not had adequate facilities for the preparation of his defence and that his right to legal assistance had been breached. 4. On 14 and 30 November 2011 respectively the applications were communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1969 and is serving a life sentence in Perekhrestivka in the Sumy region (oblast). The second applicant was born in 1967 and is serving a life sentence in Gorodyshche in the Rivne region. A. Series of offences of which the applicants were convicted 6.", "According to the findings of the domestic courts, in early 2000 Mr A.B. formed an armed gang which included the applicants, Mr Vladimir Zakshevskiy (the applicant in the case of Zakshevskiy v. Ukraine, no. 7193/04, § 11, 17 March 2016), Mr S.S., Mr I.K., Mr A.S. and two others. At the time the first applicant, A.B. and Mr Zakshevskiy were former police officers and S.S. was an active police officer.", "7. The domestic courts subsequently convicted the applicants, Mr Zakshevskiy, I.K. and S.S. of various degrees of participation in attacks committed by the gang in four regions and also of the offence of participation in an armed gang (banditry). The attacks were initially investigated by the authorities as unrelated crimes committed by unidentified people. 8.", "The description of the attacks is set out in the Appendix as Episodes 1-7. 9. On various dates criminal proceedings instituted in the four regions were eventually consolidated into the case initially opened to investigate a series of attacks in and around Kharkiv (Episodes 4-6). B. Pre-trial investigation 1.", "The first applicant 10. According to the Government, on 29 October 2001 the first applicant was charged in absentia with participation in the Kharkiv attacks, which had been classified as robberies. 11. On 17 November 2001 the first applicant was arrested in Moscow, Russia. The next day the suspected gang leader A.B.", "was killed there while resisting arrest. 12. On 30 January 2002 the first applicant was extradited to Ukraine. 13. On 4 and 11 February 2002 the first applicant signed two documents explaining in detail his rights as a suspect or accused in the course of the pre-trial investigation, including the right to have a lawyer appointed for him, to consult a lawyer before being questioned for the first time and the right to remain silent.", "He waived those rights. 14. On 11 February 2002 the first applicant was questioned in the capacity of an accused, admitted his guilt on the charges of robbery, and confessed to a minor role in the Kharkiv attacks. 15. On 3 April 2002 the first applicant was questioned in the capacity of a witness, without a lawyer, about the Luhansk murder (see Episode 2 in the Appendix).", "He denied any involvement in that crime but stated that he had known A.B. since 1998 and that A.B. had confessed to him during their stay in Moscow that he had committed the Luhansk murder. 16. On 1 July 2002 the first applicant participated in a reconstruction of the attack on Mr and Mrs Va., one of the Kharkiv episodes.", "The first applicant stated that he and several accomplices had attacked Mrs Va. He also stated that A.S. had shot in Mr Va.’s direction during the attack. 17. On 10 July 2002 the first applicant was charged with offences connected with the attacks set out in the Appendix, including several murders. 18.", "While being questioned on the same day the applicant retracted all his previous statements, claiming that they had been given under physical and psychological pressure. 19. On the same day, the investigator appointed a lawyer for the applicant after finding that he had to be represented because of the murder charges but could not hire a lawyer himself. 20. On 11 July 2002 the defence lawyer met the applicant.", "2. The second applicant 21. In August and December 2000 the second applicant was questioned as a witness about the Luhansk murders and a killing in Donetsk. He denied any knowledge of or involvement in either crime but admitted that he knew A.B., had had a conflict with one of the victims, and that on the night of the Luhansk murder the second applicant had lent his lorry to the victims. 22.", "On 14 October 2001 the second applicant was arrested. On the same day he was questioned in the presence of a lawyer hired by his wife. He confessed to participation in the attacks on Mr and Mrs Va. and Mr A.I. and described the active role that the first applicant had played in them. In particular, he stated that the first applicant had taken A.S., armed with a handgun, to the place where Mr A.I.", "had been murdered (Episode 5). 23. On 7 November 2001 the second applicant was questioned in the presence of his lawyer about the circumstances of the Crimea attack (Episode 7) and participated in a reconstruction. He described his and Mr Zakshevskiy’s role in the attack, stating that he had arrived at the scene of the crime on a motorcycle with Mr Zakshevskiy. The latter had approached the victims’ car and then the second applicant had heard gunshots.", "The second applicant had then shot at the ground near the feet of Mr R.M., one of the victims, to scare him. 24. Subsequently, the second applicant also confessed to participation in in several other attacks. He retracted his confessions later in the investigation. 3.", "Pre-trial statements of co-defendants and other witnesses 25. On 11 November 2001 Mr Zakshevskiy surrendered himself to the police and provided statements to the effect that the second applicant and A.B. had told him in 2000 that they had committed the Donetsk murder and that he had also learned at the time that the first applicant and A.B. had committed the Luhansk murder. He also described the two attacks in Toretsk, the attacks on the shoe sellers near Kharkiv, and the Crimea attack (Episodes 3, 6 and 7).", "He repeated those statements the next day (see Zakshevskiy, cited above, §§ 10 and 11). In particular, in describing the attack on the shoe sellers, he stated that the applicants had followed the victims in a car while Mr Zakshevskiy, I.K. and another member of the gang had waited in ambush in an Opel Vectra near the road. After being given a signal over the telephone, Mr Zakshevskiy and I.K., wearing traffic police uniforms, had stopped the cars of two groups of victims in quick succession, first a Gazel minivan and then a Mercedes. They had threatened the victims with handguns and taken their cars to a nearby forest.", "Afterwards, the applicants had arrived and loaded stolen shoes and money into their car. 26. On 12 and 13 October 2001 Mr G.G. made statements to the investigating authorities in the presence of a lawyer, implicating the applicants in the Kharkiv attacks. 27.", "On 28 March, 23 April and 10 July 2002 S.S. was questioned in the presence of his lawyer. He stated that he had been present at the scene of the Luhansk murder in a red BMW and had observed A.B. and the first applicant commit that crime. He also stated that he had helped A.B. and the latter’s “acquaintance” to bring two handguns back from the Crimea.", "28. Arrested in Belarus in December 2001, I.K. was extradited to Ukraine. On 20 March 2002 he, while denying any active role in the crimes, stated in the presence of his lawyer that he had seen A.B. and the first applicant commit the Luhansk murder and witnessed the applicants participate in the attack on the shoe sellers near Kharkiv.", "29. At a later stage of the pre-trial investigation the applicants’ co‑defendants retracted their statements, saying they had been given under physical and psychological duress. 30. In the course of the pre-trial investigation a number of victims and other witnesses made statements subsequently used in the applicants’ conviction. There was no possibility for the applicants to put questions to those victims and witnesses at that stage or later.", "The substance of their statements, as given in the trial court’s judgment, is set out in the Appendix. C. Trial 31. The applicants and their co-defendants Mr Zakshevskiy, S.S. and I.K. stood trial at the Donetsk Regional Court of Appeal, acting as a trial court (“the trial court”). 32.", "On 14 February 2005 the trial court noted that a number of victims and other witnesses had failed to appear and ordered the police to bring Mr and Mrs Va., Mr V.K. and Mr R.K., and R.M. (Episodes 4, 6 and 7 respectively) to court. On 17 March 2005 the trial court ordered the police to bring Mr G.S. and Mr N.K., witnesses to the Luhansk murder, to court on 6 April 2005.", "33. On 6 April 2005 N.K. appeared. However, the hearing had to be adjourned because one of the judges was ill. The presiding judge asked whether the witness would appear at the next hearing.", "He replied that he wished to confirm the statements he had given in the course of the pre-trial investigation, and that the only point he might be confused about was the make of the foreign car he had seen on the night of the murder, since he was not a specialist. He asked not to be called again, citing his extreme poverty and the long distance to the court. 34. At a subsequent hearing the court read out reports from the police that V.K., R.K. and R.M. could not be brought to the court because they were not present at the addresses they had given and could not be found.", "The court also read out the death certificate of G.S. and statements by N.K., O.Va. and S.Va. that they were unable to attend. 35.", "The court then sought the parties’ opinions as to whether it would be justifiable to declare that it was not possible to obtain the appearance of those witnesses at the trial and to read out their statements. The applicants’ lawyers did not object although the defendants insisted that the witnesses be questioned. 36. The court ruled that it considered that it was not possible to have the witnesses attend the trial and proceeded to read out their pre-trial statements. D. Trial court’s judgment 37.", "On 6 October 2005 the trial court delivered its judgment. It convicted the applicants of banditry, armed robbery and related offences of carjacking, aggravated murder and attempted aggravated murder. It acquitted the applicants of several counts of robbery for lack of proof. It sentenced them to various terms of imprisonment on the charges other than murder. In respect of the murder charges the sentence was life imprisonment, which was also the final sentence for both applicants.", "38. The specific crimes of which the applicants were convicted and the key evidence relied on for those convictions is set out in the Appendix. 39. Ten pages of the judgment were dedicated to whether the defendants’ pre-trial statements could be used in evidence even though they had been retracted. In concluding that they could be used, the trial court referred in particular to corroborating evidence, including expert reports and physical evidence on the firearms used in the crimes (see Appendix).", "40. A further four pages of the judgment were dedicated to a discussion of whether the defendants’ pre-trial statements had been coerced. In rejecting that allegation, the court stated in particular that: (i) the second applicant’s statements had been made in the presence of a lawyer hired by his wife; (ii) the defendants had changed their statements over the course of the investigation to minimise their own role in the crimes and their culpability, which was inconsistent with their allegation that their statements had been forced on them by the authorities; (iii) a video recording of the second applicant’s interview and of a reconstruction of the crime with him and Mr Zakshevskiy had shown that his statements had been given freely; (iv) two investigations of the defendants’ allegations of undue pressure and ill-treatment conducted by the prosecutor’s office at the trial court’s request had found no proof in support of the allegations, which was consistent with the court’s own conclusions. 41. In response to the applicants’ allegations of various procedural irregularities, in particular alleged violations of their right to defence, in the course of the pre-trial investigation, the trial court stated that all evidence obtained in violation of the Code of Criminal Procedure had been excluded from the file and the remaining evidence had been obtained in compliance with the Code.", "E. Preparation for appeal and appeal proceedings 42. Upon completion of the trial the first applicant began studying the case file. On 12 May 2006 he signed a statement that he had examined the record of the trial in full. Afterwards, he examined the case file on at least five days up to 2 August 2006. 43.", "On various dates the applicants lodged appeals and supplementary appeals against their conviction, arguing in particular that the trial court had convicted them without sufficient proof, and based on pre-trial statements given under duress rather than on their testimony in court. They also alleged that their defence rights had been breached in various ways. 44. In his appeal the first applicant submitted, in particular, that the witnesses G.S. and N.K.", "had in the course of the pre-trial investigation identified, based on photographs, A.B. as the person they had seen standing on the road at the scene of the Luhansk murder dressed as a traffic police officer. He also submitted that Mr and Mrs Va. had given descriptions of the attackers in their pre-trial statements which had not fitted him. 45. The second applicant submitted, in particular, that in the course of his pre-trial interviews R.M.", "had stated that he clearly remembered the attackers, would be able to recognise them by their faces and voices and had provided a description which had enabled an identikit picture to be prepared. However, that picture, in the second applicant’s opinion, had not looked like him. 46. On 19 October 2006 the Supreme Court dismissed the applicants’ arguments as unsubstantiated and upheld their conviction and sentence. It stated, in particular, that the trial court findings that the applicant were guilty were supported by various evidence, in particular the statements of witnesses G.S.", "and N.K., Mr and Mrs Va. and R.M. II. RELEVANT DOMESTIC LAW 47. The relevant provisions of domestic law governing the right to legal assistance and the summoning of witnesses are summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-47, 12 June 2008), and Karpyuk and Others v. Ukraine (nos.", "30582/04 and 32152/04, §§ 77-80, 6 October 2015) respectively. 48. The relevant provisions of domestic law governing the reopening of criminal proceedings can be found in Zakshevskiy (cited above, §§ 50 and 51). THE LAW I. JOINDER OF THE APPLICATIONS 49. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 50. The applicants complained of various violations of Article 6 of the Convention, the relevant parts of which provide: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A.", "Alleged violation of Article 6 §§ 1 and 3 (b) 51. The first applicant submitted that after he had examined the trial record he had not been given sufficient time to study the rest of the case file in preparation for his appeal. The Government contested that complaint. 52. The Court observes that there is no suggestion that the first applicant did not have enough time or lacked the necessary facilities to study the case file prior to his trial.", "The applicant submitted that he had been able to study the record of the trial in full (see paragraph 42 above). The applicant failed to specify which material other than the record of the trial had been added to the file in the course of the trial and which of them he believed he needed to study. He also failed to explain why he needed to re-examine the case file volumes which he had examined before the trial. 53. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Alleged violation of Article 6 §§ 1 and 3 (c) in respect of the first applicant 1. The parties’ submissions 54. The first applicant argued that under domestic law the waivers he had signed, allegedly under duress, on 4 and 11 February 2002 should not have been accepted in relation to the episodes which led to his conviction for murder. He argued that the investigator had artificially changed the initial classification of those episodes to the lesser crime of robbery in order to circumvent safeguards for murder suspects.", "A lawyer should have been appointed for the applicant before his first interrogation on 11 February 2002 and all the subsequent interrogations, until he first saw a lawyer on 11 July 2002, had been in breach of Article 6. The participation of legal aid lawyers in the case had been sporadic even after he had been provided with a lawyer. He had also not been provided with a lawyer for the proceedings before the Supreme Court. 55. The Government submitted that the applicant had waived his right to a lawyer and those waivers had been accepted because at that stage the applicant had not been charged with murder.", "Once he had been so charged, a lawyer had been appointed. The applicant had been able to raise his complaints before the trial court and the Supreme Court which had examined them and found them unsubstantiated. The applicant’s guilt had been proven by a range of evidence other than his statements. 2. The Court’s assessment (a) Admissibility 56.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits (i) General principles 57. Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right.", "Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction. (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). 58.", "The above test in Salduz (cited above) for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage, the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 257, 13 September 2016).", "59. As to the first stage of the test, the criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular when a suspect is first questioned, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. It is of relevance, when assessing whether compelling reasons have been demonstrated, whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (ibid., § 258). 60. Where compelling reasons are established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (ibid., § 264).", "61. Where compelling reasons are not established, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (ibid., § 265). 62.", "When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account: (a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity. (b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair. (c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use. (d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion. (e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.", "(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified. (g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case. (h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions. (i) The weight of the public interest in the investigation and punishment of the particular offence in issue. (j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).", "63. 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, his entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II).", "For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 173, 22 May 2012). The right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015). (ii) Application of the above principles to the present case (α) Question of waiver 64.", "The Court observes that in the period of the pre-trial investigation when he was unrepresented, that is until 11 July 2002, the applicant was questioned about and participated in a reconstruction of the offences of which he was subsequently convicted and which were eventually classified by the domestic courts as armed robbery, carjacking, attempted aggravated murder and aggravated murder. 65. On 4 and 11 February 2002 the applicant signed waivers of his right to a lawyer. 66. As far as the charges other than murder are concerned, there is no indication that those waivers were not effective.", "The first applicant’s ability to understand them must have been all the greater given that he was a former police officer (see Paskal v. Ukraine, no. 24652/04, §§ 77 and 78, 15 September 2011). The Court thus concludes that the applicant’s waiver of his right to a lawyer was effective as far as it concerned his questioning and statements regarding the offences other than murder. The authorities, therefore, cannot be held responsible for the consequences that waiver entailed for his conviction on those charges (see Zakshevskiy, cited above, § 113). 67.", "The Court cannot, however, reach the same conclusion as regards the first applicant’s defence rights in the context of the murder charges against him in view of the following. 68. On 11 February 2002 the applicant was questioned about and made statements admitting to a minor role in the attacks on Mr and Mrs Va. and on Mr A.I. He further admitted to participating in the attack on Mr and Mrs Va. in the course of a reconstruction on 1 July 2002. Moreover, on 3 April 2002 he was questioned about the Luhansk murder without a lawyer and, while denying any personal involvement, stated that A.B.", "had confessed to him to having committed that crime. 69. At the time he made those statements he was officially suspected only of robbery, even though the Luhansk episode and the attack on Mr A.I. had been classified as murders from the beginning (see Episodes 2 and 5 in the Appendix). However, he was subsequently charged with and eventually convicted of attempted aggravated murder in connection with the attack on Mr and Mrs Va., aggravated murder in connection with the attack on Mr A.I., and aggravated murder in the Luhansk region.", "70. The charges of murder and attempted murder potentially carried a life sentence. Given that domestic law barred waivers of the right to legal assistance for persons charged with such offences, to assess the effectiveness of the applicant’s waivers the Court needs to evaluate the impact of the statements the applicant made during that period on his conviction on those charges. 71. In convicting the applicant on various charges, including attempted murder, related to the attack on Mr and Mrs Va., the trial court explicitly relied on the first applicant’s statements about that attack made in the course of the reconstruction on 1 July 2002.", "The domestic courts did not explicitly refer to any of the statements the applicant made about the attack on Mr A.I., but they also did not explicitly exclude that evidence (see Khayrov v. Ukraine, no. 19157/06, § 78, 15 November 2012). In those statements the applicant admitted to taking part in the attack, even though he denied any role in the infliction of deadly violence on the victim. Therefore, it cannot be excluded that his earlier statements could have undermined his later defence against that charge of murder. 72.", "The Court concludes that it cannot be ruled out that the statements the applicant made after waiving his right to a lawyer had an impact on his conviction on the murder charges related to the attacks on Mr and Mrs Va. and Mr A.I., which carried a potential life sentence. 73. In line with its consistent case-law on this point in many cases against Ukraine, the Court concludes that, given the initial classification of the criminal charges against the applicant at the early stages of the investigation, the applicant made the waivers in question without being aware of all the relevant legal circumstances. Accordingly, the waivers were not attended by minimum safeguards commensurate with their importance (see, for example, Leonid Lazarenko v. Ukraine, no. 22313/04, §§ 54 and 56, 28 October 2010).", "In this connection the Court reiterates that in Balitskiy v. Ukraine (no. 12793/03, 3 November 2011) it identified as a recurrent problem the erroneous classification, at the initial stage of investigations, of murders as lesser offences not requiring mandatory legal assistance, resulting in the applicants being effectively denied appropriate legal assistance (ibid., §§ 50 and 52). 74. Therefore, the applicant’s waivers cannot be considered effective as far as his conviction in connection with the attacks on Mr and Mrs Va. And Mr A.I. is concerned.", "75. Turning now to the Luhansk murder, the Court observes that on 3 April 2002 the applicant was questioned about that crime as a witness rather than as a suspect or an accused. However, his waivers of 4 and 11 February 2002 referred to his rights as a suspect and as an accused and, in addition, at the time he signed them he was officially suspected of robbery only. Accordingly, the Court finds that the applicant cannot be said to have unequivocally waived his right to a lawyer in respect of his questioning on 3 April 2002 about the Luhansk murder. (β) Whether compelling reasons existed for restricting access to a lawyer 76.", "Given that there was no effective waiver of the right to a lawyer in respect of the above three episodes, the question arises whether the absence of a lawyer was justified by a compelling reason. On the facts, the Court perceives no such reason. 77. Accordingly, the Court must apply a very strict scrutiny in assessing whether the absence of a lawyer undermined the fairness of the proceedings (see Ibrahim and Others, cited above, § 265). Moreover, the burden of proof is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced (ibid.).", "(γ) Overall fairness of the proceedings 78. In making the overall fairness assessment the Court is guided by the Ibrahim criteria (see paragraph 62 above), to the extent it is appropriate in the circumstances of the present case. 79. Turning to those criteria, the Court will first list those factors which tend to argue in favour of considering the proceedings fair: (i) the applicant was not particularly vulnerable; (ii) as to the quality of evidence, there is no evidence before the Court that would indicate that any compulsion was involved (see in particular paragraph 138 below); (iii) the evidence in the case was assessed by professional judges, and (iv) the public interest in the prosecution of the offences imputed to the applicant – aggravated murders committed by an organised armed gang – was very strong. 80.", "However, other factors tend to militate in favour of the finding that the fairness of the proceedings was irretrievably prejudiced. 81. While the authorities technically complied with the domestic legal rules which at the time governed access to a lawyer at the stage of investigation, the manner in which those rules were applied was in itself a manifestation of a practice found by the Court to be contrary to the Convention (see paragraph 73 above). Moreover, that technical compliance in fact undermined the applicant’s ability in practice to challenge the use of evidence obtained from him in the absence of a lawyer because the domestic courts found it sufficient to observe that domestic law had been complied with (see paragraph 41 above). 82.", "As to the use to which the evidence was put, as the Court found above (see paragraph 71 above), the domestic courts explicitly relied on the applicant’s statements admitting to participating in the attack on Mr and Mrs Va. and, at the least, failed to exclude a similar statement he made about the attack on A.I. 83. As far as the Luhansk murder is concerned, it is true that the applicant on 3 April 2002 and throughout the proceedings consistently denied any involvement in that murder (see paragraph 44 above). However, he stated in that first interview that the crime had been committed by A.B. and the Court cannot lose sight of the fact that that position, repeated by the applicant at the trial, was used by the trial court as part of the evidence supporting his and his co-defendants’ conviction in relation to that crime (see Episode 2 in the Appendix).", "It cannot be ruled out that, having given that statement without legal advice at an early stage of the proceedings, the first applicant might have found it prejudicial to change it at the trial. Accordingly, that early declaration may have undermined his defence in respect of that episode overall. 84. Those early admissions likely framed the way the authorities approached the investigation and therefore likely formed a significant part of the evidence against him. Despite the limited role that each of them played in the applicant’s conviction for each of the three episodes taken separately, it is probable that their cumulative effect undermined his overall defence against the charges related to the Luhansk murder and the attacks on Mr and Mrs Va. and A.I.", "(Episodes 2, 4 and 5 in the Appendix). 85. It is true that the other evidence of the applicant’s guilt was rather extensive. However, the Court must bear in mind its conclusion, set out below, that some of the evidence concerning the applicant’s involvement in the Luhansk episode and the attack on Mr and Mrs Va. was admitted in breach of his rights under Article 6 §§ 1 and 3 (d) (see paragraph 113 and 126 below). 86.", "The Court concludes that the Government have failed to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial on those charges was not irretrievably prejudiced by the restriction on the applicant’s access to legal advice at the investigation stage. 87. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant. 88. In the light of that finding the Court does not need to examine whether the first applicant’s right to legal assistance was violated at the subsequent stages of the proceedings (see, for example, Khayrov v. Ukraine, no.", "19157/06, § 79, 15 November 2012). C. Alleged violation of Article 6 §§ 1 and 3 (d) 1. The parties’ submissions (a) Failure to summon witnesses to the attack on A.I. 89. The second applicant complained that unspecified witnesses to the attack on Mr A.I.", "(Episode 5) had not been summoned. 90. The Government submitted that the applicant had never identified any such witnesses. (b) Admission of pre-trial statements by absent witnesses 91. The applicants submitted that their rights under Article 6 §§ 1 and 3 (d) had been breached on account of the domestic courts’ reliance on untested witness statements by O.Va., S.Va., V.K., R.K. and R.M.", "and, as far as the first applicant was concerned, G.S. and N.K. While the applicants’ lawyers had not objected to those statements being read out at the trial, the applicant themselves had objected and therefore they had not waived their rights in relation to those witnesses. 92. The Government submitted that none of the witnesses in question had identified the applicants as having committed the crimes in question and for that reason their statements had not been “decisive” for the conviction.", "They also stressed that the applicants’ lawyers had not objected to the reading out of the pre-trial statements. 2. The Court’s assessment (a) Admissibility (i) Failure to summon witnesses to the attack on A.I. 93. The Court observes that the second applicant failed to identify, both in the domestic proceedings and in his submissions to the Court, any specific witnesses who could have testified about the circumstances of the attack on Mr A.I.", "but who were not summoned. 94. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. (ii) Admission of pre-trial statements by absent witnesses 95. The Court considers that the applicants’ other complaints under Article 6 §§ 1 and 3 (d) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. (b) Merits (i) General principles 96. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all the evidence against him must normally be produced in his presence at a public hearing for the purpose of adversarial argument (see Schatschaschwili v. Germany [GC], no. 9154/10, § 103, ECHR 2015).", "97. The principles to be applied in cases where a prosecution witness did not attend the trial and statements previously made by him or her were admitted as evidence have been summarised and refined in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011, and confirmed in Schatschaschwili, cited above). According to the principles developed in that judgment, it is necessary to examine in three steps the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who was not present and questioned at the trial are used as evidence (ibid., § 152). The Court must examine: (i) whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statement as evidence (ibid., §§ 119-125); (ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction (ibid., §§ 119 and 126-147); and (iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147).", "98. Even where there were no good reasons for the non-attendance of a witness, the Court is still called upon to assess whether the witness statement was the sole or decisive evidence supporting the accused’s conviction and whether there were sufficient counterbalancing factors to secure a fair and proper assessment of the reliability of such evidence (see Schatschaschwili, cited above, § 113). 99. Given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent witness was the sole or the decisive basis for the applicant’s conviction. It must also do so in those cases where, following its assessment of the domestic courts’ evaluation of the weight of the evidence, it finds it unclear whether the evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight and that its admission may have handicapped the defence (ibid., § 116).", "100. As to the order of the three steps of the Al-Khawaja test, the Court has held that, given that all three steps of the test are interrelated and, taken together, serve to establish whether or not the criminal proceedings at issue have, as a whole, been fair, it may be appropriate, in a given case, to examine the steps in a different order, in particular if one of the steps proves to be particularly conclusive as to either the fairness or unfairness of the proceedings (ibid., § 118). (ii) Application of the above principles to the present case (α) Considerations relating to all the absent witnesses 101. The Court observes at the outset that even though the applicants’ lawyers did not object to the reading out of the witnesses’ pre-trial statements at the trial, the applicants themselves did. The Court notes that the trial court solicited the applicants’ opinion independently from their professional advisers (see paragraph 35 above).", "Accordingly, the Court considers that the applicants cannot be considered to have waived their rights in respect of the examination of those witnesses on account of their lawyers’ position. 102. Next, adopting the flexible approach, endorsed in Schatschaschwili (cited above, § 118), to the order in which the three Al-Khawaja steps are to be applied, the Court first notes that it does not perceive any counterbalancing factors in the proceedings other than (i) the availability and strength of further incriminating evidence and (ii) the opportunity, which the applicants enjoyed in the course of the domestic proceedings, to give their own version of the events and to cast doubt on the credibility of the absent witnesses and point out any incoherence of inconsistency in their statements (see Schatschaschwili, cited above, §§ 126-130, for a discussion of such possible counterbalancing factors). As to the first of those counterbalancing factors, the Court finds it appropriate to examine it in connection with the closely related question of whether the statements of a given group of witnesses were sole or decisive. As to the second factor, the Court observes that the Supreme Court failed to comment in any detail on the applicant’s specific arguments, raised in their appeals, pointing to contradictions in the pre-trial statements of a number of witnesses (see paragraphs 44-46 above).", "In view of such lack of reasoning in rejecting the applicants’ objections, the Court does not consider that the mere fact that the applicants were afforded an opportunity to raise those objections was in itself capable of providing an adequate counterbalancing factor for the handicap which the defence faced in the present case on account of admission of the statements of the absent witnesses (compare Trampevski v. the former Yugoslav Republic of Macedonia, no. 4570/07, § 49, 10 July 2012, and Riahi v. Belgium, no. 65400/10, § 41, 14 June 2016). 103. On the latter point, the Court observes that the statements of the absent witnesses were not the sole evidence of the applicants’ guilt on any of the charges arising from the episodes in question.", "The domestic courts did not explicitly indicate whether they considered those statements “decisive”, meaning likely to be determinative of the outcome of the case (ibid., § 123). It remains for the Court to make its own assessment of that question in relation to each group of witnesses and, where relevant, each applicant separately. (β) Witnesses G.S. and N.K. (Episode 2 in the Appendix) - Whether there was a good reason for the non-attendance of the witnesses 104.", "Witness G.S. had died by the time of the trial. The trial court, therefore, had a good reason to admit his pre-trial statement as evidence (see Al-Khawaja, cited above, §§ 121 and 153). 105. By contrast, it appears that the only reason for the failure to question N.K.", "at the trial was his unwillingness to travel twice from where he lived, apparently in a different region, to the trial court (see paragraph 33 above). It does not appear that his claim that extreme poverty prevented him from travelling was investigated. In short, it does not appear that the trial court subjected the witness’s reasons for his unwillingness to appear to careful scrutiny (ibid., § 122) and there is no indication that it took any steps to ensure that he would appear. In those circumstances, the Court finds that no good reason has been shown for the non-attendance of N.K. 106.", "The Court reiterates that while the absence of a good reason for the non-attendance of a witness cannot in itself be conclusive of the unfairness of a trial, it is a very important factor to be weighed in the balance when assessing the overall fairness of a trial and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (ibid., § 113). It will also be guided by that consideration in considering the admission of the statements of other absent witnesses below. - Whether the evidence of the witnesses was the sole or a decisive basis for the conviction 107. The Court notes that G.S. and N.K.", "did not witness the actual murder. However, they were the only independent witnesses of the events related to the Luhansk murder who claimed to have seen a person wearing police insignia and his car near the scene of the crime (see Episode 2 in the Appendix). In its judgment, the trial court identified that person as the first applicant whose role it was, according to the court, to stop the victims’ car by impersonating a traffic policeman. According to the findings of the courts, after the car had been stopped that way, A.B. and the first applicant had shot those in it.", "The Court observes that in his submissions domestically the applicant alleged (see paragraph 44 above), and this allegation had not been specifically rebutted, that in the course of the pre-trial investigation G.S. and N.K. had visually identified, on the basis of photographs, A.B., rather than the first applicant, as the person with police insignia they had seen at the scene of the crime. However, the domestic courts never referred to or relied upon those alleged identification results. 108.", "In those circumstances, the Court is satisfied that the statements of those witnesses were likely to have been determinative of the outcome of the case as far as the Luhansk murder was concerned and, therefore, appear to have been “decisive” in that regard. - Whether there were sufficient counterbalancing factors to compensate for the handicap under which the defence laboured and fairness assessment 109. The Court notes that there was other extensive evidence supporting the first applicant’s conviction for the Luhansk murder. However, it appears that a key element of that corroborating evidence was the co-defendants’ pre-trial statements which they retracted but which themselves were considered by the trial court as corroborated by the pre-trial statements of G.S. and N.K.", "(see Episode 2 in the Appendix). 110. In other words, the trial court relied on the statements of absent witnesses as grounds for dismissing the co-defendants’ retraction of their pre-trial statements and at the same time used those confessions to corroborate untested witness statements. Therefore, the availability and strength of other incriminating evidence, in view of its “circular” nature, was not a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured. 111.", "In view of this conclusion and given the absence of a good reason for the failure to examine N.K. and the lack of any procedural measures to compensate for that handicap, the court concludes that the admission of G.S.’s and N.K.’s pre-trial statements in evidence against the first applicant undermined the fairness of the proceedings against him in respect of the Luhansk murder. 112. The fact that there was a good reason for G.S.’s non-appearance does not change that conclusion, in particular because the two witnesses appear to have made similar statements about the same circumstances and the possibility to cross-examine one of them, N.K., who was in principle available for questioning at the trial, could have remedied any handicap created by the admission of the statement of the deceased witness, G.S. - Conclusion 113.", "There has, therefore, been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the first applicant on account of the admission of the untested statements of G.S. and N.K. as evidence. (γ) Witnesses O.Va., S.Va., V.K., R.K. and R.M. (Episodes 4, 6 and 7 in the Appendix) - Whether there was a good reason for the non-attendance of the witnesses 114.", "As far as O.Va. and S.Va. are concerned (see Episode 4 in the Appendix), the Court observes that the trial court based its decision to rely on those witnesses’ pre-trial statements on the letter they had sent to the court asserting that they were unable to appear. There is no indication of any specific reasons given by them for being unable to appear (see paragraph 34 above). According to the applicants’ submissions, uncontested by the Government, no specific reason was ever in fact given.", "115. As far as V.K., R.K. and R.M. are concerned (see Episodes 6 and 7 in the Appendix), the Court observes that the trial court repeatedly summoned them and searched for them with the help of the police. However, it is unclear what efforts were made by the police to locate them, other than finding that they were not at the addresses they had given. There is no indication that the trial court enquired whether the police ever attempted to find out what their new addresses were or to get details about their absence, including whether it was permanent or temporary (compare Gabrielyan v. Armenia, no.", "8088/05, § 82, 10 April 2012). 116. It is also notable that the trial court failed to scrutinise the reasons for each witness’s failure to appear or to take account of each person’s specific situation (see Schatschaschwili, cited above, § 122) and instead made a general decision about all of them (see paragraph 34 above). 117. Accordingly, the Court concludes that it has not been shown that there were good reasons for the non-appearance of O.Va., S.Va., V.K., R.K. and R.M.", "- Whether the evidence of the witnesses was the sole or a decisive basis for the conviction 118. The Court observes that the witnesses in question, who were also the victims, were the only eyewitnesses of the respective attacks, other than the defendants (compare Schatschaschwili, cited above, § 35). 119. As far as O.Va. and S.Va.", "are concerned, the Court observes that while the applicants’ conviction in respect of the attack on them was also supported by the second applicant’s pre-trial confession, he later retracted it. The other evidence in the case was merely circumstantial. In those circumstances, the Court considers that O.Va.’s and S.Va.’s statements were likely to have been determinative of the outcome of the case related to that criminal episode, and, therefore, appear to have been “decisive”. 120. As far as V.K.", "and R.K. are concerned, the Court observes that the main source of information about the applicants’ role in the attacks on them and two other shoe sellers were the statements of the co-defendants. Nothing in the statements of the absent witnesses, and indeed no material in the case file, indicates that the victims had any contact with the applicants or any knowledge of their role in the crime (see in particular paragraph 25 above and Episode 6 in the Appendix). Therefore, the Court is satisfied that the statements of V.K. and R.K. were neither decisive for the applicants’ conviction nor carried such significant weight that they may have handicapped the defence. 121.", "As to R.M.’s statement, the Court observes that according to the findings of the domestic courts only the second applicant directly participated in the attack on R.M. and his bodyguard (see Episode 7 in the Appendix). According to the domestic courts’ findings, the first applicant played a role only in the preparation of that attack. There is no indication that R.M. had any contact with the first applicant or had any idea of his role in it.", "Therefore, the Court is satisfied that R.M.’s statement was neither decisive for the first applicant’s conviction nor carried such significant weight that it may have handicapped his defence. 122. As to the role of R.M.’s statements in the second applicant’s conviction, the Court observes that R.M. was the only surviving eyewitness of that attack and he gave statements on which the domestic courts relied. They found that it was the second applicant who had shot at R.M.", "While there was a wide array of circumstantial evidence pointing to the second applicant’s role in the attack, the only other evidence pointing directly to him as having used deadly violence was his own pre-trial confession, which he repudiated at the trial, and Mr Zakshevskiy’s pre-trial confessions, some of which were obtained in violation of his right to legal assistance (see Zakshevskiy, cited above, §§ 119-23). Moreover, according to the second applicant’s uncontested submissions, R.M. had stated in the course of his pre-trial interviews that he clearly remembered the attackers and would be able to recognise their faces and voices (see paragraph 45 above). In those circumstances, while the Court finds it unclear whether R.M.’s statement was decisive for the second applicant’s conviction, it is satisfied that it carried significant weight and that its admission may have handicapped his defence. - Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured and fairness assessment 123.", "For the reasons stated in paragraphs 119 and 122 above the Court considers that other corroborative evidence was not strong enough to constitute a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured on account of the admission of the pre-trial statements of O.Va. and S.Va. and, as far as the second applicant was concerned, of R.M. 124. The Court finds, accordingly, in view of the fact that no good reason was shown for the non-appearance of those witnesses (see paragraph 106 above) and the lack of any procedural measures to compensate for the handicap under which the defence laboured, that reliance on their untested statements in the applicants’ conviction undermined the fairness of the proceedings against them in respect of the relevant attacks.", "125. In contrast, given the Court’s finding in paragraphs 120 and 121 that V.K.’s and R.K.’s statements were neither “decisive” nor “carried significant weight” in the applicants’ conviction and that R.M.’s statement was neither “decisive” nor “carried significant weight” in the first applicant’s conviction, it is not necessary to review the existence of counterbalancing factors in those instances (see Schatschaschwili, cited above, § 116). Given the limited impact of those untested statements, their admission was not able to undermine the overall fairness of the proceedings related to those episodes. However, the Court observes that in any event the testimony of the other group of shoe sellers who were victims, L.K. and A.M. (see Episode 6 in the Appendix), constituted such a counterbalancing factor because it showed strong similarities with the statements of the absent victims in respect of those two closely related attacks (ibid., § 128).", "Likewise, the first applicant’s conviction for his role in the attack on R.M. was supported by a wide array of other evidence which also provided a counterbalancing factor in that regard. - Conclusion 126. The Court finds, therefore, that: (i) there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the applicants on account of the admission of the untested statements of O.Va. and S.Va.", "as evidence and, in respect of the second applicant, on account of the admission of the untested statements of R.M. as evidence; (ii) there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the first applicant on account of the admission of the untested statements of R.M. as evidence and, in respect of both applicants, on account of the admission of the untested statements of V.K. and R.K. as evidence. D. Alleged violation of Article 6 § 1 in respect of the domestic courts’ reliance on pre-trial confessions for conviction 127.", "The applicants submitted that there had been a breach of Article 6 § 1 of the Convention because the domestic courts had relied on the pre-trial confessions that they and their co-defendants had made and had failed to give sufficient weight to their allegation that those statements had been obtained as a result of ill-treatment in breach of their right not to incriminate themselves. 128. The Government submitted that the defendants’ allegations of ill‑treatment had been examined and dismissed as unsubstantiated. In addition to the pre-trial confessions, their conviction had been supported by other strong evidence. The trial court had provided detailed reasons for dismissing the defendants’ allegations that their confessions had been given under duress and for relying on their pre-trial statements rather than on their court testimony.", "Those findings had been upheld by the Supreme Court. 129. The Court notes its findings above that there has been a number of violations of Article 6 §§ 1 and 3 in the proceedings against the applicants, including on account of the incriminating statements made by the first applicant in the absence of a lawyer. It remains to be seen whether the applicants have made out an arguable case that the admission in evidence against them of the pre-trial confessions which they and their co-defendants made constituted an additional breach of their right to a fair trial on the grounds that those confessions had been made under duress. 130.", "The Court observes that the applicants’ allegation that they were ill‑treated is not supported by any evidence and rejects that complaint (see paragraph 138 below). It has also dismissed their co-defendant’s ill‑treatment complaint (see Zakshevskiy, cited above, §§ 126 and 129). Similar allegations by the applicants in respect of their other co-defendants are likewise unsubstantiated. It does not appear that any of the other co‑defendants has lodged a complaint with the Court. 131.", "Furthermore, the admissibility and reliability of the confessions which the applicants and the other suspects had made were scrutinised in adversarial proceedings. The applicants had an opportunity to challenge the use both of their own and their co-defendants’ statements during the trial. The trial court approached the defendants’ confessions with considerable caution. In particular, it examined at length and rejected the applicants’ assertion that those statements had been extracted under duress and were unreliable (see paragraphs 39 and 40 above). Moreover, it set out in detail its considerations in accepting as trustworthy the defendants’ pre-trial statements rather than their court testimony.", "The trial court’s judgment, including the latter aspect of it, was upheld on appeal by the Supreme Court. 132. The Court finds that the applicants have failed to provide any material or arguments to allow it to reach a conclusion which is different from that of the domestic courts (see, mutatis mutandis, Latimer v. the United Kingdom (dec.), no. 12141/04, 31 May 2005). 133.", "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. E. Alleged violation of Article 6 § 1 of the Convention on account of the length of the proceedings 134. The applicants complained under Article 6 § 1 of the Convention of the undue length of the proceedings in their case. The Government contested that allegation. 135.", "The Court notes that it has rejected Mr Zakshevskiy’s complaint concerning the length of the same proceedings (see Zakshevskiy, cited above, § 126). The Court sees no reasons to reach a different conclusion in respect of the applicants. Having regard to all the circumstances of the case, it finds that they failed to make out an arguable case that the length of the proceedings exceeded what may be considered “reasonable”. 136. 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 137. The applicants also complained under Article 3 of the Convention that they had been ill-treated to extract their confessions. They alleged additionally under Article 6 that the domestic court had erred in its assessment of evidence in the case, which had led to their conviction, although they had been innocent, and that the domestic courts had lacked impartiality. The first applicant also complained under Article 5 § 1 (c) that he had been unlawfully arrested.", "He also complained under Article 6 that the trial court had not questioned other, unspecified witnesses for the prosecution and had refused to question witnesses suggested by him. The first applicant also invoked Article 13 of the Convention. In addition, the second applicant complained of having been arbitrarily detained on the basis of false accusations and of having lacked remedies for his situation. He referred to Articles 1, 2, 5, 8, 13 and 17. 138.", "Having considered the applicants’ 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. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 139. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 140. The first applicant claimed 50,000 euros (EUR) and the second applicant claimed EUR 200,000 in respect of non-pecuniary damage. 141. The Government considered those claims unsubstantiated and excessive. 142.", "The Court observes that it has found several violations of Article 6 §§ 1 and 3 (c) and (d) of the Convention in the present case. The Court cannot speculate as to the outcome of the proceedings against the applicants (see Ibrahim, cited above, § 315). The Court notes that Article 445 of the Code of Criminal Procedure and section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow the possibility to reopen proceedings (see Zakshevskiy, cited above, §§ 50 and 51) and considers that the finding of violations constitutes in itself sufficient just satisfaction (see Leonid Lazarenko, cited above, § 65, and Zakshevskiy, cited above, § 133). B. Costs and expenses 143.", "The first applicant also claimed EUR 2,979.2 and the second applicant claimed EUR 2,975.2 for the legal costs incurred before the Court, to be paid directly into Mr Tarakhkalo’s bank account. 144. The Government observed that the applicants had failed to support some of their claim with documentary evidence. 145. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 to the first applicant and EUR 2,300 to the second applicant for the proceedings before the Court. Those awards are to be transferred directly into the account of the applicants’ lawyer, Mr Tarakhkalo. C. Default interest 146. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the first applicant’s complaints under Article 6 concerning the right to legal assistance and the applicants’ complaints under Article 6 concerning the right to confront witnesses admissible and the remainder of the applicants’ complaints inadmissible; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant; 4. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the first applicant on account of the admission of the untested statements of G.S. and N.K.", "as evidence; 5. Holds that there have been violations of Article 6 § 1 and 3 (d) of the Convention in respect of the applicants on account of the admission of the untested statements of O.Va. and S.Va. as evidence and in respect of the second applicant on account of the admission of the untested statements of R.M. as evidence; 6.", "Holds that there has been no violation of Article 6 § 1 and 3 (d) of the Convention in respect of the first applicant on account of the admission of the untested statements of R.M. as evidence and in respect of the applicants on account of the admission of the untested statements of V.K. and R.K. as evidence; 7. Holds that the finding of violations constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; 8. 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, EUR 2,500 (two thousand five hundred euros) to the first applicant and EUR 2,300 (two thousand three hundred euros) to the second applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be transferred directly to the account of the applicants’ lawyer Mr Tarakhkalo; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 10 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident APPENDIX Offences of which the applicants were convicted Number and short name of the episode. Key facts. Pre-trial witness statements, if any Which of applicants and other defendants convicted, on what charges and key evidence used for conviction Episode 1.", "Donetsk murder Second applicant: aggravated murder Facts: On 3 April 2000 Mr D.Z., who according to the applicants was a leader of a local racketeering gang, was murdered in sub-machine gun and handgun fire in the Donetsk region. Evidence: (i) the second applicant’s admission in court that he had been a victim of racketeering by D.Z., but was not guilty of murder. The court considered that this corroborated his pre-trial confession; (ii) the first applicant’s admission in court that A.B. had confessed to the murder; (iii) Mr Zakshevskiy’s pre-trial confession (see paragraph 25 above); (iv) a cartridge from the crime scene traced to S.S. Episode 2.", "Luhansk murder Both applicants, S.S. and I.K. : aggravated murder Facts: On 4 August 2000 Mr R.Z., a business owner, alleged racketeering gang leader and D.Z.’s brother, was murdered along with four associates in a Lada car by sub-machine gun and handgun fire in the Luhansk region. On the same day a prosecutor in that region instituted criminal proceedings on suspicion of aggravated murder. In convicting the applicants the trial court found that, in order to facilitate the attack, the first applicant, wearing a traffic police uniform, had waved the victims’ car down and then, once the car had stopped, together with A.B. had shot the victims.", "Evidence: (i) the first applicant’s admission in court that A.B. had told him that he had committed the murder because the victim and the members of his gang had been threatening A.B. and his sister; (ii) S.S.’s pre-trial confession, in particular that he had gone to the scene of the crime in a red BMW (see paragraph 27 above). In response to S.S. pointing out a difference between his statement and that of G.S. about the make of car, the trial court stated that that did not matter because the record of G.S.’s questioning showed that he could not distinguish clearly between different types of foreign car.", "The court also relied on S.S.’s admission at the trial that he had owned a red BMW; (iii) I.K.’s pre-trial statement (see paragraph 28 above) in which he described the circumstances of the crime, in particular that S.S.’s car had been used and that the first applicant had worn a police uniform. In accepting the statement as credible the court stated, in particular, that it was consistent with the pre-trial statements of the witnesses G.S. and N.K. For the court, those statements corroborated the other defendants’ statements about the red BMW; (iv) Mr Zakshevskiy’s pre-trial confession (see paragraph 25 above); (v) evidence that the same handgun, traced to S.S., was used in the Donetsk and Luhansk murders; (vi) an admission by the second applicant in court that at the time of the murder the victims had been using his lorry, which in the court’s opinion showed that the defendants had been able to track the victims’ movements. Untested statements: Mr G.S.", "and Mr N.K. stated that they had seen a man in a camouflage uniform with a traffic police baton, identified by the trial court as the first applicant, on the night of the Luhansk murder in the vicinity of the place where it occurred, who had stood by a red car of a foreign make, identified by the court as S.S.’s car. G.S. stated that the car looked like an Opel Omega but when shown pictures of various makes of car stated that he had doubts as to which particular model he had seen. Episode 3.", "Two attacks in Toretsk Second applicant, Mr Zakshevskiy and S.S.: robbery Facts: On 18 March and 3 September 2001 two armed robberies were committed in Toretsk (at the time Dzerzhinsk) in the Donetsk region. Evidence: (i) the applicants’ and other defendants’ pre-trial confessions; (ii) the victims’ court testimony describing an attack on them by four criminals, two of them masked, in which various property was stolen; (iii) stolen property traced to S.S. Episode 4. Attack on Mr and Mrs Va. near Kharkiv Both applicants: robbery and attempted aggravated murder Facts: On 24 May 2001 Mr O.Va. and Mrs S.Va., spouses and owners of a currency exchange business, were robbed near Kharkiv.", "O.Va. was shot in the hand. Their car was carjacked. The next day the police instituted criminal proceedings on charges of robbery. Subsequently, the trial court found it established that the attack had been committed by the applicants, A.B.", "and A.S. In the course of the attack A.S. had shot at Mr Va. Evidence: (i) the second applicant’s confession in the presence of his lawyer, confirmed during a reconstruction and in his subsequent questioning in the presence of a lawyer; (ii) Mr and Mrs Va.’s pre-trial statements. The trial court found no contradiction between the victims’ statements about three attackers and the court’s finding that there were four because the court found that the attackers may have approached the victims at different times rather than all at once; (iii) a cartridge from the crime scene traced to S.S.; (iv) G.G.’s statement in the presence of his lawyer (see paragraph 26 above). Untested statements: Mr and Mrs Va. described being attacked by three individuals.", "There is no indication of the identity of the attackers in the parts of the statements restated in the trial court’s judgment. Episode 5. Attack and murder of Mr A.I. in Kharkiv Both applicants: robbery and aggravated murder Facts: On 2 June 2001 Mr A.I., the owner of a currency exchange business, was robbed and shot in Kharkiv. Criminal proceedings were instituted against unidentified perpetrators of the attack.", "On 5 June 2001 the victim died and the crime was classified as aggravated murder. Evidence: (i) the second applicant’s confession in the presence of his lawyer; (ii) a cartridge from the scene of the crime, traced to the same weapon that was used in the attack on Mr and Mrs Va. and traced to S.S.; (iii) G.G.’s statement in the presence of his lawyer (see paragraph 26 above). Episode 6. Two attacks on shoe sellers near Kharkiv Both applicants and all co-defendants: robbery Facts: On 17 July 2001 two armed robberies were committed against two groups of shoe sellers: (i) Mr L.K. and Mr A.M., who drove a Gazel minivan, and (ii) Mr V.K.", "and Mr R.K. who drove a Mercedes car, on a road in the Kharkiv region. Men wearing traffic police uniforms stopped the cars and in quick succession they were carjacked, money and shoes were stolen, and the cars and the victims were left on the spot. Evidence: (i) Mr Zakshevskiy’s pre-trial statements (see paragraph 25 above); (ii) the results of a reconstruction conducted with the applicants, (iii) the second applicant’s confession when questioned as an accused in the presence of a lawyer; (iv) traffic police vests which the victims said the assailants had worn discovered in a spot indicated by S.S.; (v) shoes of the type stolen discovered at S.S.’s residence and a statement by Mrs N., S.S.’s wife, that the shoes had been received from the second applicant; (vi) court testimony by L.K. and A.M. They stated that their minivan had been stopped by three people in an Opel Vectra car, two of whom had been in the uniform of the traffic police.", "Two of the attackers, whom the witnesses identified as Mr Zakshevskiy and I.K., had pointed handguns at them, had got in their minivan and had driven it to a nearby forest where the victims had been bound with duct tape and put into the minivan’s trunk. After a while they had heard another car arrive and then, after the attackers had left, they had discovered that it was the Mercedes of two other shoe sellers (V.K. and R.K.) who had been robbed in the same fashion; (vii) the pre-trial statements of V.K. and R.K. describing the attack on their Mercedes car in similar terms as L.K. and A.M., whom they had met after freeing themselves after the attackers had left; (viii) G.G.’s confessions (see paragraph 26 above).", "Untested statements: V.K. and R.K. stated that individuals dressed in traffic police uniforms and orange vests had stopped their car on the pretext of a police check and had then robbed them at gunpoint. Episode 7. Crimea attack and murder Both applicants, Mr Zakshevskiy and S.S.: robbery, attempted aggravated murder and aggravated murder Facts: On 9 August 2001 Mr R.M., owner of a currency exchange business, and his bodyguard were attacked in Yevpatoria, in the Autonomous Republic of Crimea. The attackers arrived and fled on a motorcycle.", "R.M. was robbed and received gunshot wounds in the leg and chest while his bodyguard was killed. On the same day the city prosecutor’s office instituted criminal proceedings against unidentified people for armed robbery and aggravated murder. Evidence: (i) the applicants’ admission in court that they had visited Yevpatoria as tourists at A.B.’s invitation at the relevant time and had helped him buy a motorcycle; (ii) the first applicant’s testimony in court that while with A.B. in Moscow, A.B.", "had told him that he had invited them to Yevpatoria at that time to deflect attention from himself while he committed the crime; (iii) the second applicant’s pre-trial confession (see paragraph 23 above), confirmed in the course of a videotaped reconstruction of events with Mr Zakshevskiy. The court, having examined the video recordings in question, was satisfied that the defendants had spoken and acted of their own free will, and had freely made comments and responded to questions without any prompting; (iv) Mr Zakshevskiy’s pre-trial confessions (see paragraph 25 above); (v) the discovery of silencers used in the commission of the crime in the place indicated by the second applicant; (vi) cartridges discovered at the crime scene and fired from the same weapon as that used in the Kharkiv attacks on Mr and Mrs Va. and on A.I., and traced to S.S.; (vii) R.M.’s pre-trial statement; (viii) a statement by Mrs N., S.S.’s wife, that during her trip to the Crimea at the time of the murder she had seen her husband meet the applicants who had handed over two handguns to him. Untested statements: R.M. described the circumstances of the attack on him. According to the statement, on the morning of the attack he had got out of his car while his bodyguard had remained inside with a bag of money.", "At that moment a motorcycle with “two men” had appeared. One had pulled out a gun, the applicant had ducked and had received two gunshot wounds. One of the attackers had then ordered the bodyguard to hand over the money bag." ]
[ "FIFTH SECTION CASE OF PANCHENKO v. UKRAINE (Application no. 25681/03) JUDGMENT STRASBOURG 5 July 2007 FINAL 05/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. In the case of Panchenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrK. Jungwiert,MrV.", "Butkevych,MrsM. Tsatsa-Nikolovska,MrJ. Borrego Borrego,MrsR. Jaeger,MrM. Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 12 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 25681/03) 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 Russian national, Mr Anton Aleksandrovich Panchenko (“the applicant”), on 19 July 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3.", "On 5 April 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. 4. In accordance with Article 36 § 1 of the Convention, the Russian Government were invited to exercise their right to intervene in the proceedings, but they declined to do so. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1986 and lives in Kaluga, the Russian Federation. 6. On 10 July 2000 the applicant instituted civil proceedings in the Kirovsky District Court of Dnipropetrovsk, Ukraine (the “District Court”; Кіровський районний суд м. Дніпропетровська) against Ms M., his relative, claiming part of an intestate house she had received after the death of their relatives. Subsequently the applicant amended his claims seeking additional monetary compensation. 7.", "Between July 2000 and July 2001 the District Court scheduled twelve hearings, two of them being adjourned on account of the applicant's conduct (amendment of claims and failure to appear). Six hearings were adjourned on account of the defendant's failures to appear, or at her requests. Three hearings were adjourned in connection with various court matters. 8. On 24 July 2001 the court heard the case in Ms M.'s absence and allowed the applicant's claims.", "Ms M. appealed. 9. On 11 December 2001 the Dnipropetrovsk Regional Court of Appeal (the “Court of Appeal”; Апеляційний суд Дніпропетровської області), having heard both parties, upheld this judgment. 10. On 13 March 2002 Ms M. appealed in cassation.", "11. On 20 February 2003 the Supreme Court quashed the judgment of 24 July 2001 and remitted the case for a fresh consideration to the District Court on the ground that Ms M. had not been duly informed of the time of the last hearing in the case. 12. In June 2003 – November 2004 the Court scheduled seventeen hearings, two of them being adjourned on account of the parties' failure to appear, and two – on account of the applicant's conduct (one absence and one request). Eight hearings were adjourned on account of Ms T.'s absences or at her requests.", "In August 2003 the District Court fined Ms T. for her repetitive failures to appear. On two occasions hearings were adjourned in connection with various court matters. 13. On 15 November 2004 the District Court allowed the applicant's claims as to the house and dismissed his claims for compensation. 14.", "On 14 December 2004 Ms M. lodged an appeal. 15. On 21 February 2005 the Court of Appeal dismissed Ms M.'s appeal. 16. On 17 March 2005 Ms M. lodged a cassation appeal.", "17. On 26 June 2006 the Supreme Court dismissed Ms M.'s request for leave to appeal in cassation. 18. As of 20 February 2007 the enforcement proceedings were pending against Ms M. 19. In the course of the years, the applicant lodged numerous unsuccessful petitions with various Russian and Ukrainian authorities seeking to expedite the proceedings.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. 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...” 21. The Government contested that argument. 22.", "The period to be taken into consideration began on 10 July 2000. The judicial stage of the proceedings, ending on 26 June 2006, was five years and eleven and a half months for three levels of jurisdiction. On 20 February 2007 the applicant last informed the Court that the enforcement proceedings, started after the pronouncement of the final judgment, were still pending. A. Admissibility 23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 25. The Court notes that the matter before the domestic judicial authorities was of some importance for the applicant. Every decision taken on the merits of the case was in the applicant's favour. The judgment of 24 July 2001 was quashed on a procedural ground only, namely, the court's failure to notify the defendant about the date of a hearing.", "The Court does not find that the applicant, although he did not attend some of the hearings, contributed to the length of the proceedings in a substantial way. In the Court's opinion, major delays were caused by the remittal of the case for a fresh consideration; the defendant's conduct, which largely remained unpunished by the judicial authorities; and by prolonged periods of inactivity in the cassation proceedings (eleven and fifteen months). 26. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above; Pavlyulynets v. Ukraine, no. 70767/01, 6 September 2005; and Siliny v. Ukraine, no.", "23926/02, 13 July 2006). 27. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 28.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 29. The applicant further complained that he had no effective remedies for his complaint concerning the excessive length of the proceedings. He relied on Article 13 of the Convention.", "30. The Government considered that Article 13 was not applicable to the circumstances of the case as the applicant had not made out an arguable claim under Article 6 § 1. 31. The Court refers to its findings in paragraphs 23 and 28 above and notes that this complaint is linked to the applicant's complaint under Article 6 § 1 and must therefore likewise be declared admissible. 32.", "The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Government did not name any such remedy available to the applicant. 33. 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 (see Efimenko v. Ukraine, no.", "55870/00, § 64, 18 July 2006). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 35.", "The applicant claimed 5,000 euros (EUR) in respect of pecuniary and 10,000 euros in respect of non-pecuniary damage. 36. The Government contested these claims. 37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 600 under that head. B. Costs and expenses 38. The applicant did not submit any claim under this head.", "The Court therefore makes no award. 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 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 600 (six hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 5 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF TKACHEVY v. RUSSIA (Application no. 35430/05) JUDGMENT STRASBOURG 14 February 2012 FINAL 14/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tkachevy 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 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35430/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Viktor Nikolayevich Tkachev and Mrs Elvira Eduardovna Tkacheva (“the applicants”), on 15 June 2005. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 18 May 2010 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 4. The applicants, spouses, were born in 1957 and 1966 respectively and live in Moscow. 5.", "At the time of the events they owned a flat at 9/12–1 Znamenka Street in Moscow, in the neighbourhood of the Moscow State Art Gallery of the People’s Artist of the USSR Alexander Shilov. The flat had six rooms and measured 121.8 m². It was occupied by the applicants, their two minor children, and a mother-in-law. A. The expansion of the gallery and eviction 6.", "In April 2001 the Moscow Government decided that for the purpose of the gallery’s reconstruction the applicants’ building was to be vacated and converted into non-residential premises (Decree 373-PP). The development and resettlement of the residents were to be financed by Tverskaya Finance B.V., a private Dutch company. Upon the project’s completion, 60% of the building was to go to Tverskaya Finance, and 40% to the Moscow Government. Insofar as relevant, Decree 373-PP read as follows: “For the purpose of an all-inclusive reconstruction of the territory adjacent to the [Gallery] and in accordance with the developed architectural planning concept, the Government of Moscow decrees: 1. To accept the proposal of the Moscow Committee of Architecture to include ... the building located at 9/12–1 Znamenka into the single investment project of building and reconstruction works at Znamenka.", "2. To take into account the agreement of the investor – Tverskaya Finance B.V. – to finance the building and reconstruction of the buildings. ... 4. To adopt an agreement that after the reconstruction would divide the non-residential premises at 9/12–1 Znamenka as follows: 60% to Tverskaya Finance B.V., 40% to the Department of State and Municipal Property of Moscow. 5.", "To take into account the investor’s agreement to finance the resettlement of tenants and owners from 9/12–1 Znamenka ... to own or acquired premises. ... 6.2. To complete the building and reconstruction works in the first quarter of 2006. ... 8. That the Prefect of the Central Administrative District together with the Department of Municipal Housing and Housing Policy of the Moscow Government should formalise the conversion of 9/12–1 Znamenka into non-residential premises.” 7.", "The applicants opposed this project and in May 2003 they challenged Decree 373-PP in a court. 8. In August 2003 the authorities requested the State Enterprise Moszhilniiproekt, a public surveying agency, to deliver a report on the building’s technical condition. The request was phrased to be “in execution of the assignment by the First Deputy of the prefect of the Central Administrative Circuit of Moscow on the subject of finding [the building] a dangerous structure”. Moszhilniiproekt found that the building was under the threat of collapse.", "9. In November 2003–February 2004 the Moscow Government offered the applicants to choose a replacement flat from a four-room flat of 149 m² at 77 Udaltsova Street, a four-room flat of 105 m² at 12 Tverskaya Street, a five-room flat of 125 m² at 9/6 Zamorenova Street, and a five-room flat of 112 m² at 39/6 Dolgorukovskaya Street. The applicants rejected these offers. 10. In April 2004 the Moscow Government classified the building as a dangerous structure and ordered its conversion into non-residential premises (Decree 669-RP).", "Insofar as relevant, Decree 669-RP read as follows: “[It is hereby ordered]: 1. To classify the residential building located at 9/12–1 Znamenka as a dangerous structure and subsequently rebuild it into non-living premises. 2. To take into account that 2.1. In accordance with [Decree 373-PP] the investor is Tverskaya Finance B.V. 2.2.", "Tverskaya Finance B.V. is the beneficiary of a lease ... of the land plot for the reconstruction and building of the complex of the buildings including 9/12–1 Znamenka. 3. To establish that the residents of the dangerous building are to be resettled to residential premises acquired at the investor’s expense. ... 7. That the Prefect of the Central Administrative District shall 7.1.", "Together with the Department of Housing Policy and Housing Stock of Moscow resettle the residents from the dangerous building at the investor’s expense and to the premises acquired by the investor in 2004. ... 7.4. Charge the transportation costs related to the resettlement to the investor.” 11. In October 2004 the applicants requested NPTs Rekonstruktsia, a private surveying agency, to deliver an alternative report on the building’s technical condition. Rekonstruktsia found that the building was safe and could be repaired without resettling the residents.", "12. On 1 October 2004 the Tverskoy District Court of Moscow found Decree 373-PP lawful because, among other things, the building had been classified dangerous. The court wrote: “The [applicants] affirm that the Decree transfers their property to Tverskaya Finance B.V. But this affirmation is wrong because the Decree merely grants to the investor the right to finance the building works, reconstruction, and restoration of the buildings, and to subsequently acquire a part in those buildings. ...", "There is no merit either in [the applicants’] argument that their building belongs to the cultural heritage, is a monument of history and culture, and hence cannot be reconstructed.... [The applicants] have provided no evidence that 9/12–1 Znamenka is in the State Register of cultural heritage and monuments. [The applicants] consider that their building is not dangerous and can be lived in. This argument is belied by the survey report of August 2003 by Moszhilniiproekt ... and by [Decree 669-RP]. [The applicants] consider that there had been no legal grounds for the conversion of their building into non-living premises. But it has been shown that the residence at 9/12–1 Znamenka has been found dangerous and unfit for permanent living.", "It is for this reason that the building has been converted into non-living premises.... [The applicants] also claim that [Decree 373-PP] violates their housing rights and deprives them of the flat they own. This claim is hollow. It is belied by the contents of the case file and, in the first place, by the Decree itself, because it contains no clause on dispossession.” On 12 January 2005 the Moscow City Court upheld that judgment. 13. Tverskaya Finance bought a flat at 26 Krasnoprudnaya Street and offered it to the applicants as replacement.", "The flat had six rooms and measured 131.1 m². The applicants rejected this offer, mainly because they did not wish to change the neighbourhood and because the new flat was, in their view, of a worse quality. In August–December 2004 Tverskaya Finance and the Moscow Government asked a court to evict the applicants. 14. On 26 January 2005 the Khamovnicheskiy District Court of Moscow evicted the applicants.", "The court found, among other things, that after the reconstruction the building would be used as non-residential premises, and that the replacement flat was larger and dearer. Despite the applicants’ objection, the court relied on a valuation report commissioned by Tverskaya Finance that evaluated Znamenka at RUB 7,556,856 and Krasnoprudnaya at RUB 10,311,148. The court wrote: “As the flat is [the applicants’] only residence, the replacement flat should be of equal quality. The court considers that a replacement flat ... is of equal quality if ... it is located within the borders of the same town and is of the same size or larger. The court considers that the flat to which the plaintiffs are asking to resettle [the applicants] meets these criteria fully.", "It is located within Moscow’s administrative border, and even in the same district where [the applicants’] family lives now. The flat meets sanitary and technical requirements, is fit for living, and has all comforts. Its size and price exceed the [applicants’] current flat. The court considers therefore that the [applicants’] resettlement to Krasnoprudnaya not only respects their rights and freedoms but also improves their living conditions. ...", "The fact that 9/12–1 Znamenka is destined to be rebuilt and not demolished cannot [prevent the eviction], because ... in future the building will be used for non-living purposes. The court ignores the [applicants’] argument that the resettlement will infringe the housing rights and interests of their children who go to a nearby school and will be unable to commute on the metro. At Krasnoprudnaya there are also secondary schools that the [applicants’] daughter will be able to attend. As to the son’s having to commute on the metro, the evidence submitted shows no medical contra-indications to it.” On 18 April 2005 the Moscow City Court upheld that judgment. 15.", "In June 2005 the applicants moved to 26 Krasnoprudnaya Street. 16. In March 2008 the Moscow Government granted the whole of the Znamenka building to Tverskaya Finance (Decree 221-PP). Insofar as relevant, Decree 221-PP read as follows: “For the purpose of the completion of the implementation of the investment building project, reconstruction and restoration of the buildings located at 9/12 Znamenka ... it is hereby ordered: 1. To extend for Tverskaya Finance B.V. the term of the building works, reconstruction and restoration of the buildings ... for not more than 18 months ... without penalties.", "2. To take into account the pledge of Tverskaya Finance B.V. to ... 2.4. Carry out emergency works and full restoration and adaptation of 9/12–1 Znamenka. 3. To take into account the fact that ... 3.3.", "In the course of the implementation of the investment project the investor has resettled the residents ... from 9/12–1 Znamenka.... Tverskaya Finance B.V. has received property rights to 1,324.1 m² of premises at 9/12–1 Znamenka, including 764 m² of residential premises and 560.1 m² of non-residential premises.... ... 6. To take into account the parties’ agreement to the following changes in the distribution of the property upon the project’s completion: ... 6.2. As regards the second part of the project the contractual distribution of property between the parties shall be as follows: – 100% of 9/12–1 Znamenka ... shall be transferred to the investor’s property.” 17. According to the applicants, the building has been rebuilt into a premium residential property. According to the Government, the construction is still underway, and the building will house commercial and administrative premises.", "18. The Government based this statement on information available from the website located at http://znamenka9.ru. At the time of the Court’s examination of the case, that website shows that 9/12–1 Znamenka is a block of flats offered for sale. The applicants’ former flat on the third floor appears to have been reduced to a flat of 85.8 m² (marked on the plan as “Flat F”). The website lauds the uniqueness and historicity of the neighbourhood, quotes poetry (“Неподражаемой России незаменимая земля” – “Inimitable Russia’s irreplaceable land”), and extols the sights of the nearby Cathedral of Christ the Saviour, Kremlin, Pashkov House, and Zamoskvorechye.", "B. Proceedings against the surveying agency 19. In October 2003 the first applicant requested a court to order Moszhilniiproekt to make available its survey report. From 2003 to 2006 different courts several times refused to examine this request due to the applicant’s failure to comply with technical formalities, to pay a court fee, and to respect jurisdiction. On 27 April 2006 the Moscow City Court finally rejected the request because it was aimed at discovery of exhibits used in the applicant’s other litigation and hence was not amenable to separate proceedings.", "C. Proceedings against the development contract 20. In January 2005 the first applicant requested the Khamovnicheskiy District Court to invalidate the contract between the gallery, Tverskaya Finance, and the Moscow Government concerning the Znamenka development. On 25 April 2006 the Moscow City Court refused to examine that request because the first applicant no longer lived in Znamenka and hence was not personally affected by the contract. II RELEVANT DOMESTIC LAW 21. Under section 35-3 of the Constitution, nobody can be deprived of his possessions save by a judicial decision.", "The compulsory taking of property for State needs is possible only on condition of an equivalent preliminary reimbursement. 22. Under section 49-3 of the Housing Code of 1983 in force at the material time, if a building containing privatised flats was to be demolished pursuant to applicable laws, the local authority or the demolishing enterprise was, with the evicted owners’ consent, to provide them with an equivalent residence or other compensation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 23. The applicants complained that the expropriation of their flat served no public interest, and that no adequate replacement was given. They referred to Articles 1 and 8 of the Convention, Article 1 of Protocol No. 1, and Article 2 of Protocol No. 4.", "The Court will examine this 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. Admissibility 24. The Government argued that this complaint was manifestly ill‑founded.", "25. First, as a matter of principle, the authorities had enjoyed a wide margin of appreciation in town planning. 26. Second, the eviction had served the public interest of safety, because the building had been under the threat of collapse. According to Moszhilniiproekt’s survey report, the building had been built before 1917 and had known no major repairs.", "Its wooden floor joists had been rotten and 70% worn out. Subfloor had partially collapsed. Wooden floors had been cracked, rotten, and 65% worn out. The basement and walls had lacked waterproofing. The walls had been damp.", "The front wall had had cracks under windows. 27. The building had been rebuilt into a business-centre, not a residence. 28. Third, the interference with the applicants’ possession had been proportionate because the applicants had received adequate and immediate compensation.", "The replacement flat had been located within the same administrative district of Moscow, had met sanitary requirements, and had been fit for living. It had been 8% larger and 37% dearer than the flat in Znamenka. Besides, the authorities had offered a choice of replacement flats. 29. Last, the eviction had been lawful because the domestic courts had upheld the decrees of the Moscow Government.", "The decrees had been accessible and adequately formulated. 30. The applicants maintained their complaint. First, there had been no genuine public interest of safety, because the decision to expropriate the building (Decree 373-PP) had come before the survey report. The Moscow Government had used the building as a payment for the reconstruction of the gallery by Tverskaya Finance.", "If the concern for safety had been genuine, the residents would have been allowed to move back in after the repairs. 31. Moszhilniipoekt’s report had been biased because it had been paid for by Tverskaya Finance. The alternative report had found the building safe. 32.", "Second, the interference had been disproportionate, because the replacement flat at 26 Krasnoprudnaya Street had been inadequate. Located far from Znamenka, it was no match to Znamenka’s cultural landscape with its proximity to the Kremlin and Russian capital’s heritage landmarks. The new environment had been close to busy railway stations, had suffered heavy road traffic and bad air. The new flat had had leaky windows, uneven floors, old wiring, cracked walls and ceiling, an unreliable lift, and an unsafe yard infested with rodents. The move to Krasnoprudnaya had been painful for the family because they had had to break established ties with doctors, schools, cultural activities, and parish.", "The other flats offered in replacement had been even worse. 33. Last, the interference had been unlawful because, contrary to the project’s declared goals, the building had remained a residence, flats in which had been put on sale. The project itself had been unlawful too, because Tverskaya Finance had been awarded the contract without public bidding, and because heritage preservation rules had banned large-scale construction inside the Kremlin’s conservation zone. 34.", "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.", "General principles 35. The Court reiterates that the international machinery of collective enforcement established by the Convention is subsidiary to the national systems safeguarding human rights. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention. (see the “Belgian Linguistic” case, 23 July 1968, § 10, Series A no.", "6). 36. In this vein, because of their direct knowledge of the society’s needs, the national authorities are better placed than the international judge to asses “the public interest” underlying an interference with possessions. It is thus for them to determine both the existence of a public problem warranting deprivation of property and the remedial action to be taken. 37.", "Furthermore, “public interest” is an extensive notion that involves political, economic, and social issues, opinions on which may differ widely. The Court finds it natural that the authorities should have a wide margin of appreciation in implementing social and economic policies, and in particular land development and town planning schemes (see Buckley v. the United Kingdom, 25 September 1996, § 75, Reports of Judgments and Decisions 1996‑IV; Vassallo v. Malta, no. 57862/09, § 36, 11 October 2011). It will therefore respect the authorities’ determination of “the public interest” unless that determination be manifestly without reasonable foundation. In other words, although the Court cannot substitute its own assessment for that of the national authorities, it is bound to review the contested measures under Article 1 of Protocol No.", "1 and, in so doing, to inquire into the facts with reference to which the national authorities acted (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). 2. Application of the general principles in the present case 38. It is not in dispute that the expropriation of the applicants’ flat amounted to an interference with their right to the peaceful enjoyment of their possessions.", "Accordingly, as they were deprived of their possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 what remains is to determine whether this was done “in the public interest and subject to the conditions provided for by law and by the general principles of international law”. 39. The Moscow Government justified the expropriation of the applicants’ property with the public interest of safety (see §§ 8, 10, 12 and 26 above). Whilst this interest is in itself legitimate, in the circumstances of the present case there is a number of inconsistencies that do not permit the conclusion that that interest was held genuinely.", "40. First, the decision to take the property (Decree 373-PP) forewent the survey report that found the property unsafe. Indeed, the report was commissioned only after the applicants had opposed the expropriation. 41. Second, when commissioning the report from Moszhilniiproekt the authorities effectively admitted that the First Deputy of the prefect of the Central Administrative Circuit had requested to classify the building as dangerous.", "It would therefore seem that the conclusion of the report had been predetermined. 42. Third, if the applicants’ eviction had been motivated only by concern for their safety, it would have been consistent to let them reoccupy the property after the necessary repairs. 43. Fourth, whereas under the original arrangement (Decree 373-PP) 40% of the reconstructed building was to go to the Moscow Government, in 2008 the whole of the building went to Tverskaya Finance (Decree 221-PP).", "The withdrawal of the authorities’ share in the building diminished the public element of the transaction, and it became in essence an alienation of property from one private party (the applicants) to another (Tverskaya Finance). 44. Last, as a reason for ordering the expropriation, the Khamovnicheskiy District Court cited an eventual conversion of the building into non-residential premises. The Court agrees that this aspect is relevant for the assessment of “the public interest” and will therefore investigate today’s fate of the building. 45.", "The parties argue about it. The Government state that the building has become an office space, without, however, explaining its public utility. The applicants insist that the building has become a luxury residence. 46. The Government rely on information taken from the Znamenka project’s online showcase located at http://znamenka9.ru.", "The Court is mindful of the inherent fluidity of online sources, but the Government apparently deem that website reliable, and according to RIPN, Russian domain name registry, the website belongs to Tverskaya Finance. Therefore, the Court will analyse its contents. 47. The website’s overall tone is commercial, it praises the benefits of owning a prestigious centrally located property. It leaves little doubt that 9/12–1 Znamenka is made up of flats for sale.", "The seller highlights the building’s proximity to cultural landmarks – the same argument that the Khamovnicheskiy District Court found immaterial when it decided that the flat at Krasnoprudnaya was an adequate replacement. The information from the website is confirmed by estate agents’ advertisements furnished by the applicants. 48. The Court therefore concludes that the building has become residential premises contrary to the project’s declared goals (see § 6 above). 49.", "The Court recalls that it has recently declared inadmissible an application that concerned a prima facie similar set of circumstances. In Sourlas v. Greece (no. 46745/07, dec. 17 February 2011) the applicant’s centrally located flat in Athens was taken for the purpose of building the new Acropolis Museum, and the applicant contested the valuation of the flat by the authorities. But unlike in the case in hand, in the Sourlas case the implied public interest underlying the expropriation – the preservation and display of the nation’s iconic cultural artefacts – was never questioned. 50.", "In view of the above considerations, the Court concludes that in the circumstances of the present case the public interest underlying the expropriation of the applicants’ flat was not clearly and convincingly shown (see, mutatis mutandis, Motais de Narbonne v. France, no. 48161/99, § 22, 2 July 2002). There has, accordingly, been a violation of Article 1 of Protocol No. 1. In these circumstances there is no need to examine whether the other requirements of the first paragraph of Article 1 of Protocol No.", "1 were fulfilled. II. ALLEGED VIOLATON OF ARTICLE 6 OF THE CONVENTION 51. The applicants complained under Article 6 of the Convention that the domestic courts were intrinsically biased in favour of the Moscow Government because the Government supported them financially. Insofar as relevant, Article 6 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.” 52.", "The Court notes that it has earlier rejected a similar complaint (see Finogenov and Others v. Russia (dec.), nos 18299/03 and 27311/03, § 243, 18 March 2010). 53. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 54.", "The first applicant complained under Articles 6 and 13 of the Convention about the domestic courts’ refusal to examine in substance his actions against the surveying agency and the development contract. 55. The Court considers that these two actions, although technically distinct, were aimed at the determination of the first applicant’s essential dispute – the one concerning the expropriation which the applicant had been able to plead before two levels of jurisdiction. 56. In these circumstances the Court considers that this complaint does not give rise to a separate issue and needs not to be examined.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 58. The applicants wished to have their flat in Znamenka returned. In the alternative, they claimed damage and costs.", "A. Damage 59. The applicants claimed pecuniary damage in the amount of 1,989,000 Euros (EUR). This amount included the sale price of a renovated flat at 9/12–1 Znamenka (EUR 1,988,000), commuting costs accrued over the five years following their forced removal, settling-in expenses, expenses related to the installation of a telephone line, and the cost of medicines consumed to relieve stress. 60.", "The Government contested that claim as unfounded. No property valuation had shown that Krasnoprudnaya had been cheaper than Znamenka. The applicants might not pretend to a renovated flat, because the flat that had been taken from them had been decrepit. Most of the applicants’ other alleged expenses had been unsupported by evidence. 61.", "In addition, each applicant claimed non-pecuniary damage in the amount of EUR 20,000 for the stress caused by their forced removal. 62. The Government contested that claim as excessive. 63. The Court notes that the applicants foremost wish to receive the expropriated flat back, and that the parties dispute the valuation of the properties.", "In these circumstances the Court considers that the question of pecuniary and non-pecuniary damage is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court). B. Costs and expenses 64. The applicants also claimed EUR 270 for the costs and expenses incurred before the domestic courts and the Court.", "65. The Government contested that claim as unsupported by evidence. 66. It is the Court’s practice to reimburse costs and expenses only if they are actual, necessary, and reasonable. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 24 for the proceedings before the Court.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares admissible the complaint concerning the expropriation of property and inadmissible the remainder of the application; 2. Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds that, as regards pecuniary and non-pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly (a) reserves this question in whole; (b) invites the Government and the applicants to submit, within three months from the date of notification of this judgment, their written observations on this question 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 it if need be; 4.", "Holds, as regards costs and expenses, (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 24 (twenty four Euros), plus any tax that may be chargeable to the applicants, to be converted into national currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for costs and expenses. Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrar President" ]
[ "SECOND SECTION CASE OF SAMY v. THE NETHERLANDS (Application no. 36499/97) JUDGMENT (Friendly settlement) STRASBOURG 18 June 2002 This judgment is final but it may be subject to editorial revision. In the case of Samy v. the Netherlands, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrGaukur Jörundsson,MrL. Loucaides,MrK. Jungwiert,MrV.", "Butkevych,MrsW. Thomassen,MrM. Ugrekhelidze, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 28 May 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 36499/97) against the Kingdom of the Netherlands 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 purported Algerian national, Ali Samy (“the applicant”), on 11 March 1997.", "2. The applicant was represented by Mr S.J. van Der Woude, a lawyer practising in Amsterdam. The Dutch Government (“the Government”) were represented by their Agent, Mrs J. Schukking, of the Netherlands Ministry of Foreign Affairs. 3.", "The applicant complained, inter alia, that one of his four requests for release from aliens' detention for expulsion purposes was not determined “speedily” as required by Article 5 § 4 of the Convention. 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, and was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). 5.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. 6. On 4 December 2001, having obtained the parties' observations, the Court declared admissible the complaint under Article 5 § 4 of the Convention in respect of one of the applicant's four requests for release. The applicant's other complaints were declared inadmissible.", "7. On 22 April 2002 and 2 May 2002 the Government and the applicant respectively submitted to the Court their agreed declarations on the terms of a friendly settlement of the case. THE FACTS 8. The applicant states that he is Ali Samy and that he is an Algerian national, born in 1968 in Algiers. He is currently living in the Netherlands.", "9. On 26 August 1996, the applicant was arrested and taken into detention on suspicion of theft. He was released on the same day. However, as it had appeared during the criminal investigation that he was likely to be an illegal alien, he was handed over to and, in accordance with Article 19 § 2 of the Aliens Act (Vreemdelingenwet), apprehended by the Aliens Department (Vreemdelingendienst) in order to verify his identity, nationality and residence status. 10.", "On 27 August 1996, in accordance with Article 26 § 1 of the Aliens Act, the State Secretary of Justice (Staatssecretaris van Justitie) ordered the applicant's placement in aliens' detention with a view to his expulsion (vreemdelingenbewaring) and, on the same day, issued an expulsion order. 11. The applicant's lawyer filed several unsucessful requests for the applicant's release from aliens' detention with the Hague Regional Court (arrondissementsrechtbank). In particular, a second request lodged on 29 November 1996 was rejected on 22 January 1997. 12.", "On 7 March 1997, the applicant was released from detention because there was no real prospect of expelling him at that time as his origins could not be established. 13. In a decision of 11 March 1997, the Hague Regional Court sitting in Amsterdam noted that the applicant had been released on 7 March 1997. The Regional Court found that the applicant's detention as of 27 February 1997 had not been lawful and awarded the applicant 1,200 Netherlands Guilders (544,54 euros) in compensation. The Regional Court also issued a costs order against the State Secretary of Justice.", "THE LAW 14. On 22 April 2002 the Court received the following declaration from the Government of the Netherlands: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of the Netherlands offer to pay 3,000 euros to Ali Samy. This sum is to cover any non-pecuniary damage as well as costs and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. The Government declare that the above settlement can in no way be interpreted as a recognition on its behalf that a violation of the provision of the Convention, invoked by the applicant, has occurred.", "The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 15. On 2 May 2002 the Court received the following declaration signed by the applicant's representative: “I note that the Government of the Netherlands are prepared to pay the sum of 3,000 euros covering non-pecuniary damage and costs to Ali Samy with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. I accept the proposal and waive any further claims against the Netherlands in respect of the facts of this application. I declare that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and the applicant have reached.", "I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court's judgment.” 16. 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). 17. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2. Takes note of the parties' undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 18 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF BEŞLEAGĂ AND VANKAY v. ROMANIA (Applications nos. 35723/03 and 45096/09) JUDGMENT STRASBOURG 21 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Beşleagă and Vankay v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President,Marko Bošnjak,Péter Paczolay, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 31 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the dates indicated in the appended table. 2.", "The applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 concerning the non-enforcement of domestic judgments were communicated to the Romanian Government (“the Government”). In application no. 45096/09 the applicant also raised other complaints under the provisions of the Convention. 3.", "On 8 February 2018 a committee of three judges of the Court adopted a judgment in a group of four cases which included the current two applications (Beșleagă and Others v. Romania, no. 35723/03 and 3 other applications). 4. On 7 June 2018 the same committee decided to reopen the proceedings in the current two applications following a request by the Government submitted on 8 February 2018. The parties were informed accordingly.", "THE FACTS 5. The list of applicants and the relevant details of the applications are set out in the appended table. A. Application no. 35723/03 6.", "On 25 September 2000 the Neamț County Court ordered a state‑owned company to pay the applicant due salary rights. 7. On 9 October 2001 the Roman District Court ordered a private person to reimburse a loan to the applicant. B. Application no.", "45096/09 8. On 14 November 2008 the Brașov County Court ordered the municipality of Brașov to leave a plot of land in the applicant’s full property and possession. 9. On 3 April 2009 the applicant signed a report, drafted on the occasion of the compulsory enforcement of the above judgment, which attested to the restoration of his possession over the land in dispute by placement of metal bars on the free area and by tracing a line with white paint over the area occupied by roads and bridge pillars belonging to the municipality. 10.", "On 18 July 2008 the applicant contracted a loan of 250,000 euros (EUR) from a bank, with the plot of land used as guarantee. 11. On 22 August 2011 the bank sold the land at a public auction for EUR 325,000, since the applicant had failed to repay the loan within the set deadline. In accordance with domestic law, the remaining amount after the recovery of the debt must be returned to the debtor. THE LAW I. JOINDER OF THE APPLICATIONS 12.", "Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 13. Both applicants complain of the non-enforcement of the judgments given in their favour.", "They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 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.", "Application no. 35723/03 14. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “trial” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).", "15. In the leading case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania, nos. 2699/03 and 43597/07, 7 January 2014, the Court already found a violation in respect of issues similar to those in the present case. 16. The Court further notes that the judgment of 25 September 2000 ordered a state-owned company to pay the applicant due salary rights.", "The Court therefore considers that the judgment in question constitutes “possession” within the meaning of Article 1 of Protocol No. 1. 17. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the judgment in the applicant’s favour.", "18. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 19. The applicant also complained about the non-enforcement of the final judgment of 9 October 2001 ordering a private person to reimburse a loan to him.", "20. The Court notes that the applicant failed to make appropriate use of the available domestic legal avenues and to comply with all the procedural and substantial requirements of the domestic law, namely he failed to challenge the liquidator’s final report and he did not lodge a complaint against the bailiff for an alleged refusal to assist him with the enforcement (see Ciprova v. the Czech Republic (dec.), no. 33273/03, 22 March 2005). 21. In view of the above, the Court finds 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.", "B. Application no. 45096/09 22. Having examined all the material before it, the Court considers that the applicant’s complaint about the non-enforcement of the judgment of 14 November 2008 is inadmissible for the reasons stated below. 23.", "In particular, in view of the report which the applicant signed on 3 April 2009 and the subsequent developments (see paragraphs 10 and 11 above) the Court considers that the applicant’s possession over the land in question had been in fact restored on the date of the above-mentioned report. The Court therefore notes that the judgment in the applicant’s favour was enforced within 2 months. Taking into account the conduct of the applicant as well as the conduct of the authorities, the Court concludes that the period in question is not excessive and thus does not raise an arguable claim under the Convention (see, for example, Şerbănescu v. Romania (dec.), no. 43638/10, §§ 9-10, 1 December 2016). 24.", "The applicant also raised other complaints under various articles of the Convention. 25. The Court has examined them 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. 26. In view of the above, the Court finds that this 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 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 28. The Court notes that the domestic judgment of 25 September 2000 in application no. 35723/03 has remained unenforced to date.", "The State’s obligation to enforce this judgment is not in dispute. Therefore, the Court considers that the respondent State has an outstanding obligation to secure, by appropriate means, enforcement of the above-mentioned judgment in the applicant’s favour (see Pășcoi and Others v. Romania, nos. 8675/06 and 7 others, § 18, 7 January 2016). 29. The Court further notes that in application 35723/03 the applicant failed to submit his just satisfaction claims in accordance with Rule 60 of the Rules of Court.", "Accordingly, the Court does not award any sum as just satisfaction. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the non-enforcement of the judgment of 25 September 2000 of the Neamț County Court admissible, and the remainder of the application no. 35723/03, as well as application no. 45096/09, inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 concerning the non-enforcement of the domestic judgment of 25 September 2000 in application no. 35723/03; 3. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the outstanding judgment of 25 September 2000 of the Neamț County Court in application no. 35723/03.", "Done in English, and notified in writing on 21 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtGeorges Ravarani Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions) No. Application no. Date of introduction Applicant’s name Date of birth Relevant domestic decision Start date of non-enforcement period End date of non-enforcement period Length of enforcement proceedings 35723/03 29/08/2003 Ioan Beşleagă 06/09/1944 Neamț County Court, 25/09/2000 Roman District Court, 05/06/2001 25/09/2000 09/10/2001 pending More than 17 years and 2 months and 17 days pending More than 16 years and 2 months and 3 days 45096/09 03/06/2009 Ladislau Vankay 19/06/1973 represented by Dan Iosif, a lawyer practising in Brașov Brașov District Court, 14/11/2008 03/02/2009 03/04/2009 2 months" ]
[ "FIRST SECTION CASE OF FOKIN v. RUSSIA (Application no. 75893/01) JUDGMENT STRASBOURG 18 September 2008 FINAL 18/12/2008 This judgment may be subject to editorial revision. In the case of Fokin 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 28 August 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75893/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Pavlovich Fokin (“the applicant”), on 6 August 2001.", "2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 15 December 2004 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 1961 and lives in Insar, Republic of Mordoviya. 5. On 20 April 1999 the applicant was dismissed from his job as a security guard in a private company.", "He sued his former employer for reinstatement, payment of wage arrears and compensation for non-pecuniary damage. 6. On 19 November 1999 the Insarskiy District Court of the Republic of Mordoviya granted his claim in part and ordered his reinstatement in the job. This judgment was reversed on appeal by the Supreme Court of the Republic of Mordoviya, which remitted the case for fresh examination by the first-instance court. 7.", "On 9 January 2001 the Insarskiy District Court of the Republic of Mordoviya found the applicant’s dismissal justified and rejected the claims in full. 8. The applicant filed his statement of appeal on 18 January 2001. According to him, in the following months he regularly enquired with the court secretariat about the state of proceedings in his case but was informed each time that the date of the appeal hearing had not yet been fixed. 9.", "According to the Government, on 1 February 2001 the applicant was notified about the pending appeal hearing in his case. The applicant contested that he had received any notification. 10. In June 2001 the applicant went to the court in person and found out that the appeal hearing in his case had already taken place on 13 February 2001. He learned that his claim had been dismissed at the final instance.", "11. After that, on 14 June 2001 the applicant received the appeal decision of the Supreme Court of the Republic of Mordoviya, which, inter alia, read as follows: “At the [appeal] hearing Mr Fokin maintained his claims and asked the court to grant them”. The decision also indicated that the other party to the proceedings was present at the hearing and maintained its objections to the claim. II. RELEVANT DOMESTIC LAW 12.", "The RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time): Article 106. Court summonses “Parties and their representatives are to be notified with court summonses of the date and place of a court hearing or certain procedural actions ... A summons is to be served on parties and their representatives in such a way that they have enough time to appear at a hearing and prepare their case ... Where necessary, parties and their representatives ... may be summonsed by a phone call or a telegram.” Article 108. Service of summonses “Summonses are to be sent by mail or by courier. The time when a summons was served on an addressee is to be recorded on the summons and its copy, which is to be returned to the court ...” Article 109. Receipt of summonses “A summons is to be served on a person against his/her signature made on a copy of the summons, which is to be returned to the court ...” Article 144.", "Court hearing “A civil case is to be heard in a court session with mandatory notification to all parties to the case ...” Article 157. Consequences of a party’s or representative’s failureto attend a court hearing “If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. The applicant complained that the examination of the appeal without giving him an effective opportunity to attend the hearing had violated his right to a fair hearing under Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 14. 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 15. The Government argued that the applicant had been duly notified of the appeal hearing on 1 February 2001.", "They contended that the usual practice in the town of Insara was to send notification by a court courier, who would report to the court President any difficulty in finding the person concerned. The Government provided the Court with a copy of the notification letter and contended that the case file did not contain any report by the courier of a failure to deliver the notification. In any event, the applicant’s presence had not been necessary, as his written submissions before the appeal court reiterated the arguments that had already been examined at the first-instance hearing, at which he had presented them in person. 16. The applicant contested the Government’s allegations.", "He claimed that he had not received the notification although the courier, had there been one, would have had no trouble finding him at his address. 17. The Court notes that the notification letter allegedly delivered to the applicant contains his correct address and states that the hearing before the appeal instance was scheduled for 9 a.m. on 13 February 2001. However, the Government did not present any evidence, such as an acknowledgment of receipt, showing that it had reached the applicant, and that it had done so in good time. Having regard to the provisions of the Russian law on service of courts summonses (see paragraph 12 above), the Court considers that the Government should have been in possession of such evidence, or at least reasons should be given why the court courier could not have had the applicant sign for the receipt of the letter.", "The failure on the Government’s part to submit evidence without a satisfactory explanation gives rise to the drawing of inferences as to the ill-foundedness of their allegations. In these circumstances, the Court is not persuaded that the domestic authorities had notified the applicant of the appeal hearing in such a way as to provide him with an opportunity to attend it and present his case. 18. The Court reiterates that it has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Yakovlev v. Russia, no. 72701/01, §§ 19 et seq., 15 March 2005; Groshev v. Russia, no.", "69889/01, §§ 27 et seq., 20 October 2005; Mokrushina v. Russia, no. 23377/02, §§ 20 et seq., 5 October 2006; and Prokopenko v. Russia, no. 8630/03, §§ 15 et seq., 3 May 2007). 19. Having examined the materials submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "The Court has established that owing to the missing notification the applicant was deprived of the opportunity to attend the appeal hearing. The Court also notes that there is nothing in the appeal judgment to suggest that the appeal court examined the question whether the applicant had been duly summonsed and, if he had not, whether the examination of the appeal should have been adjourned. On the contrary, it erroneously stated in the decision that the applicant was in fact present at the hearing. 20. It follows that there was a violation of the applicant’s right to a fair hearing enshrined in Article 6 § 1 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 21. Relying on Articles 3, 14 and 17 of the Convention, the applicant complained that his dismissal from the job constituted inhuman and degrading treatment. Under Article 10 of the Convention he complained that he had been unable to express his arguments at a public hearing before the appeal instance. He also complained under Article 34 of the Convention that the authorities’ failure to notify him of the appeal proceedings interfered with his right of individual petition.", "22. Having regard to all the material in its possession, and in so far as these complaints fall within its competence ratione materiae, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 24. The applicant did not submit a claim for just satisfaction within the time-limit indicated by the Court. 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 domestic authorities’ failure to apprise the applicant of 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. Done in English, and notified in writing on 18 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIRST SECTION CASE OF RAZZAKOV v. RUSSIA (Application no. 57519/09) JUDGMENT STRASBOURG 5 February 2015 FINAL 05/05/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Razzakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro, President,Elisabeth Steiner,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 13 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "57519/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbekistani national, Mr Rashid Shamuradovich Razzakov (“the applicant”), on 14 October 2009. 2. The applicant was represented by Ms O. Gnezdilova, a lawyer practising in Voronezh. 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 unlawfully deprived of his liberty and ill-treated in police custody in order to make him confess to a crime, and that no effective investigation into his complaints had been carried out. 4. On 31 August 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1971. He is a migrant worker who arrived in Voronezh in 2002 and has been working on construction sites and in repairs. He lives in the village of Mikhnevo, Nizhnedevitskiy district of Voronezh region. A. The applicant’s alleged ill-treatment by the police 1.", "The applicant’s apprehension 6. At about 2 p.m. on 26 April 2009 the applicant arrived at a meeting place as requested by his employer, Mr G., who was acting on police instructions. Three police officers in plain clothes knocked the applicant to the ground, handcuffed him and pushed him into their unmarked car. They did not explain who they were, where they were taking him or why. According to G., who witnessed the scene, they were armed with pistols.", "2. Events at the Zheleznodorozhniy ROVD of Voronezh 7. The police officers took the applicant to the Zheleznodorozhniy district police department of Voronezh (отдел внутренних дел Железнодорожного района г. Воронежа, “the Zheleznodorozhniy ROVD”), where he was led to an office on the upper floor. Two police officers in uniforms demanded that he confess to a murder. He refused to do so and was punched.", "8. The uniformed police officers and those in plain clothes subjected the applicant to various acts of physical violence. They removed the handcuffs from him and bound his hands with scotch tape instead. He was seated on the floor with his arms around his bended knees. A metal bar was passed under his knees.", "The police officers lifted him and hung him on the bar, the ends of which were put on two tables. The police officers continued punching him in the head and the rest of his body. The pressure caused by the bar behind his knees was such that it prevented his blood from circulating. The police officers hit him several times on the head with an empty glass beer bottle. The applicant felt unwell.", "He was taken off the bar and untied for a short time. The police officers then hung him again in the same way and attached wires from a special device to his ears. They subjected him to electric shocks by rotating a handle on the device. The applicant felt sharp pain. 9.", "Then four men in masks and rubber gloves entered the office. They undressed the applicant completely, including his underwear, tied his arms and legs with his own shirt and leather belt, and hung him with a rope on the door of the office, head down. They showed him a syringe containing a yellowy fluid and threatened him with an intravenous injection. One of them tied a rope to his penis and pulled it, thereby opening and shutting the door on which the applicant was hanging. They squeezed his testicles.", "Several times the applicant said that he agreed to confess to the murder, but his answers did not satisfy the policemen. At some point they loosened the rope and he fell onto his head. 10. The treatment described above continued until the next morning, when the applicant was placed in a cell for administrative detainees at the same police station. A young man who was detained in that cell advised him to do as the police had requested.", "Two or three hours later the applicant was taken to an office and given some food. His questioning by the police officers continued. He was warned that he would not be able to support two more days of such treatment. He then confessed to the murder of a certain D., as dictated by them. In the evening he was again placed in the cell for administrative detainees, where he spent the night.", "11. On 28 April 2009 police officers B. and E.S. took the applicant in handcuffs to the Zheleznodorozhniy district investigation department of the investigative committee at the Voronezh regional prosecutor’s office (Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при прокуратуре РФ по Воронежской области, “the district investigative committee”) for questioning by an investigator as a witness in a criminal case concerning the murder of D. During the questioning the applicant remained in handcuffs. He was requested to sign a paper in Russian, which he could not read. He was then transferred back to the cell at the Zheleznodorozhniy ROVD.", "12. At the end of the day the applicant was taken out of the cell and given back his papers and mobile phone. He was asked to sign a document which he could not read and was released. The applicant’s landlady, Ms S., who had been phoning the police in vain for the past two days to find out about his whereabouts, saw him arrive home at about 8 p.m. with a swollen eye, bruises on his wrists, a swollen leg, a lesion on his right ear resembling a burn mark and suffering from sharp pains in his chest. 13.", "No criminal proceedings were brought against the applicant. B. Medical records of the applicant’s injuries 14. The following morning, on 29 April 2009, accompanied by his landlady, the applicant was examined at the emergency unit of town hospital no. 1 and received a medical certificate diagnosing him with bruising of the soft tissue of his face and his rib cage.", "15. On 30 April 2009 the applicant was examined at the Voronezh Regional Forensic Medical Bureau. He described his ill-treatment at the Zheleznodorozhniy ROVD. According to the expert’s forensic medical report (акт судебно‑медицинского освидетельствования), the applicant had bruises each measuring 3 to 4 centimetres above and below his right eye and on his left eyelid, a bruise on his right cheek, bruises on his chest (two bruises measuring 3 to 4 cm and a bruise of 1 to 2 cm), a bruise of 3.5 to 4.5 cm on his scrotum, abrasions on his forearms and right wrist, a bruise of 4 to 5 cm on his left forearm, and bruises measuring 1 to 2 cm and 2 to 3 cm behind his right and left knees respectively. 16.", "On 14, 15 and 18 May 2009 the applicant was examined at town clinic no. 3. On the basis of an X‑ray examination he was diagnosed with a fracture of the ninth rib on the right side. 17. According to a report prepared as a result of a forensic medical examination of the applicant carried out on 19 and 20 October 2009, his injuries could have been inflicted on 26-28 April 2009.", "C. Administrative proceedings against the applicant 18. According to police records, at 9.15 p.m. on 27 April 2009 police officer M. arrested the applicant, who had allegedly used obscene language in the street, and at 9.30 p.m. brought him to the Zheleznodorozhniy ROVD. The applicant was found guilty of petty hooliganism and sentenced to a 500 Russian rouble (RUB) administrative fine. He was allegedly released at 12 noon on 28 April 2009. 19.", "On 16 July 2009 the applicant was given access to documents concerning the administrative proceedings against him. On 29 July 2009 the Zheleznodorozhniy District Court of Voronezh examined an appeal lodged by the applicant against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 to give him an administrative fine. The District Court quashed the decision and terminated the administrative proceedings against the applicant for lack of an administrative offence. D. Criminal proceedings into the applicant’s alleged ill-treatment 1. Refusal to institute criminal proceedings 20.", "According to the applicant, on 7 May 2009 the deputy head of the district investigative committee refused to receive his complaint of ill‑treatment by the police and allegedly threatened to call the migration service and have him deported from the country. 21. On 14 May 2009 the applicant’s counsel lodged a complaint of ill‑treatment with the district investigative committee, describing the ill‑treatment in detail. She supported the allegations by submitting the medical certificate of 29 April 2009 (see paragraph 14 above) and the forensic medical report of 30 April 2009 (see paragraph 15 above). She requested that criminal proceedings be brought against the police officers concerned for abuse of power (Article 286 of the Criminal Code) and torture (Article 117 of the Criminal Code).", "She asked for specific investigative measures to be carried out, in particular an opportunity for the applicant to identify the police officers who had been on duty on 26‑28 April 2009 and a forensic medical expert examination of the applicant with a view to establishing the possible cause and time of the infliction of the injuries. 22. An investigator of the district investigative committee carried out a pre‑investigation inquiry. He interviewed the applicant, who gave a detailed account of his alleged ill-treatment (see paragraphs 6-12 above), Ms S., who saw the applicant arrive home with the injuries after his alleged ill‑treatment (see paragraph 12 above), and police officer B., who stated that on 26 April 2009 he had stayed home and that on 27-28 April 2009 he had performed duties at the Zheleznodorozhniy ROVD which had had nothing to do with the applicant. The investigator also interviewed police officers Sh.", "and E., who stated that on 28 April 2009 they had held a “conversation” (беседа) with the applicant in one of their offices, at the request of the head of the criminal unit of the Zheleznodorozhniy ROVD, about the applicant’s involvement in the murder of D. After the “conversation” they had taken the applicant, at the request of their supervisor, to investigator G. of the district investigative department. Both of them denied any violent behaviour on their part. The investigator also obtained the police records, according to which the applicant had been brought to the Zheleznodorozhniy ROVD at 9.30 p.m. on 27 April 2009 (see paragraph 18 above). 23. On 25 May 2009 the investigator refused to institute criminal proceedings concerning the applicant’s complaint for lack of elements of a crime in the acts of police officers Sh.", "and E., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). 24. The applicant appealed against the decision to the Voronezh Zheleznodorozhniy District Court under Article 125 of the CCrP. On 18 June 2009 the District Court terminated the proceedings because the previous day a deputy head of the district investigative committee had quashed the investigator’s decision as unlawful and unfounded. In particular, he had ordered that the head of the criminal police unit of the Zheleznodorozhniy ROVD, S., be interviewed in the course of an additional preliminary inquiry.", "25. The investigator’s subsequent decisions of 27 June and 6 August 2009 that no criminal proceedings would be instituted on the applicant’s allegations were likewise revoked on the same grounds by the district investigative committee (on 27 July and 1 September 2009). Court appeals lodged by the applicant were not examined for the same reason (the Zheleznodorozhniy District Court’s decisions of 28 July and 1 September 2009). In his decision of 1 September 2009 the head of the district investigative committee ordered that police officers M. and Se., who had brought the administrative proceedings against the applicant, be interviewed. He also noted that the identity of all the police officers present during the “conversation” with the applicant at the ROVD had not been established.", "2. Institution of criminal proceedings 26. On 11 September 2009 the district investigative committee again refused to institute criminal proceedings for lack of elements of a crime in the acts of police officers Sh., E., S. and R. On 8 October 2009 the investigative committee at the Voronezh regional prosecutor’s office (следственное управление Следственного комитета при прокуратуре РФ по Воронежской области, “the regional investigative committee”) set aside as unlawful and unfounded the district investigative committee’s refusal. It noted, in particular, that the applicant’s allegations were supported by the forensic medical report of 30 April 2009 (see paragraph 15 above), the explanations of Ms S. (see paragraph 12 above) and the police records certifying the applicant’s presence at the police station at the relevant time (see paragraph 18 above). It concluded that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code (see paragraph 42 below) committed by unidentified police officers at the Zheleznodorozhniy ROVD, and opened criminal proceedings.", "27. On 16 October 2009 the applicant was given victim status in the criminal proceedings. 3. Suspension of criminal proceedings 28. On 8 April 2010 the criminal proceedings were suspended for failure to establish the identity of a person to be charged, pursuant to Article 208 § 1 (1) of the CCrP.", "29. The proceedings were subsequently reopened and suspended again on the same grounds several times, the last time on 25 November 2010. The investigator established in that decision that at about 2 p.m. on 26 April 2009 three unidentified police officers had taken the applicant to the Zheleznodorozhniy ROVD by force and in handcuffs. In an office on the upper floor of the ROVD two other unidentified police officers in uniforms had demanded that the applicant confess to a murder. He had refused and had been beaten up by the officers who had taken him in.", "During the period from 26 to 28 April 2009 both uniformed and plain-clothes police officers had subjected the applicant to various acts of physical violence, in particular punching him and hitting him with a glass bottle on his head and other parts of his body, subjecting him to electric shocks via wires attached to his ears and genitalia, and to other forms of torture, as a result of which he had confessed to the murder of D. 30. During the preliminary investigation the regional investigative committee had questioned witnesses, including police officers who had been on duty at the ROVD during the relevant period, the head of the criminal police unit and his deputies, the police officers of the criminal investigation unit, witnesses to the applicant’s apprehension, persons detained in the cells for administrative offenders during the period concerned and the doctor who had examined the applicant on 29 April 2009. It examined the offices where the ill‑treatment could have taken place and held identification parades to enable the applicant to identify the alleged perpetrators from among a number of the police officers who had been working at the Zheleznodorozhniy ROVD. While a number of those identification parades had not resulted in an identification (for example, police officer D.M. who was found to have been using a phone number from which calls to the applicant’s employer G. had been registered (see paragraph 6 above) had not been identified by the applicant), the applicant had identified police officers B. and S. as participants in his ill-treatment.", "The investigator found their identification insufficient for the prosecution in view of its alleged inconsistency with the applicant’s statements describing the perpetrators and in view of their alibi, as neither of them had according to their statements allegedly been present at the ROVD during the period concerned. 31. On 9 March 2011 the first deputy to the Voronezh regional prosecutor dismissed an appeal lodged by the applicant against the investigator’s decision of 25 November 2010 (see paragraph 29 above). On 19 April 2011 judge G. of the Leninskiy District Court dismissed a further appeal lodged by the applicant under Article 125 of the CCrP. That decision was upheld by the Voronezh Regional Court on 14 June 2011.", "In particular, the applicant, represented by his counsel, argued in the court proceedings that the identity of the alleged perpetrators had been established since he had identified police officers B. and S.; hence, it had been wrong to suspend the proceedings for failure to identify the alleged offenders. The courts rejected his submissions and found the investigator’s decision lawful and well-reasoned. 32. Some of the applicant’s allegations – notably that the administrative charge of petty hooliganism against him had been trumped up and that police officer B. had unlawfully handcuffed him on 28 April 2008 when taking him for questioning to the investigator in the murder case – were the subject of separate proceedings. The district investigative committee’s initial refusal to open a criminal case was followed by the regional investigative committee’s decision of 5 December 2011 to open criminal proceedings concerning the alleged forgery of administrative‑case documents under Article 292 § 2 of the Criminal Code and their subsequent suspension.", "On 7 September 2012 the district investigative committee’s initial refusal to open a criminal case into the applicant’s handcuffing was revoked and an additional preliminary inquiry was ordered. 4. Request for transfer of the criminal case to a division for the investigation of crimes committed by police officers 33. The applicant’s counsel requested the transfer of the criminal cases concerning the applicant’s ill-treatment to a new division at the Central Federal District investigative department, which had been created pursuant to order no. 20 of the chairman of the investigative committee to investigate crimes committed by police officers (see paragraph 43 below).", "34. On 31 August 2012 the regional investigative committee replied to the applicant that firstly, it was not competent to take such a decision as, under Article 152 § 6 of the CCrP, a criminal case could only be transferred for investigation to a superior investigative authority by a reasoned decision of the head of that authority, and that secondly, order no. 20 did not provide for obligatory transfer of cases of this kind to the new investigative divisions. 35. On 28 September 2012 the central office of the investigative committee of the Russian Federation sent the applicant’s transfer request back to the regional investigative committee, which, in a letter of 6 November 2012, gave the applicant the same reply as before (see paragraph 34 above).", "E. Civil proceedings against the State 36. The applicant brought civil proceedings for damages sustained as a result of his unlawful arrest, detention at the police station, torture, handcuffing and unlawful questioning about his involvement in a criminal offence. He claimed RUB 1,200,000 in respect of non-pecuniary damage and RUB 1,435 in respect of pecuniary damage. Judge Sh. of the Leninskiy District Court of Voronezh held a hearing with the participation of the applicant, his lawyer and his interpreter, representatives of the Ministry of Finance, the Voronezh regional department of finance and budget policy and the Voronezh regional police department acting as a third party, and a prosecutor.", "37. In its judgment of 29 November 2011 the District Court noted that the investigative measures conducted by the investigative committee after the opening of a criminal case had allowed it to establish the fact of the applicant’s unlawful arrest, handcuffing and detention during the period from 26 to 28 April 2009 in the offices of police officers of the criminal investigation unit (сотрудников уголовного розыска) of the Zheleznodorozhniy ROVD and in a cell for administrative detainees, as well as the fact that he had been subjected to physical violence with the aim of obtaining his confession to a murder and had had bodily injuries inflicted on him on the premises of the Zheleznodorozhniy ROVD (see paragraph 29 above). As a result of the physical and psychological violence, the applicant had confessed to a murder. He had not been detained as a suspect, nor charged with, or found guilty of, any crime. 38.", "On the basis of the preliminary investigation, which had established the elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code, the Zheleznodorozhniy District Court’s judgment of 29 July 2009 terminating the administrative proceedings against the applicant for lack of an administrative offence (see paragraph 19 above) and the evidence submitted by the applicant in the civil proceedings, the District Court found it established that the applicant had been subjected to the above‑mentioned unlawful acts by police officers, despite the failure to identify them all. Of those identified, the District Court noted M., G. and Ch., who had signed the records and the decision concerning the administrative offence allegedly committed by the applicant. The physical violence to which the applicant had been subjected had not been made necessary by his conduct, had diminished his human dignity and had as such been a violation of the law. The District Court awarded the applicant RUB 840,000 in respect of non‑pecuniary damage and RUB 835 in respect of pecuniary damage, to be paid by the federal and regional treasuries, and rejected the remainder of his claims. 39.", "According to the internet site of the Voronezh Regional Court, on 22 March 2012 it examined the case following appeals lodged by the respondent authorities. No appeal against the Leninskiy District Court’s judgment had been lodged by the applicant, who was represented before the appeal court by his counsel. The Regional Court rejected the appeals and upheld the judgment. F. Ministry of the Interior 40. A complaint about the applicant’s ill-treatment was also lodged with the Voronezh regional police department, which informed the applicant’s counsel on 23 July 2009 that police officer M. had been disciplined for his failure to identify an alleged witness to the applicant’s administrative offence.", "41. Police officer S., identified by the applicant as one of those who had participated in his ill‑treatment (see paragraph 30 above), was promoted on 1 October 2010 as head of a district police department. II. RELEVANT DOMESTIC LAW AND PRACTICE 42. Article 286 § 3 of the Criminal Code of the Russian Federation provides that the actions of a public official which clearly exceed his authority and entail a substantial violation of an individual’s rights and lawful interests, committed with violence or the threat of violence (Article 286 § 3 (a)) or with the use of arms or special devices (Article 286 § 3 (b)), are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of up to three years.", "43. On 18 April 2012 the chairman of the investigative committee of the Russian Federation issued order no. 20. He ordered that new divisions be created in order to ensure effective investigation of crimes committed by police officers and other law‑enforcement agents. Those divisions were to be created within the general investigative department of the investigative committee of the Russian Federation (“отдел по расследованию преступлений, совершенных должностными лицами правоохранительных органов в Главном следственном управлении Следственного Комитета Российской Федерации”) with six staff, as well as within the investigative departments of each federal district (with three staff in each division) and within the investigative departments of Moscow, Moscow region and St Petersburg (with ten staff in each division).", "44. Article 125 of the Code of Criminal Procedure of the Russian Federation provides for judicial review of decisions, acts or inaction on the part of an inquiry officer, investigator or head of an investigation unit which are liable to infringe the constitutional rights or freedoms. The judge is empowered to examine the lawfulness and reasonableness of the decision, act or inaction and to issue one of the following decisions: (i) to declare the impugned decision, act or inaction unlawful or unfounded and to order the authority concerned to rectify the breach; or (ii) to dismiss the complaint. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 45.", "The applicant complained under Article 3 of the Convention that he had been tortured in police custody in order to make him confess to a criminal offence. He further complained under Article 13 of the Convention that no effective investigation had been conducted into his ill-treatment. 46. The Court will examine both aspects of the complaint under 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.” 47. The Government acknowledged a violation of Article 3.", "48. The applicant submitted that although he had not formally been given the status of a suspect or an accused, he had been questioned about his alleged involvement in the murder of D. He had not been afforded any of the rights which a suspect or an accused would have had, such as the right to a lawyer and an interpreter. Nor was he informed of his right not to give self-incriminating statements. The applicant contended that in view of the initial refusal to open a criminal case, which had resulted in the late commencement of the investigation, and the subsequent refusal to prosecute police officers B. and S. identified by him as accomplices in his ill‑treatment, there had been no effective investigation into his complaint. The police officers who had subjected him to torture had continued to serve in the police and S. had even been promoted (see paragraph 41 above).", "A. Admissibility 49. The Court notes that in the domestic civil proceedings the applicant was awarded compensation for the damage which he had sustained as a result of, inter alia, his ill‑treatment (see paragraphs 36-39 above). It further notes that the Government’s acknowledgment of a violation of Article 3 covers both aspects of the applicant’s complaint, notably that he was subjected to ill‑treatment at the hands of the police and that no effective investigation was carried out into his ill‑treatment. 50. The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention.", "It notes with satisfaction that the domestic civil court duly examined the applicant’s case, established the State’s liability for his ill-treatment and awarded him compensation. However, in cases of wilful ill-treatment by State agents in breach of Article 3, the Court has repeatedly found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).", "In cases of wilful ill-treatment by State agents, a breach of Article 3 cannot be remedied only by an award of compensation to the victim because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008, and Gäfgen, cited above, § 119). 51. In the absence of an effective investigation the applicant can still claim to be a victim of a violation of Article 3 in respect of his alleged ill‑treatment. 52.", "The Court notes further that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant’s ill-treatment in police custody 53.", "In view of the Government’s acknowledgment of a violation of Article 3 in the present case and the domestic authorities’ decisions in the criminal and civil proceedings, the Court finds the applicant’s allegations as to what happened to him on 26-28 April 2009 established (see paragraphs 6‑13, 29 and 37 above). 54. The Court notes that the ill-treatment to which the police officers subjected the applicant during his arbitrary detention in their offices at the police station included punching him, hitting him on the head with a glass bottle, undressing him, tying him up and hanging him in painful positions from a metal bar and a door, head down and naked, pulling his penis, squeezing his testicles, threatening him with an intravenous injection and subjecting him to electric shocks. To have subjected the applicant to electric shocks, tied him up and hung him in painful positions required a certain preparation and knowledge on the part of the police officers and the use of special devices. The applicant endured the sequence of these abhorrent acts of physical and psychological violence during a prolonged period of time, between being taken to the police station sometime in the afternoon of 26 April 2009 and the following morning, that is, for at least twelve hours.", "The ill‑treatment left the applicant with numerous bruises on his body and a broken rib (see paragraphs 14-17 above). The police officers acted intentionally with the aim of making him confess to the murder of D. The applicant – who was unlawfully deprived of his liberty and denied all the rights of a person detained on suspicion of having committed a criminal offence (see paragraph 37 above), including access to a lawyer and an interpreter, notification of his detention to a third party or access to a doctor – was entirely vulnerable vis‑à‑vis the police officers. The fact that he was a foreigner and his command of Russian was limited could only have further exacerbated his vulnerability. 55. The Court finds that the treatment to which the applicant was subjected at the hands of the police amounted to torture (see Samoylov v. Russia, no.", "64398/01, §§ 52-54, 2 October 2008; Valyayev v. Russia, no. 22150/04, § 57, 14 February 2012; Tangiyev v. Russia, no. 27610/05, § 56, 11 December 2012; and Aleksandr Novoselov v. Russia, no. 33954/05, §§ 65-66, 28 November 2013). 56.", "There has accordingly been a violation of Article 3 under its substantive head. 2. Obligation to conduct an effective investigation 57. The applicant made a credible assertion that he had suffered treatment proscribed under Article 3 at the hands of the police. His assertion was supported by forensic medical evidence and confirmed by other evidence that emerged as a result of the very first steps undertaken by the investigative committee (see paragraphs 21-22 above).", "The State therefore had an obligation to carry out an effective official investigation into his allegation. 58. The Government have acknowledged that no such investigation took place. The Court, as with regard to the violation of Article 3 in its substantive aspect, has no reason to hold otherwise. 59.", "Indeed, the investigative authority did not open a criminal case until 8 October 2009, that is, five months after the applicant’s alleged ill‑treatment had been brought to its attention. It then instituted proceedings on the grounds that it had sufficient data disclosing elements of a crime committed by unidentified police officers at the Zheleznodorozhniy ROVD, and commenced an investigation (see paragraph 26 above). 60. The Court found in Lyapin v. Russia that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a “pre-investigation inquiry” alone not being capable of meeting the requirements of effective investigation under Article 3. It held that the mere fact of the investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill‑treatment in police custody was indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no.", "46956/09, §§ 128-40, 24 July 2014). 61. The above findings are fully applicable to the present case. On the facts, the Court notes that the data which the investigative committee assessed as sufficient for opening a criminal case on 8 October 2009 were in the committee’s hands shortly after the applicant’s ill-treatment (see paragraph 21-22 above). Hence, nothing can explain the five months’ delay in commencing the criminal investigation into the applicant’s complaint.", "The Court considers that such a delay could not but have had a significant adverse impact on the investigation, considerably undermining the investigative authority’s ability to secure the evidence concerning the alleged ill‑treatment (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001; Kopylov v. Russia, no. 3933/04, § 137, 29 July 2010; Eldar Imanov and Azhdar Imanov v. Russia, no. 6887/02, § 99, 16 December 2010; and Shishkin v. Russia, no. 18280/04, § 100, 7 July 2011).", "In particular, the significant lapse of time must have diminished the applicant’s ability to identify the alleged perpetrators or made the possibility of identification unrealistic (see paragraph 30 above). The Court notes that the judicial remedy under Article 125 of the Code of Criminal Procedure was inaccessible to the applicant for his complaints against the investigative committee’s refusal to open a criminal case. The investigative committee repeatedly revoked its decisions before the court hearings had taken place, only to issue new such decisions thereafter (see paragraphs 24-25 above). 62. The Court would also note that, despite the creation of a new division at the Central Federal District investigative department in order to ensure effective investigation of crimes committed by police officers, the applicant’s request for transfer of the criminal case concerning his ill‑treatment to that division was rejected on the grounds that there was no obligation to transfer cases of this kind (see paragraphs 33-35 and 43 above).", "63. The body of evidence collected during the preliminary investigation, after the criminal case concerning the applicant’s alleged ill-treatment had been opened, laid a basis for the civil court to establish the facts of the incident to the extent required for a finding of the State’s liability for the acts of ill‑treatment committed by its police officers and for an award of compensation to the applicant for the harm suffered by him (see paragraphs 37 and 38 above). As regards individual liability, the investigative committee considered that evidence insufficient for the prosecution of the two police officers identified by the applicant and suspended the investigation for failure to establish the identity of the alleged perpetrators. It appears that in doing so the investigative committee had unreservedly relied on the statements of the police officers who had denied their involvement in the applicant’s ill-treatment (see paragraph 30 above). The material of the case file does not suggest that the investigation’s conclusions were based on a thorough, objective and impartial analysis of all relevant elements (see, mutatis mutandis, Kolevi v. Bulgaria, no.", "1108/02, § 192, 5 November 2009). 64. The Court finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the applicant’s credible assertions of serious ill‑treatment at the hands of the police disclosing elements of a criminal offence, as well as the way the investigation was conducted thereafter, show that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998-VIII). They thus failed in their obligation to conduct an effective investigation into the applicant’s ill‑treatment in police custody.", "65. Accordingly, there has been a violation of Article 3 of the Convention under its procedural head. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 66. The applicant complained that police officers had arbitrarily deprived him of his liberty and that his detention had been partly unrecorded and partly under the guise of administrative detention on the trumped‑up charge of petty hooliganism.", "His complaint falls to be examined under Article 5 § 1 of the Convention, which reads 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: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties’ submissions 67. The Government acknowledged that the applicant’s rights guaranteed by Article 5 of the Convention had been violated.", "68. The applicant submitted that it was common practice to refuse official acknowledgment of detention. A person was detained unofficially until he or she “voluntarily” wrote or signed a “confession statement” (явка с повинной) in the course of a “conversation” (беседа). The term “invited for a conversation” was widely used not only by law-enforcement officers but also by the courts, whereas it actually meant “brought in for questioning as a suspect”. Such practice and the use of formal and informal terminology by the law-enforcement and judicial authorities led to the deprivation of rights guaranteed to persons suspected of having committed a criminal offence.", "Persons who came to a police station “voluntarily” for a “conversation” were not registered in the police station records. In the majority of cases it was precisely during such unacknowledged detention that persons were subjected to ill-treatment in order to force them to give a “confession statement”. Even where a “confession statement” was not used as evidence, the law‑enforcement authorities were still interested in obtaining it in order to receive information about the details of a crime which would enable them to acquire other evidence in support of the prosecution. 69. The applicant also submitted that the administrative proceedings against him had been brought in order to “cover up” his unlawful detention.", "B. The Court’s assessment Admissibility 70. As the Court has already reiterated above, it falls first to the national authorities to redress any alleged violation of the Convention. It observes that the complaint now before it was examined in domestic civil proceedings and that the applicant was awarded compensation for the damage which he had sustained as a result of, inter alia, his unlawful detention (see paragraphs 36-39 above). The Court will therefore examine whether, for the purposes of Article 34 of the Convention, the applicant can still claim to be a “victim” of the alleged violation of his rights secured by Article 5 § 1 of the Convention.", "In this connection, it 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, Sergey Vasilyev v. Russia, no. 33023/07, § 45, 17 October 2013). 71. In its judgment of 29 November 2011 the Leninskiy District Court found that the applicant had been unlawfully deprived of his liberty by police officers from 26 to 28 April 2009. It referred, inter alia, to the Zheleznodorozhniy District Court’s judgment of 29 July 2009 terminating the administrative proceedings against the applicant for lack of an administrative offence (see paragraph 19 above).", "The national authorities can therefore be said to have acknowledged in substance (the domestic courts) and expressly (the Government) a violation of the applicant’s rights under Article 5 § 1 of the Convention. 72. The Leninskiy District Court awarded the applicant RUB 840,000 (approximately 20,000 euros) for the damage which he had sustained as a result of, inter alia, his unlawful detention. On 22 March 2012 the Voronezh Regional Court upheld the Leninskiy District Court’s judgment following the examination of the appeals lodged by the respondent authorities. No appeal was lodged against the District Court’s judgment by the applicant (see paragraph 39 above).", "It can therefore be presumed that he was satisfied with the amount of compensation awarded by the District Court. In these circumstances, there are no grounds for the Court to verify whether the sum awarded was reasonable in comparison with awards made by the Court in similar cases (see Kopylov, cited above, § 144). It considers that the compensation in the circumstances of the present case amounted to appropriate and sufficient redress for the alleged violation of Article 5 § 1. 73. It follows that the applicant can no longer claim to be a victim of a violation of Article 5 § 1.", "This complaint is therefore inadmissible and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75.", "The applicant submitted that he had sustained considerable non‑pecuniary damage as a result of his unlawful detention, torture and ill‑treatment, the initial refusal to open a criminal case into his allegations and the refusal to bring charges against the police officers he had identified. He noted that the amount of compensation claimed by him before the Leninskiy District Court for the damage which he had sustained as a result of his unlawful detention and torture was reasonable and equitable. He however relied on the Court in the determination of the amount of just satisfaction. 76. The Government did not comment.", "77. In paragraph 51 above the Court found that the applicant can still claim to be a victim of a violation of Article 3 in respect of his alleged ill‑treatment in view of the authorities’ failure to conduct an effective investigation. It further found a violation of Article 3 under its substantive head (see paragraph 56 above) and under its procedural head (see paragraph 65 above). Making its assessment on an equitable basis, and taking into account the amount awarded by the domestic courts, the Court awards the applicant 20,000 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 78. The applicant claimed 144,360 Russian roubles (RUB) (approximately EUR 3,675) for the legal costs and translation and interpretation expenses incurred in the domestic proceedings and RUB 112,000 (approximately EUR 2,850) for legal costs and translation expenses incurred before the Court. 79. The Government did not comment. 80.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that as regards the costs and expenses incurred in the domestic proceedings, the sum of RUB 51,200 was at the applicant’s expense and the remaining sum of RUB 93,160 was paid by the non‑governmental organisation, the Civic Assistance Committee (“the CAC”). The documents in the Court’s possession do not attest to the applicant’s obligation to reimburse the sum paid by the CAC. Having regard to the violation of Article 3 found in the present case and the above criteria, the Court rejects the claim for reimbursement of the costs and expenses in the domestic proceedings paid by the CAC and considers it reasonable to award the applicant the sum of EUR 1,300 for costs and expenses in the domestic proceedings and EUR 2,000 for the proceedings before the Court, together with any tax that may be chargeable to the applicant. The sum of EUR 3,270 is to be paid directly to the applicant’s representative, Ms Gnezdilova, and the remaining EUR 30 to the applicant, as was requested by him.", "C. Default interest 81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its substantive head in that the applicant was subjected to torture; 3.", "Holds that there has been a violation of Article 3 of the Convention under its procedural head; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, of which the sum of EUR 3,270 (three thousand two hundred and seventy euros) is to be paid directly into the bank account of the applicant’s representative Ms Gnezdilova and the remaining sum of EUR 30 (thirty euros) is to be paid 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 5 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle BerroRegistrarPresident" ]
[ "FIFTH SECTION CASE OF BLANUTSA v. UKRAINE (Application no. 35274/03) JUDGMENT STRASBOURG 20 September 2007 FINAL 20/12/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Blanutsa v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrV.", "Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 28 August 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35274/03) 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 Aleksandr Semyonovich Blanutsa (“the applicant”), on 3 October 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.", "3. On 11 May 2006 the Court decided to communicate the complaint concerning the non-enforcement of the judgment in the applicant's favour to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1937 and lives in the city of Mykolayiv. 1. Non-enforcement of the judgment given in the applicant's favour 5. The applicant is a former employee of the State-owned enterprise “Mashproekt” (hereinafter “MP”). In June 1999 staff of this enterprise refused to issue upon the applicant's request a certificate about his work and salary, which he required for the re-calculation of his retirement pension.", "6. On 14 December 1999 the Leninsky District Court of Mykolayiv (hereinafter “the District Court”) ordered MP to provide the applicant with the requested certificate. In particular, the court ordered MP to certify that as of 30 March 1978 the applicant worked as the head of one of MP's departments. This judgment became final on 19 January 2000. 7.", "On 24 February 2000 the Leninsky Bailiffs' Office of Mykolayiv (hereinafter “the Bailiffs”) instituted the enforcement proceedings. On 29 March 2000 the proceedings were terminated. 8. On 2 August 2000 the District Court ordered the Bailiffs to resume the enforcement proceedings. 9.", "On 23 August 2002 the Bailiffs terminated the enforcement proceedings as the director of MP had sent a letter to the applicant. 10. In September 2002 the applicant lodged an administrative complaint against this decision. 11. On 18 January 2005 the District Court quashed the Bailiffs' decision of 23 August 2002 and ordered resumption of the enforcement proceedings.", "12. On 30 May 2005 the enforcement proceedings were resumed. 13. On 18 November 2005 the enforcement proceedings were terminated as on 17 November 2005 MP provided the applicant with the certificate. 14.", "On 13 November 2006 the Head of the Bailiffs quashed the decision of 18 November 2005 on the ground that the certificate provided to the applicant did not comply with the requirements ordered by the judgment of 14 December 1999. 15. The judgment of 14 December 1999 remains unenforced. 2. Other proceedings instituted by the applicant against MP 16.", "In January 2002 the applicant lodged an administrative complaint against the director of MP seeking to be admitted to his work position. 17. On 8 February 2002 the District Court left the applicant's claim without consideration as the issue should be examined within the civil proceedings. 18. On 3 April 2002 the Mykolayiv Regional Court of Appeal (hereinafter “the Court of Appeal”) quashed this ruling and remitted the case for a fresh consideration.", "19. On 17 February 2003 the District Court left the applicant's administrative complaint without consideration and explained that the applicant should lodge a claim within the civil proceedings. 20. On 23 April 2003 and 5 July 2004 the Court of Appeal and the Supreme Court, respectively, upheld this ruling. II.", "RELEVANT DOMESTIC LAW 21. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW I. SCOPE OF THE CASE 22.", "The Court notes that after the communication of the case to the respondent Government the applicant introduced new complaints concerning other proceedings against the staff of MP. 23. In the Court's view, the new complaints are not an elaboration of the applicant's original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. The applicant complained about the infringement of Article 6 § 1 of the Convention caused by the lengthy non-enforcement the judgment of 14 December 1999 given in his favour. The above provision provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26. In their observations, the Government submitted that the Bailiffs took all necessary measures aimed at enforcement of the judgment at issue and contended that there had been no violation of Article 6 § 1 of the Convention in the applicant's respect.", "27. The applicant disagreed. 28. The Court notes that the judgment given in the applicant's favour remains unenforced for seven years and eighth month. 29.", "The Court observes that in November 2005, i.e. five years and eleven months after the judgment of 14 December 1999 was given, the administration of MP did provide the applicant with the certificate. However, finding that this certificate did not comply with the said judgment, the Head of the Bailiffs resumed the enforcement proceedings. The Court further notes that the measures adopted by the Bailiffs in the course of the enforcement proceedings and referred to by the Government appeared ineffective. 30.", "The Court recalls that it has already found violation of Article 6 § 1 of the Convention in a number of similar cases (see Romashov, cited above, §§ 42-46, and Voytenko v. Ukraine, no. 18966/02, §§ 53-55, 29 June 2004). 31. 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. 32.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. The applicant further complained under Article 6 § 1 of the Convention about the unfair outcome of the proceedings instituted by him in January 2002. The applicant further complained under Article 14 of the Convention about discrimination.", "34. However, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 35. It follows that these parts of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed EUR 87,000 in respect of pecuniary and EUR 80,000 in respect of non-pecuniary damage. 38.", "The Government maintained that the applicant's claims were exorbitant and non-substantiated. 39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. At the same time, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Metaxas v. Greece, no. 8415/02, § 35, 27 May 2004 and Iatridis v. Greece (just satisfaction) [GC], no.", "31107/96, § 32, ECHR 2000‑XI). Therefore, the Court concludes that the State's outstanding obligation to enforce the judgment given in the applicant's favour is not in dispute. 40. As to the remainder of the applicant's claim for just satisfaction, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2000 (two thousand euros) in respect of non-pecuniary damage. B.", "Costs and expenses 41. The applicant failed to submit any claim; the Court therefore makes no award. 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 non-enforcement of the judgment in the applicant's favour admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, is to fulfil the judgment of 14 December 1999 given by the Leninsky District Court of Mykolayiv in the applicant's favour as well as to pay the applicant EUR 2000 (two thousand euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 20 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident" ]
[ "FIRST SECTION CASE OF PRIDATCHENKO AND OTHERS v. RUSSIA (Applications nos. 2191/03, 3104/03, 16094/03, 24486/03) JUDGMENT STRASBOURG 21 June 2007 FINAL 21/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pridatchenko and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrA. Kovler,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 31 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos. 2191/03, 3104/03, 16094/03, 24486/03) 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 four Russian nationals, Mr Aleksandr Grigoryevich Pridatchenko, Mr Sergey Aleksandrovich Manatov, Mr Andrey Vladimirovich Sychev, and Mr Aleksey Sergeyevich Frolov (“the applicants”), on 25 August 2001, 20 November 2002, 26 April 2003, and 26 June 2003 respectively. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicants alleged violations of Article 6 § 1 and Article 1 of Protocol No. 1 in that the respondent State failed to enforce final judgments in their favour. 4. On 25 November 2003 the Court decided to communicate the applications to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as their admissibility. 5. The applicants and the Government each filed observations on the admissibility and merits (Rule 54A § 1 of the Rules of Court). 6. On 31 May 2007 the Chamber decided to join the proceedings in the four applications (Rule 42 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. At the time of the described events Mr Pridatchenko (born in 1965), Mr Sychev (born in 1970), and Mr Frolov (born in 1969) were active military officers. Mr Manatov (born in 1970) was a retired military officer. On different dates they sued their actual or former employers, respective military units, in courts.", "The applicants claimed payment of their salaries, various service-related benefits due to them, provision of free housing, compensation of travel expenses, compensation of damages, etc. In all cases the courts ruled in their favour (at least in part of their claims) making monetary awards. However, for some time the judgments in their favour remained unenforced. A. Mr Pridatchenko 8. On 16 November 2001 the Sertolovo Garrison Military Court granted in part the applicant's claims concerning free housing due to him under the military service contract.", "The court also awarded the applicant 2,015 Russian roubles (RUR) for legal costs. That judgment was not appealed against and became final on 27 November 2001. 9. On 26 November 2001 the Sertolovo Garrison Military Court granted the applicant's claims concerning the amount of compensation of his travel expenses awarding him arrears in the amount of RUR 93,731.70, plus RUR 15 for legal costs. That judgment was not appealed against and became final on 13 December 2001.", "10. On 8 February 2002 the Sertolovo Garrison Military Court at the applicant's request held unlawful the refusal to dismiss the applicant from military service and awarded him RUR 2,015 for legal costs. That judgment was not appealed against and became final on 19 February 2002. 11. On 8 February 2002 the court issued a writ of execution on the basis of the judgment of 26 November 2001.", "The applicant forwarded it with accompanying documents to the State treasury office of the Leningrad Region. On 16 July 2002 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt. The applicant was advised to address the writ of execution to the head office of the Ministry of Finance in Moscow, which he did on 23 August 2002. However, the judgment remained unexecuted.", "12. On 2 September 2002 the court issued two writs of execution on the basis of the judgments of 16 November 2001 and 8 February 2002 (concerning the legal costs awarded to the applicant). The applicant forwarded them with accompanying documents to the State treasury office of the Leningrad Region. On 10 September 2002 the treasury office returned the unexecuted writs to the applicant referring to the lack of funds on the debtor's account. The applicant was advised to address the writs to the head office of the Ministry of Finance, which he did on 12 September 2002.", "However, the writs remained unexecuted. 13. On 28 April 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 93,746.70 in the applicant's name with reference to the writ of execution issued on 8 February 2002 on the basis of the judgment of 26 November 2001. 14. On 23 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 16 November 2001.", "15. On 29 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 8 February 2002. 16. According to the applicant, the aforementioned amounts were transferred to his account on 10 January 2004. He submitted copies of banking receipts as evidence in that respect.", "B. Mr Manatov 17. On 8 October 2001 the Kurtamysh District Court of the Kurgan Region granted the claims awarding him RUR 33,210 of salary arrears. The judgment was not appealed against and became final on 19 October 2001. 18. On 13 December 2001 the court issued a writ of execution.", "The applicant sent it to the bailiff's office. On 28 February 2002 the bailiff's office returned the unexecuted writ to the applicant and advised him to forward it to the Moscow City Specialised Branch of the State treasury. 19. On 27 April 2002 the forenamed branch of the State treasury returned the unexecuted writ to the applicant and explained that it was not responsible for financial obligations of the debtor military unit, apparently in accordance with a territorial jurisdiction principle. 20.", "It appears that the judgment of the Kurtamysh District Court of the Kurgan Region of 8 October 2001 has not yet been executed. C. Mr Sychev 21. On 23 April 2002 the Far-East Command Military Court by the final decision awarded the applicant RUR 4,000 for non-pecuniary damages caused by the refusal to grant the applicant annual leave. 22. On 18 May 2002 the court issued a writ of execution on the basis of the judgment of 23 April 2002.", "The applicant forwarded it with accompanying documents to the treasury office of Belogorsk town. On 14 June 2002 the writ was returned to the applicant unexecuted. The Belogorsk town treasury office advised the applicant that it was not competent to deal with such requests. 23. On an unspecified date in 2002 the applicant sued his military unit for the refusal to send him for a medical examination, whereas his state of health was deteriorating.", "He claimed non-pecuniary damages in that respect. On 5 July 2002 the Belogorsk Garrison Military Court granted the applicant's claims awarding him RUR 5,000 for non-pecuniary damages, plus RUR 10 for legal costs. The judgment was not appealed against and became final on 19 July 2002. On 7 March 2003 the court issued a writ of execution on the basis of the judgment of 5 July 2002. 24.", "On an unspecified date in 2003 the applicant sent both the writs of 18 May 2002 and 7 March 2003 to the local bailiff's office and to the town treasury office. On 11 April 2003 the Belogorsk town treasury office paid the applicant RUR 1,000 on account of the judgment of 5 July 2002. On the same date they informed the applicant that the debtor had no money for paying off the rest of the judgment debt; the applicant was advised to address himself to the head office of the Ministry of Finance. On 23 April 2003 the bailiff's office returned both writs unexecuted and advised the applicant to forward them to the treasury office. 25.", "On an unspecified date in February 2004 the judgments of 23 April 2002 and 5 July 2002 were enforced in full. D. Mr Frolov 26. On 29 August 2001 the Petrozavodsk Garrison Military Court granted the applicant's claims concerning compensation of his travel expenses, and awarded him arrears in the amount of RUR 74,360.70. It appears that the judgment was not appealed against and became final. 27.", "However, for some time the judgment of 29 August 2001 remained unexecuted. Referring to that fact the applicant brought proceedings requesting indexation of the judicial award due to him. 28. On 3 February 2003 the Petrozavodsk Garrison Military Court granted the applicant's claims and awarded him damages caused by non-enforcement of the judgment of 29 August 2001 in the amount of RUR 30,629.91 and RUR 1,030 for legal costs. That judgment was not appealed against and became final on 14 February 2003.", "29. On 20 March 2003 a writ of execution was issued. The applicant forwarded it with accompanying documents to the State treasury office of the Republic of Karelia. On 1 April 2003 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt.", "The applicant was advised to send the writ of execution to the head office of the Ministry of Finance, which he did on 4 April 2003. However, the judgment of 3 February 2003 remained unexecuted. 30. On 9 October 2003 the judgment of 29 August 2001 was enforced in full. The applicant informed the Court about this fact; however, he maintained his complaints about the non-enforcement of the judgment of 3 February 2003.", "31. On 16 February 2004 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 31,659.91 in the applicant's name with reference to the writ of execution of 20 March 2003 relating to the judgment of 3 February 2003. 32. According to the applicant, the aforementioned amount was transferred to his bank account on 7 April 2004. He submitted a copy of a banking receipt as evidence in that respect.", "II. RELEVANT DOMESTIC LAW A. Enforcement of judgments against budget-funded institutions 33. The Russian Law on Enforcement Proceedings (no. 119-ФЗ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1).", "Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of them are not considered to be the enforcement authorities (Section 5). 34. Section 110 of the Law on Federal Budget for the Year 2001 (no. 150-ФЗ of 27 December 2000) provided that writs of execution issued against the treasury of the Russian Federation were to be sent for execution to the Ministry of Finance of the Russian Federation and were to be executed in accordance with the procedure established by the Russian Government. A similar provision was included in Section 128 of the Law on Federal Budget for the Year 2002.", "However, Section 122 of the Law on Federal Budget for the Year 2003 (no. 176-ФЗ of 24 December 2002) established, in addition to the similar requirement that writs of execution were to be submitted to the Ministry of Finance, that the court bailiffs could not enforce judgments against the Russian Federation. 35. On 22 February 2001 the Russian Government approved “Rules on recovery of funds due on the basis of the writs of execution issued by the courts on account of monetary obligations of the recipients of federal budget funds” (“the Rules”). Sections 2 and 3 of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account.", "The federal treasury office must grant the recovery within three working days in the part not exceeding the balance of the account (Section 5). Should the balance of the account be insufficient for a full recovery, the writ of execution must be returned to the creditor who can then apply to the Ministry of Finance to recover the outstanding amount from the debtor's funding entity (Section 6). 36. On 9 September 2002 the Russian Government adopted Decree no. 666 which enacted the “Rules of Execution by the Ministry of Finance of court judgments against the Treasury of the Russian Federation arising from the claims for damages caused by unlawful acts or omissions of the State authorities or State officials”.", "The procedure of execution of such judgments provided by the Rules of 2002 was essentially the same as provided by the Rules of 22 February 2001 cited above. 37. On 19 July 2001 the Supreme Court of the Russian Federation delivered judgment no. ГКПИ 2001-864 concerning the lawfulness of certain provisions of the Rules. In particular, the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body, pursuant to Section 5 of the Law on Enforcement Proceedings.", "In subsequent judgment no. ГКПИ 2001-1345 of 22 October 2001 the court clarified its position as follows: “The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions, rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds... The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision...” 38. In judgments nos. ГКПИ 2001-1790 and 2002-139 of 27 February 2002 the Supreme Court of the Russian Federation confirmed that neither the Rules, nor the Laws on Federal Budgets for 2001 and 2002 prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in the Law on Enforcement Proceedings, the Law on Court Bailiffs and the Code of Civil Procedure.", "Finally, the Supreme Court again upheld this position in judgment no. ГКПИ 2001-1482 of 28 March 2002. 39. On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 ruled that the Rules, adopted by Decree no.", "666 of 9 September 2002, concerned the voluntary execution of court decisions against the Federal treasury and did not prevent the creditor from seeking enforcement through the court bailiffs. B. Military courts 40. The functioning of military courts is regulated by the Constitution, the Law on Judicial System of 31 December 1996, the Law on Military Courts of 23 June 1999. Military courts belong to the judicial system of the Russian Federation, they are courts of general jurisdiction exercising judicial power in the armed forces.", "military courts are established or dissolved by a federal law. Military courts are organised in the places of stationing of military units. Military courts administer justice on behalf of the Russian Federation examining cases in their jurisdiction by way of civil, administrative and criminal proceedings. In particular, military courts examine complaints of military personnel against acts or omissions of military officials or military command. Such cases are examined pursuant to the provisions of the Code of Civil Proceedings.", "Military courts administer justice independently subject only to the Constitution, federal constitutional laws and federal laws. The judges of the military courts are appointed by the President and should have a military rank, in addition to a law degree and necessary qualifications. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 41.", "The applicants complained that the lengthy non-payment of the sums awarded to them by the domestic courts breached their “right to a court” and the right to peaceful enjoyment of their possessions. Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, relied on by the applicants, insofar as relevant, read as follows: Article 6 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Parties' submissions 42. The Government contested the applicants' arguments. According to them, the judgments in favour of Mr Pridatchenko and Mr Frolov were fully enforced when the amounts due to them were allocated from the State budget. Thus, the judgments in favour of Mr Pridatchenko were enforced in April and September 2003.", "The judgment in favour of Mr Frolov had been enforced on 16 February 2004. On that ground the Government concluded that the applicants' rights under the Convention had not been violated. 43. As regards Mr Manatov and Mr Sychev, the Government claimed that they had not complied with the domestic formalities. Thus, Mr Manatov failed to forward the writ of execution to the Ministry of Finance.", "Mr Sychev did not submit to the Ministry of Finance the necessary application form with his banking information and the writ of execution, as required by Decree no. 666. As a result, the judgments in their favour could not be enforced. 44. Mr Pridatchenko and Mr Frolov maintained their submissions.", "Mr Pridatchenko insisted that the judgments had been executed on 10 January 2004, when the amounts due had been credited to his banking account. Mr Frolov indicated that the judgment had been executed on 7 April 2004. In their view, the delays in the execution of the judgments were unlawful and unjustified. As regards Mr Manatov and Mr Sychev, they simply maintained their initial arguments. B. Admissibility 45.", "The Court notes that at the moment of the events the applicants (except for Mr Manatov) were active military officers, and their disputes concerned different conditions of their employment. Until recently, employment disputes between the State and its military personnel were not, as a rule, regarded as “civil” within the meaning of Article 6 § 1 of the Convention, and thus fell outside of the Court's competence ratione materiae (see Pellegrin v. France [GC], no. 28541/95, §§ 65-67, ECHR 1999-VIII; see also Kanayev v. Russia, no. 43726/02, § 16, 27 July 2006). 46.", "However, in a recent judgment Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, 19 April 2007 the Grand Chamber developed the existing case-law proposing a new criteria of applicability of Article 6 to such disputes. Henceforth, Article 6 under its “civil” head shall be applicable to all disputes involving civil servants, unless (a) the national law expressly excludes access to a court for the post of category of staff in question, and (b) this exclusion is justified on objective grounds in the State's interest. The Court further emphasised that “there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question”. 47.", "Turning to the present case the Court notes that the applicants' claims were accepted, examined, and partially granted by the domestic courts following ordinary rules of civil procedure. It is true that the cases of Mr Pridatchenko, Mr Sychev and Mr Frolov were examined by military courts, i.e. the courts composed of military personnel and attached not to a particular administrative territorial unit, but to a garrison. However, nothing suggests that the military courts are not “tribunals” within the meaning of Article 6. Therefore, the applicants, despite their special status, were not excluded by the domestic law from the “access to a court” within the meaning of Article 6.", "Basing on the test developed in the case of Vilho Eskelinen and Others, the Court concludes that Article 6 is applicable to the domestic proceedings at issue. 48. The Court notes that the Government did not put forward any formal objection concerning the admissibility of the present four applications. The Court considers, in the light of the parties' submissions, that the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about delays in the enforcement of the court judgments in the applicants' favour raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. C. Merits 1. General principles 49. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect.", "However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III, and Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). 50. Further, the Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No.", "1 if it is sufficiently established to be enforceable – for example, by virtue of a court judgment (see Burdov v. Russia, cited above, § 28, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). As the Court held in a number of previous cases, the impossibility for a successful litigant to have a judgment in his favour fully enforced, which persisted for a relatively long period of time, constitutes an interference with his right to the peaceful enjoyment of his possessions. 2. Application to the present case 51.", "In their initial applications the above applicants complained about the non-payment of the amounts awarded to them by the respective military courts. As regards Mr Manatov, it appears that the court judgment in his favour remains unexecuted to date. The Court notes, at the same time, that the judgments in respect of Mr Pridatchenko, Mr Frolov and Mr Sychev had been finally enforced, although with certain delays. However, in the Court's opinion, those three applicants can still claim to be victims under Article 6 § 1 or Article 1 of Protocol No. 1 to the Convention: the Court has always regarded a delayed execution of a final court judgement of pecuniary nature as an interference per se, irrespectively of whether or not the judgment has been finally enforced.", "(a) As regards Mr Pridatchenko and Mr Frolov 52. As regards Mr Pridatchenko and Mr Frolov, the parties' submissions as to the exact dates of execution of the judgments differ substantially. The Government asserted that the judgments had been fully enforced on the dates of allocation of the amounts due to the applicants from the State budget. The applicants insisted that the judgments had been enforced when the money had been credited to their bank accounts. 53.", "In the view of the Court, the very fact of allocation of the budgetary funds in the applicants' names did not provide them with an opportunity to freely dispose of the amounts due to them. The applicants could profit from the judicial awards only when the money was transferred to their respective bank accounts. Accordingly, the Court accepts the applicants' assertion of the delays in the enforcement of the judgments, and notes that, as regards Mr Pridatchenko, such delays amounted to two years, one month and thirteen days as regards the judgment of 16 November 2001; two years and twenty-eight days as regards the judgment of 26 November 2001; and one year, ten months and twenty-one days as regards the judgment of 8 February 2002. As to Mr Frolov, the Court notes that the judgment of 3 February 2003, which was at the heart of the applicant's complaints, was enforced with a delay of one year, one month and twenty-two days. 54.", "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, §§ 34 et seq. ; see also Malinovskiy v. Russia, no. 41302/02, §§ 35 et seq. ; Gizzatova v. Russia, no.", "5124/03, §§ 19 et seq., 13 January 2005; Petrushko v. Russia, cited above, §§ 23 et seq. ; Wasserman v. Russia, no. 15021/02, §§ 35 et seq., 18 November 2004). The Court observes that the Government have not advanced a plausible justification for the delays occurred in the cases of the above two applicants. Considering the length of the periods of non-enforcement of court judgments in cases of Mr Pridatchenko and Mr Frolov, and having examined all relevant circumstances, the Court does not see any reason to depart from its previous case-law and concludes that the delayed execution of the judgments in favour of Mr Pridatchenko and Mr Frolov constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention. (b) As regards Mr Manatov 55. The Government claimed that the judgment in favour of Mr Manatov was not enforced because he had failed to follow a proper procedure. The Court notes that in order to obtain the execution of the judgment in his favour Mr Manatov firstly addressed the bailiff's office. Then, upon receipt of the refusal to enforce the judgment, he forwarded the writ to another State agency indicated by the bailiffs.", "It is true that the agency refused to execute the writ referring to certain jurisdiction principles; however, it did not indicate to the applicant which agency was competent to enforce the judgment in the latter's favour. In any event, the regulations on enforcement, to which the Government referred, did not preclude the applicant from seeking the enforcement in a normal way, that is through the bailiffs (see the “Relevant domestic law” part above; see also Shvedov v. Russia, no. 69306/01, § 34, 20 October 2005), and the Government did not deny that the applicant had made recourse to that authority. 56. Furthermore, the Court recalls that a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed (see Metaxas v. Greece, no.", "8415/02, § 19, 27 May 2004). The Court further recalls that it is incumbent on the State to organise its legal system in such a way that ensures co-ordination between various enforcement agencies and secures honouring of the State's judgment debts in good time. It would impose an excessive burden on the applicant if he has to forward the writ of execution from one competent State agency to another (see Reynbakh v. Russia, no. 23405/03, § 23, 29 September 2005). The Court does not see any reason to depart from its findings in the Reynbach case, and concludes that Mr Manatov took reasonable steps to obtain execution of the judgment in his favour.", "57. The Court finally observes that according to the information provided by the parties the judgment in favour of Mr Manatov is not enforced to date; in other words, the delay in the enforcement constitutes five years and eight months. In line with its well-established case-law on this subject (see above) the Court concludes that the prolonged non-enforcement of the judgment in favour of Mr Manatov constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. (c) As regards Mr Sychev 58.", "The Government claimed that the non-enforcement of the judgments in favour of Mr Sychev could not be imputed to the authorities since the applicant had failed to comply with the domestic formalities required for obtaining his award. However, the Court has certain doubts as to what was the genuine reason for the non-enforcement of the judgments. Whereas in 2002 the town treasury office informed the applicant that they had no competence to deal with the writ of execution of 18 May 2002, in 2003 the town treasury office refused to pay against the writ of execution of 7 March 2003 referring to the lack of funds. The Court recalls in this respect that the lack of funds is not a good excuse for the State to refuse paying off a judgment debt (see Burdov, cited above, § 41). 59.", "In any event, having in mind its case-law on enforcement of court judgments against the State (see Metaxas and Reynbakh, both cited above), the Court finds that the applicant took reasonable steps to obtain execution of the judgment in his favour. 60. The Court further observes that the parties did not provide information as to the exact dates of execution of the judgments in the applicant's favour. However, it was undisputed that both judgments were fully executed only in February 2004. Hence, the delays in the enforcement amount to one year and some nine months as regards the judgment of 23 April 2002, and one year and some six months as regards the judgment of 5 July 2002.", "The Court, in line with its previous case-law (see above), concludes that the delayed execution of the judgments in favour of Mr Sychev constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. II. 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. Mr Pridatchenko 62.", "The applicant claimed 10,000 euros (EUR) on account of pecuniary and non-pecuniary damage sustained by him as a result of the delays in the enforcement of the judgments in his favour. He can be understood as claiming that, due to the delayed enforcement, the money awarded to him lost a part of its purchasing power. In support of his claims the applicant produced official statistics reflecting inflation rates in the Leningrad region between 1999 and 2003. Further, he claimed that the delays in the enforcement caused him mental suffering and the feeling of humiliation. 63.", "When commenting on the applicant's claims for non-pecuniary damage, the Government suggested that a finding of a violation would by itself constitute sufficient just satisfaction. Alternatively, they suggested that a compensation similar to one awarded in the case Burdov (cited above, § 47) would suffice. In any event, in their view, the amount of this compensation should not exceed EUR 1,500. 64. The Court notes that the judgments of 16 November 2001 (awarding the applicant 2,015 Russian roubles (RUR)), of 26 November 2001 (awarding the applicant RUR 93,746.70), and of 8 February 2002 (awarding the applicant RUR 2,015) were not enforced until January 2004.", "As follows from the information provided by the applicant and not contested by the Government, the inflation rate between December 2001 and December 2003 amounted to 133 per cent. Therefore, the applicant's pecuniary losses caused by the delayed payment of the above amounts constituted RUR 665 on account of the first judgment and RUR 30,936 on account of the second judgment. As to the third judgment, the inflation rate between March 2002 and December 2003 constituted 125.5 per cent. Therefore, the applicant's pecuniary loss in respect of the third judgment was equal to RUR 513.80. In sum, because of the delayed payment of the amounts awarded by the courts in 2001 and 2002, and the monetary depreciation during the relevant period, the applicant lost RUR 32,114.80.", "That sum should be awarded to the applicant on account of pecuniary damages, plus any tax that may be chargeable on that amount. 65. As to the non-pecuniary damages, the Court considers that the delays in the enforcement could have indeed caused certain mental distress to the applicant, which cannot sufficiently be compensated by the finding of a violation. The Court takes into account the nature and the amount of the awards, the delays before the enforcement and other relevant aspects. Making its assessment on an equitable basis, it awards the applicant EUR 1,600, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damages, plus any tax that may be chargeable on that amount.", "B. Mr Manatov 66. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 67. In the case of Mr Manatov, on 4 March 2004 the Court invited the applicant to submit his claims for just satisfaction before 15 April 2004. However, the applicant did not submit any such claims within the specified time‑limit, neither did he request the Court to grant an extension of time.", "68. In view of the above, the Court makes no award under Article 41 of the Convention (see, for example, Şirin v. Turkey, no. 47328/99, §§ 27-29, 15 March 2005, and Pravednaya v. Russia, no. 69529/01, §§ 43-46, 18 November 2004). However, that finding does not relieve the State from complying with the Court's judgment in the present case by enforcing the judgment in the applicant's favour, if it has not been enforced to date.", "C. Mr Sychev 1. Pecuniary damage 69. The applicant claimed that he sustained pecuniary damage in the amount of RUR 37,400 that he had paid as the faculty of law's tuition fees. He explained that he needed legal education to bring his case before the Court. The Government objected claiming that lodging an application with the Court did not require any specific legal training.", "The Court agrees with the Government and finds no causal link between the violation found and the damage claimed. Accordingly, the Court sees no reason to grant any award under this head. 2. Non-pecuniary damage 70. The applicant claimed non-pecuniary damage in the amount to be determined by the Court.", "The Government suggested that a finding of a violation would by itself constitute sufficient just satisfaction. The Court considers that the delays in the enforcement could have indeed caused certain mental distress to the applicant, which cannot sufficiently be compensated by the finding of a violation. The Court takes into account the nature and the amount of the awards, the delays before the enforcement and other relevant aspects. Making its assessment on an equitable basis, it awards the applicant EUR 1,200 under the head of non-pecuniary damages, 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. D. Mr Frolov 71.", "The applicant claimed EUR 10,000 on account of pecuniary and non-pecuniary damage sustained by him as a result of the delay in the enforcement of the judgment in his favour. In support of his claims for pecuniary damages the applicant referred to the official statistics on the inflation rate in the Karelia region where he lived at the material time. As to the non-pecuniary damages claimed the applicant produced medical reports showing that the state of health of the members of his family had deteriorated. The Government made no comments on the applicant's claims under Article 41. 72.", "The Court recalls that the judgment of the Petrozavodsk Garrison Military Court of 3 February 2003, awarding the applicant RUR 31,659.91, was enforced on 7 April 2004. The official statistics produced by the applicant covered the period until December 2003. From that statistics it follows that by the end of 2003 the judicial award should have lost RUR 2,631.80 of its purchasing power. That sum should be awarded to the applicant on account of pecuniary damage sustained by him, plus any tax that may be chargeable on that amount. 73.", "As to the non-pecuniary damages, the Court does not see any causal link between the non-enforcement complained of and the medical problems of the applicant's relatives. At the same time the Court notes that the award due to the applicant was of a considerably large amount, and that the delay in the enforcement could have indeed caused certain mental distress to him. The Court therefore awards the applicant under this head the sum of EUR 800 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. E. Default interest 74. The Court considers it appropriate that the default interest, in respect of the awards made above, should be based on 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 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the delayed enforcement of the judgments in the applicants' favour; 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 domestic court's judgment of 8 October 2001 in favour of Mr Manatov; (b) that the respondent State, within the same period, shall pay the following amounts: (i) to Mr Pridatchenko, RUR 32,114.80 (thirty-two thousand one hundred and fourteen Russian roubles eighty kopecks) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred euros) in respect of non-pecuniary damage, the latter amount to be converted into Russian roubles at the rate applicable at the date of settlement; (ii) to Mr Sychev, EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (iii) to Mr Frolov, RUR 2,631.80 (two thousand six hundred and thirty-one Russian roubles eighty kopecks) in respect of pecuniary damage and EUR 800 (eight hundred euros) in respect of non-pecuniary damage, the latter amount to be converted into Russian roubles at the rate applicable at the date of settlement; (iv) any tax that may be chargeable on the above amounts; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIFTH SECTION CASE OF GACON v. FRANCE (Application no. 1092/04) JUDGMENT STRASBOURG 22 May 2008 FINAL 22/08/2008 This judgment is final but it may be subject to editorial revision. In the case of Gacon v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Jean-Paul Costa,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1092/04) 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-Claude Gacon (“the applicant”), on 23 December 2003.", "2. The applicant was represented by Mr X. Vuitton, of the Conseil d’Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3. The applicant alleged that the additional time granted to the Principal Public Prosecutor for appealing against a judgment of the Criminal Court amounted to a breach of the principle of equality of arms as enshrined in Article 6 § 1 of the Convention.", "4. On 16 October 2006 the Court decided to give notice of the application. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1940 and lives in Saint-Didier-au-Mont-d’Or. 6. On 30 May 1995 the Lyons Central Health Insurance Office (caisse primaire centrale d’assurance maladie) filed a criminal complaint stating that an investigation it had carried out in 1993 had revealed that the price charged for prosthetic knee joints by the Clinique du Parc, of which the applicant was the manager, appeared abnormally high, especially in relation to the price charged in the public sector. It added that the prostheses were directly delivered to the operating theatre at the Clinique du Parc but were billed by a company named Clinique Service, also managed by the applicant, with a systematic increase of 15% for the prostheses and 18.5% for the ancillary equipment, the increased price alone being charged to the Health Insurance Office. The Health Insurance Office therefore had doubts about the Clinique Service company, suspecting that its sole activity consisted in overbilling in this way.", "7. In the course of the investigation, complaints about similar acts were filed by various other health insurance funds or payment agencies. 8. The preliminary investigation found, among other things, that the Clinique Service company had been established in particular to alleviate cash-flow problems resulting from the delay in reimbursement of health care under the third-party payment system. Under this system, in order to be fully reimbursed by the social security scheme for the health care provided, Clinique du Parc had to wait for the invoice from the prosthesis supplier, which meant a delay of several days, if not weeks.", "9. It also transpired that Clinique Service used the same premises and staff as the Clinique du Parc, that its sole customer was the Clinique du Parc and that its manager, the applicant, was also the manager of the Clinique du Parc together with his brother. 10. In an order of 28 August 2000 the applicant and his brother were committed to stand trial in the Lyons Criminal Court, being charged in particular with having deceived the social security scheme and the relevant health insurance offices through fraudulent practices including the operation of a bogus company in order to secure reimbursement. 11.", "The applicant submitted, as part of his defence, that the offence of professional collusion (compérage) was covered by an automatic amnesty and that a prosecution for the same actions characterised as fraud could not succeed, since only the special provisions concerning the characterisation of professional collusion were applicable. 12. In a judgment of 30 March 2001 the Lyons Criminal Court held that the prosecution had lapsed as the offence of professional collusion was covered by an automatic amnesty, and that it lacked jurisdiction to examine the claims of the civil parties (the health insurance offices that had lodged the criminal complaint against the applicant) whose interests had been harmed as a result of the acts covered by the automatic amnesty. It further held that the offence of fraud was not made out. The applicant was accordingly acquitted.", "13. Within the ten-day time-limit laid down in Article 498 of the Code of Criminal Procedure, the civil parties appealed against the judgment of 30 March 2001. 14. Although the public prosecutor at the Criminal Court had declined to appeal within the ten-day time-limit laid down in Article 498 of the Code of Criminal Procedure, the Principal Public Prosecutor lodged an appeal against the judgment on 20 April 2001, availing himself of the two-month time-limit granted to him for that purpose by Article 505 of the same Code. 15.", "The applicant submitted, in particular, that the Principal Public Prosecutor’s appeal was inadmissible on the grounds that the time-limit reserved for him was incompatible with the guarantees of Article 6 § 1 of the Convention, in particular the principle of equality of arms. 16. In a judgment of 13 March 2002 the Lyons Court of Appeal dismissed that argument on the following grounds: “... The provisions of Article 505 of the Code of Criminal Procedure, by which the time granted to the Principal Public Prosecutor for exercising his right of appeal under Article 497 of the same Code is set at two months, are not incompatible with the principle of a fair trial under Article 6 of the European Convention on Human Rights, in so far as the Code secures the right of appeal to defendants, who are given sufficient time in which to make meaningful use of it. The balance between the rights of each party is not upset by the two-month time-limit accorded to the Principal Public Prosecutor, which is justified by the latter’s statutory duty to ensure that the criminal law is applied throughout the area of the Court of Appeal’s jurisdiction.", "...” 17. The Lyons Court of Appeal also upheld the judgment appealed against in so far as it had declared that the prosecution of the offence of professional conspiracy had lapsed by virtue of an amnesty, but overturned it by finding the applicant guilty of the offence of fraud. The applicant was accordingly sentenced to a suspended term of two years’ imprisonment, ordered to pay a fine of 120,000 euros (EUR) and stripped of his civic, civil and family rights for five years. He was also ordered, jointly and severally with his brother, to pay the sum of EUR 442,573.13 in compensation for all the damage found to have been sustained by the civil parties, and EUR 6,800 in respect of the costs incurred by the civil parties. 18.", "The applicant appealed on points of law, arguing in particular that the time available to the Principal Public Prosecutor for lodging an appeal under Article 505 of the Code of Criminal Procedure was incompatible with Article 6 § 1 of the Convention. In a judgment of 25 June 2003 the Criminal Division of the Court of Cassation dismissed the applicant's appeal, holding in particular: “... Article 505 of the Code of Criminal Procedure, which sets a two-month time-limit for an appeal by the Principal Public Prosecutor, is not in breach of Article 6 § 1 of the Convention in so far as the defendant also has a right of appeal and sufficient time in which to make meaningful use of it. ...” II. RELEVANT DOMESTIC LAW AND PRACTICE 19.", "The relevant provisions of the Code of Criminal Procedure read as follows: Article 496 “An ordinary appeal may be lodged against judgments of the criminal courts. ...” Article 497 “The following persons have a right of appeal: (1) the defendant; (2) the person liable under the civil law, in respect of civil interests only; (3) the civil party, in respect of his or her civil interests only; (4) the public prosecutor; (5) the public authorities, in cases where they have brought the prosecution; (6) the Principal Public Prosecutor at the Court of Appeal.” Article 498 “Save in the case provided for in Article 505, an appeal shall be lodged within ten days from the delivery of a judgment given in the presence of both parties. ...” Article 500 “Where one of the parties appeals during the above-mentioned periods, the other parties shall have an additional five days in which to lodge an appeal.” Article 505 “The Principal Public Prosecutor shall lodge an appeal, by service either on the defendant or on the person civilly liable for the offence, within two months from the date on which judgment is delivered.” Article 509 “The case shall be referred to the Court of Appeal to the extent determined by the notice of appeal and by the applicant’s capacity as stated in Article 515 …” Article 515 “The Court of Appeal, on an appeal by the prosecution authorities, may either uphold the judgment or overturn it entirely or in part, to the defendant’s advantage or disadvantage. Where only the defendant, the person liable under civil law, the civil party or the assurer of one of the aforementioned persons has appealed, the court may not worsen the appellant’s situation ...” 20. Other relevant information can be found in paragraphs 17-20 of Ben Naceur v. France (no.", "63879/00, 3 October 2006). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained of a breach of the principle of equality of arms on account of the additional time granted to the Principal Public Prosecutor for appealing against the Criminal Court’s judgment. He relied on 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 [a] … tribunal …” A. Admissibility 22.", "The Government contended that the applicant did not have victim status. As he had been acquitted at first instance, he had had no interest in appealing. He had not even lodged a cross-appeal against the main appeal by the civil parties. That being so, the extended time granted to the Principal Public Prosecutor had been of no practical consequence and the alleged “breach of equality” was purely hypothetical; an examination of the complaint as submitted by the applicant would require the Court to assess the legislation in the abstract. 23.", "The applicant disputed that argument. Although he had been acquitted at first instance and the public prosecutor at the Criminal Court had not lodged an appeal, the Principal Public Prosecutor at the Court of Appeal had subsequently appealed, and this had led to his conviction. The fact that he had been acquitted at first instance did not render the damage or the right merely notional. The argument as to his lack of interest in appealing was irrelevant: the fact remained that the procedural rules that had allowed him to be convicted on appeal amounted in themselves to a violation of the Convention. 24.", "The Court observes that the appeal lodged by the Principal Public Prosecutor under Article 505 of the Code of Criminal Procedure significantly altered the outcome of the proceedings against the applicant, who can therefore claim to be a “victim” within the meaning of Article 34 of the Convention. 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 26. The applicant submitted that the function of the prosecution service and the importance of its role did not require it to enjoy a dual right of appeal; an appeal by the public prosecutor at the Criminal Court would be sufficient in itself. Above all, this role did not justify setting a more favourable time-limit for the prosecution than for the other parties to the proceedings. The most recent amendment to Article 505 of the Code of Criminal Procedure dated back to 1960; while it was conceivable that it could have taken a considerable time to forward the case file to the Principal Public Prosecutor at that time, this was no longer the case.", "The difference in time-limits could therefore not be justified by practical organisational constraints. 27. The applicant added that since he had lodged his application, the Court had delivered the Ben Naceur v. France judgment (no. 63879/00, 3 October 2006), in which it had held that despite the opportunity for the applicant to appeal or make further submissions challenging his guilt, the difference in the time granted to the different parties for appealing amounted to a breach of equality of arms. In practice, the two-month time-limit granted to the Principal Public Prosecutor existed purely to allow the prosecuting authorities to circumvent the normal procedural deadline (ten days); the mechanism in Article 505, which allowed one of the parties to redress the error made by failing to appeal in time, and which thereby subjected the other party to differential and unfavourable treatment by not allowing that party the benefit of limitation periods under normal conditions and the legal certainty they entailed, breached the principle of equality of arms.", "This had already been taken into account by the Government in a different context. The former Article 546 of the Code of Criminal Procedure had entitled the Principal Public Prosecutor to lodge an appeal against any judgments concerning petty offences (contraventions), whereas the parties had been denied that right. As a result, the Court of Cassation had found that the relevant provision breached the principle of equality of arms, and the legislature had endorsed that reasoning by repealing the provision in the Law of 23 June 1999. In that particular example, as in the present case, only the prosecution had had an interest in appealing and the fact that the respondent had been acquitted did not make render that right in any way notional. The difference in treatment as to the possibility of appealing and the practical procedure for doing so was sufficient in itself to breach the principle of equality of arms between the parties, even if they did not concurrently exercise their right in every case.", "28. Regarding the appeal by the Principal Public Prosecutor, the Government emphasised the latter’s importance in pursuing criminal policy. The right to appeal against judicial decisions was inseparable from the role of the prosecution service. In particular, the importance of the Principal Public Prosecutor’s right of appeal in cases concerning serious crimes (crimes) had been emphasised by the Court in relation to acquittals (the Government cited Rosier v. France, 11 October 2005, and Guillemot v. France, 20 December 2005); a fortiori, such a right of appeal was justified in relation to acquittals for intermediate offences (délits). The additional time granted to the Principal Public Prosecutor was justified, in the Government’s submission, by the fact that he was not a party to the judgment and had knowledge of it at a later stage than the parties did; it reflected the need to coordinate criminal policy across the area of the prosecutor’s jurisdiction.", "The prosecution’s right of appeal, and hence the availability of a review, made it possible to perform a regulatory and corrective role, whether this role resulted in conviction or acquittal. Although in formal terms the defendant did not have the right to lodge a cross-appeal following an appeal by the Principal Public Prosecutor, the Court of Appeal was required to examine all aspects of the case, and in particular all of the defendant’s arguments (Court of Cassation, Criminal Division, 17 January 1996). With regard to equality of arms, the Government pointed out that the Court had already had occasion to rule on the compatibility of Article 505 of the Code of Criminal Procedure with Article 6 § 1 (they cited Guigue and SGEN-CFDT v. France (dec.), no. 59821/00, ECHR 2004-I). In a subsequent judgment (Ben Naceur, cited above) it had admittedly found a violation of the principle of equality of arms on account of the Principal Public Prosecutor’s exercise of the right of appeal within a two-month time-limit, but that decision could not be transposed to the present case.", "Firstly, it related to the circumstances of that particular case; and secondly, the reason why the Court had departed from its finding in Guigue was Mr Ben Naceur’s status as a “defendant ... convicted at first instance” who had been “deprived of the opportunity to lodge a cross-appeal with the ... Court of Appeal” (citing Ben Naceur, §§ 34 and 35). In the present case, the applicant was a defendant who had been acquitted at first instance and who, regardless of whether the other parties or the Principal Public Prosecutor exercised their right of appeal, had had no interest in lodging an appeal or cross-appeal against his acquittal, and thus no opportunity to do so. 29. The Government lastly submitted that the criticism of the additional time granted to the Principal Public Prosecutor was irrelevant in the present case. The judgment had been delivered on 30 March 2001, and the civil parties had taken the initiative in appealing against it within the ten-day time-limit.", "In view of that appeal, pursuant to Article 500 of the Code of Criminal Procedure, the time-limit by which any of the other parties could use that remedy had been put back until 17 April 2001. The Principal Public Prosecutor had decided on 12 April 2001 to appeal against the judgment in question, and the applicant had been notified of that decision on 20 April. If 20 April was taken as the date of the Principal Public Prosecutor’s appeal, he had had only three additional days. It could therefore not be inferred from that amount of time that the applicant had been placed at a substantial disadvantage vis-à-vis his opponents. 30.", "Lastly, the Government alerted the Court to the need to take into account imperatives linked to legal certainty. They cited the positions taken in Tejedor García v. Spain (16 December 1997, Reports of Judgments and Decisions 1997-VIII) and Guigue and SGEN-CFDT (cited above), in which the Court, at the times under consideration, had not found that the additional time granted to a public prosecutor for appealing against a criminal court judgment raised an issue in terms of equality of arms. 31. The Court reiterates that, according to its case-law, the principle of equality of arms – which is one of the aspects of the broader concept of a fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, De Haes and Gijsels v. Belgium, 24 February 1997, § 53, and Guigue and SGEN-CFDT, cited above). 32.", "With regard to rules of a procedural nature such as time-limits for lodging appeals, the Court reiterates that such rules form an integral part of the concept of a fair trial and that it is primarily for the national authorities, especially the courts, to interpret and apply domestic law. The Court will not substitute its own interpretation for theirs unless their interpretation is arbitrary or places the applicant at a substantial disadvantage vis-à-vis the State (see, mutatis mutandis, Tejedor García, cited above, § 31, and Platakou v. Greece, no. 38460/97, §§ 47-48, ECHR 2001-I). 33. The Court points out, lastly, that it has found that a defendant convicted at first instance (whose interests are distinct from and opposed to those of the prosecution) whose sentence was substantially increased following an appeal by the Principal Public Prosecutor under Article 505 of the Code of Criminal Procedure was justified in complaining of a violation of Article 6 § 1, given that “the additional time available to the prosecution for appealing, combined with the fact that it was impossible to lodge a cross-appeal, placed the applicant at a substantial disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms” (see Ben Naceur, cited above, § 40).", "34. The Court observes that the present case is similar to Ben Naceur. After the applicant had been acquitted at first instance, the public prosecutor did not appeal against the Criminal Court’s judgment within the ten-day time-limit available to him under Article 497 of the Code of Criminal Procedure. Similarly, when the case was examined on appeal, the first-instance judgment was substantially overturned in respect of the applicant: whereas he had been acquitted at first instance, on appeal he was found guilty of the offence of fraud and given a suspended sentence of two years’ imprisonment, as well as being fined EUR 120,000 and stripped of his civic, civil and family rights for five years. Furthermore, while the prospects of an appeal having a favourable outcome for the applicant were limited in the Ben Naceur case, entailing a substantial risk that his sentence would be increased, the appeal by the Principal Public Prosecutor in the present case exposed the applicant to the even greater risk of having his acquittal overturned.", "It follows a fortiori that in the absence of an appeal either by the applicant, given that he had been acquitted at first instance, or by the public prosecutor at the Criminal Court, Article 505 of the Code of Criminal Procedure had the effect of creating a situation of legal uncertainty for the applicant on account of the difference in the time-limits for appealing. Such an imbalance, resulting from the additional time granted to the Principal Public Prosecutor for lodging an appeal in the present case, placed the applicant at a significant disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms. 35. There has therefore been a violation of Article 6 § 1 of the Convention. 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 373,783.54 euros (EUR) in respect of pecuniary damage. The damage stemmed both from the orders made against him by the domestic courts, which would not have been possible if the time granted to the Principal Public Prosecutor for appealing had been limited to the normal period of ten days, and also from the costs incurred in presenting his case before the courts concerned (the Court of Appeal and the Court of Cassation).", "The claim was broken down as follows: EUR 120,000 for the fine, EUR 221,935.42 for the damages awarded to the civil parties, EUR 8,400 for the costs paid to the opposing parties and EUR 23,448.12 for the fees paid after the acquittal. The applicant also claimed EUR 100,000 in respect of non-pecuniary damage. 38. The Government contested the applicant’s claims in respect of pecuniary damage. Even if the Court were to find a violation, such a finding could not be said to concern the cause of the alleged damage – namely, the orders made against the applicant by the Court of Appeal.", "In any event, the amount awarded in damages to the civil parties (which was unconnected to the Principal Public Prosecutor’s appeal) could not be included as part of such damage. The costs had even been incurred outside the context of an appeal by the Principal Public Prosecutor, since the civil parties had lodged a prior appeal. As to non-pecuniary damage, the Government submitted that this had likewise not resulted from the Principal Public Prosecutor’s appeal but from the appeal by the civil parties, and that the applicant’s conviction was the consequence of his own actions. 39. The Court considers first of all that the applicant’s claim for reimbursement of fees, submitted under the head of pecuniary damage, is to be examined in the section on costs and expenses (see paragraph 43 and 44 below).", "As to the rest of the claim, in accordance with its case-law (see, for example, Yvon v. France, no. 44962/98, ECHR 2003-V), the Court considers that it cannot speculate as to what the outcome of the proceedings would have been if they had satisfied the requirements of Article 6 § 1. Consequently, no causal link has been established between the violations complained of and the pecuniary damage alleged. However, the Court considers it appropriate to award the applicant EUR 4,500 in respect of non-pecuniary damage (see Ben Naceur, cited above, § 45). B.", "Costs and expenses 40. The applicant claimed EUR 4,000 for the costs and expenses incurred before the Court. 41. The Government demanded proof of the actual payment of that amount. The applicant subsequently provided a copy of the cheque that had been issued.", "42. According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. 43. The Court also points out that, where it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention or redress of the violation (see Hertel v. Switzerland, 25 August 1998, § 63, Reports 1998-VI). 44.", "The Court points out, firstly, that the applicant provided relevant documents in support of his claims. It considers, furthermore, that the sums sought in respect of the costs and expenses incurred in the proceedings before it are not excessive; it therefore allows this part of the applicant’s claims in full. Lastly, it notes that the applicant specifically raised an argument before the Court of Appeal and the Court of Cassation alleging an infringement of his right to a fair trial on account of the difference in the time-limits available to the defendant and the Principal Public Prosecutor for lodging an appeal against a Criminal Court judgment, and it finds that part of the costs before those courts can be said to have been incurred “for prevention or redress” of the violation it has found. It considers it reasonable to award the applicant EUR 2,000 under this head. In conclusion, the Court awards the applicant EUR 6,000 for costs and expenses.", "C. Default interest 45. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 22 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer Lorenzen RegistrarPresident" ]
[ "SECOND SECTION CASE OF TEZCAN UZUNHASANOĞLU v. TURKEY (Application no. 35070/97) JUDGMENT STRASBOURG 20 April 2004 FINAL 20/07/2004 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 Tezcan Uzunhasanoğlu 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,MrC. Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mr T.L.", "Early, Deputy Section Registrar, Having deliberated in private on 20 May 2003 and on 23 March 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 35070/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Ayşe Tezcan Uzunhasanoğlu (“the applicant”), on 23 January 1997. 2. The applicant was represented by Mr K.T.", "Sürek, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions. 3. The applicant alleged, in particular, that she had been denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her. She further complained that the Court of Cassation had based its decision on witness statements taken at the police station, which the witnesses subsequently repudiated as having been made under duress.", "The applicant finally contended that the Court of Cassation had not respected the principles of an adversarial procedure or respect for equality of arms and had not held a hearing. 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 Second Section (Rule 52 § 1). 7. By a decision of 20 May 2003, the Court declared the application partly admissible. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1963 and lives in Istanbul. 10. On 30 May 1992 the applicant was taken into police custody on suspicion of aiding and abetting an illegal organisation, the Devrimci-Sol (Revolutionary-Left).", "11. On 3 June 1992 the public prosecutor at the Istanbul State Security Court filed an indictment with the latter charging the applicant, under Article 169 of the Criminal Code and Articles 4 and 5 of the Prevention of Terrorism Act, with aiding and abetting members of an illegal armed organisation. 12. On 7 September 1993 the Istanbul State Security Court acquitted the applicant of the charges against her for lack of evidence. 13.", "On 23 December 1993 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The court noted that the applicant had been in charge of communications among members of the Devrimci-Sol and that she had allowed them to organise meetings in her house. It further held that the first instance court had failed to take into account the applicant's confessions and the statements given by witnesses against her at the police station. 14. On 12 April 1994 the Istanbul State Security Court delivered a judgment identical to the first one.", "The court noted that the applicant had refuted the confession statements she made in police custody and that the two witnesses had rejected their statements as they had allegedly been made under duress at the police station. The court reiterated that there was insufficient evidence to convict the applicant. It ruled that the applicant should be acquitted. 15. On 3 October 1994 the Plenary Chamber of the Court of Cassation (Yargıtay Ceza Genel Kurulu) quashed the Istanbul State Security Court's judgment on the ground that there was sufficient evidence to convict the applicant.", "The case was referred once again to the Istanbul State Security Court. 16. On 18 December 1995 the Istanbul State Security Court found the applicant guilty as charged and sentenced her to three years and nine months' imprisonment and debarred her from holding public office for three years. The applicant appealed. Furthermore, she requested a hearing before the Court of Cassation.", "17. On 9 July 1996 the Court of Cassation dismissed the applicant's request for a hearing holding that the request had been introduced out of time. Moreover, it upheld the judgment of the Istanbul State Security Court. II. RELEVANT DOMESTIC LAW AND PRACTICE 18.", "The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 19.", "The applicant complains under Article 6 § 1 of the Convention that she was denied a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the Istanbul State Security Court which tried and convicted her. She further submits under the same heading that the Court of Cassation had based its decision on witness statements taken at the police station, which the witnesses subsequently rejected as having been made under duress. The applicant finally contends under Article 6 § 1 and Article 6 § 3 (c) and (d) that the Court of Cassation did not respect the principles of an adversarial procedure or respect for equality of arms and did not hold a hearing. 20. As to the applicant's complaint concerning the composition of the Istanbul State Security Court, the Court notes that it has examined similar grievances in the past and has found a violation of Article 6 § 1 (see, among many other authorities, Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no.", "59659/00, §§ 35-36, 6 February 2003). 21. The Court sees no reason to reach a different conclusion in the instant case. It is reasonable that the applicant who was prosecuted in a State Security Court for aiding and abetting an illegal organisation should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, she could legitimately fear that the Istanbul State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.", "In other words, the applicant's fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine). 22. Accordingly, the Court concludes that there has been a violation of Article 6 § 1. 23. Having regard to its finding that the applicant's right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's other complaints under Article 6 §§ 1 and 3 (c) and (d) (see Incal, cited above, § 74, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 45).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 25. The applicant claimed a total of 40,000 euros (EUR) for pecuniary and non-pecuniary damage.", "26. The Government contested the applicant's claim. They maintained that the sums claimed were excessive and unjustified. 27. Regarding the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of the proceedings before the State Security Court might have been had the violation of the Convention not occurred (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, § 85).", "Moreover, the applicant's claim in respect of pecuniary damage has not been substantiated by any evidence whatsoever. It therefore makes no award under this head. 28. With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Çıraklar, cited above, § 49). 29.", "Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see Gençel, cited above, § 27). B. Costs and expenses 30. The applicant claimed a total of EUR 5,000 for costs and expenses incurred in the proceedings before the domestic authorities and before the Strasbourg institutions. 31.", "The Government contested the applicant's claim. They further submitted that the claim in respect of costs and expenses had not been duly documented. 32. The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see, as a recent authority, Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).", "33. Making its own estimate based on the information available, the Court awards the applicant EUR 3,000 in respect of costs and expenses. C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the Istanbul State Security Court; 2. Holds that it is not necessary to consider the applicant's other complaints under Article 6 of the Convention; 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage alleged; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of payment, 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 applicant's claim for just satisfaction.", "Done in English, and notified in writing on 20 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyJ. P. Costa Deputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF SOLOVYEVA v. UKRAINE (Application no. 32547/03) JUDGMENT STRASBOURG 13 December 2005 FINAL 13/03/2006 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 Solovyeva 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,MrsA. Mularoni,MrsE.", "Fura-Sandström, 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. 32547/03) 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, Ms Aleksandra Ivanovna Solovyeva (“the applicant”), on 14 August 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska.", "3. On 15 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 1933 and lives in the town of Chuguyev, the Kharkiv region. A. The debtor company 5. The State owns 32.67% of the shares in the Chuguyevskaya Toplivnaya Apparatura Company (the applicants’ employer, hereafter “the Company”), which is therefore subject to the Law of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property”. B.", "The circumstances of the case 6. On 2 December 1999 the labour disputes commission of the Company awarded the applicant UAH 1,216[1] in salary arrears. On the same date the commission issued a certificate to the applicant, which had the same status as a court’s writ of execution. The enforcement proceedings were initiated on 8 December 1999 by the Chuguyev City Department of the State Bailiffs’ Service (the “Bailiffs”). 7.", "On 12 June 2002 the Chuguyev City Court ordered that the Company’s salary, social benefits and alimony arrears be paid by instalments. The court referred, inter alia, to the practical suspension of the enforcement proceedings against the Company following the adoption of the aforementioned moratorium Law. 8. In a letter of 2 July 2003, the Kharkiv Regional Department of Justice (the “Department”) also referred to this Law as being an impediment to the enforcement of the award. However, the Department indicated that the proceedings with respect to the assets of the Company not covered by the moratorium (i.e.", "bank accounts) were to continue. 9. Numerous enforcement proceedings against the Company (including the applicant’s case) were impeded by the decision of the City Court of 12 June 2002. Therefore, on 30 July 2002 and 29 October 2002, the Bailiffs applied to the court, requesting the clarification of its decision. However, it was not until 9 April 2003 that the clarification, enabling the Bailiffs to carry out the enforcement, was delivered.", "10. On a number of occasions between July 2002 and February 2004, the Kharkiv Regional Commercial Court instituted bankruptcy proceedings against the Company and issued an injunction barring further debt recovery. The last decision of this kind was taken on 19 February 2004. 11. According to a letter dated 5 May 2004 from the Department, the enforcement of the applicant’s award was hindered by both the City Court decision of 12 June 2002 and the bankruptcy proceedings against the Company.", "The latter caused the Bailiffs to stay the enforcement proceedings on a number of occasions (the last such suspension being made on 16 May 2003 and subsequently lifted on 16 January 2004). 12. On 31 March 2005 the award was fully paid to the applicant. II. RELEVANT DOMESTIC LAW 13.", "The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.", "1 14. The applicant complained of breaches of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which in their relevant parts provide 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.", "(...). 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. Objection as to the exhaustion of domestic remedies 15. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, since she had not challenged the Bailiffs’ inactivity before the domestic courts. 16.", "The applicant contested this submission, alleging that this remedy had no prospect of success. 17. The Court notes that, throughout the period under consideration, the enforcement of the award was hindered by legislative measures, rather than by the Bailiffs’ misconduct. In this respect the Court recalls its established case law that a claim for damages against the Bailiffs cannot be considered an effective remedy where the delay in the enforcement of the judgments was due to reasons beyond the Bailiffs’ control (see, among many others, Mykhaylenky and Others v. Ukraine, nos. 35091/02, and the following, §§ 38-39, ECHR 2004‑...).", "2. Compatibility ratione personae (responsibility of the State) 18. The Government maintained that the Company was a separate legal entity and the State could not be held responsible for its debts under domestic law. 19. The applicant disagreed.", "20. The Court recalls that the responsibility of a State is engaged if Convention rights and freedoms are affected as a result of the enactment of domestic legislation (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, p. 20, § 49). The Court finds that in the present case the debtor company was undoubtedly a State-owned enterprise within the meaning of Article 1 of the Law “on the Introduction of a Moratorium on the Forced Sale of Property” (see Sokur v. Ukraine, no. 29439/02, § 18, 26 April 2005).", "As such, it attracted the application of the moratorium, barring the attachment and sale of the Company’s assets. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis. 3. Conclusion 21. The Court concludes 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. B. Merits 22. The Government maintained that the lengthy failure to enforce the decision in the applicant’s favour had been caused by the debtor’s lack of funds, for which the State bears no responsibility, holding only 32.67% of the Company’s share capital. The Government also stated that the Bailiffs performed all necessary actions to enforce the decision and could not be held liable for any delay.", "They concluded, therefore, that there was no infringement of Article 6 § 1 of the Convention. 23. The applicant disagreed. 24. The Court first notes that the decision of the labour disputes commission in the applicant’s case is the equivalent of a court decision, and the State bears responsibility for its non-execution (see the aforementioned Romashov v. Ukraine case, § 41).", "25. Secondly, the Court observes that the domestic authorities on a number of occasions confirmed that the application of the moratorium Law substantially impeded the enforcement proceeding against the Company (see paragraphs 7 and 8 above). It recalls its previous findings that the domestic legislation does not offer a creditor like the applicant, or the Bailiffs, any possibility to challenge the restriction imposed by the moratorium on the forced sale of property of State-owned entities in case of abuse or an unjustified application. Nor can a compensation claim be made for the delay in enforcement caused by this restriction (see Trykhlib v. Ukraine, no. 58312/00, § 51, 20 September 2005).", "26. Thirdly, a further delay in the enforcement of the applicant’s award was caused by the decision of the City Court on 12 June 2002, which substantially complicated any execution proceedings against the Company. However, despite the Bailiffs’ repeated requests, it was not until April 2003 that the court clarified its decision, enabling the Bailiffs to carry out their duties. The Court finds that the Government have failed to advance any argument to justify this delay. 27.", "Fourthly, the Court notes that the bankruptcy proceedings against the Company further blocked the enforcement as the commercial court could prevent any debt retrieval from the bankrupt entity, and the latter would remain immune from any penalties for the delays in honouring its obligations for the duration of those proceedings. The Court recalls that it has already found in the aforementioned Trykhlib case (§§ 49-50) that this procedure, applied in similar circumstances, may lead to the violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The Court sees no reason to depart from this conclusion in the present case. 28.", "Finally, the Court observes that the decision of 2 December 1999 remained unenforced until 31 March 2005, i.e. a period of over five years and five months, and then it was only executed after the application had been communicated to the respondent Government. 29. The Court considers that, by delaying the enforcement of the judgment in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of much of their useful effect.", "30. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 31.", "The applicant next complained that she had no effective remedies in respect of her complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. She 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.” 32. The Government submitted that the applicant had an opportunity to challenge the liquidation commission’s inactivity before the Court of Arbitration and to lodge a claim with the domestic courts to challenge the inactivity of the Bailiffs, or to seek compensation for material and moral damage. 33.", "The Court notes that this complaint is linked to the one examined above and cannot, therefore, be declared inadmissible. 34. The Court refers to its findings (at paragraph 17 above) in the present case concerning the Government’s argument regarding domestic remedies. For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in enforcing the judgment debt. Accordingly, there has been a breach of this provision.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36. The applicant claimed UAH 6,000[2] in non-pecuniary damage.", "37. The Government stated that the applicant had not sustained any non-pecuniary damage susceptible to monetary compensation. 38. The Court takes the view 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 mere findings. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant’s claim in full, i.e.", "1,000 euros (EUR). B. Costs and expenses 39. The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award. C. Default interest 40.", "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 to the Convention; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 13 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléA.B. BakaRegistrarPresident [1].", "approximately 174 euros (EUR). [2]. approximately EUR 1,000." ]
[ "THIRD SECTION CASE OF TAKAK v. TURKEY (Application no. 30452/96) JUDGMENT STRASBOURG 1 April 2004 FINAL 07/07/2004 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 Takak v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President, MrI.", "Cabral Barreto,MrL. Caflisch,MrB. Zupančič,MrJ. Hedigan,MrsM. Tsatsa-Nikolovska, judges,MrF.", "Gölcüklü, ad hoc judge,and Mr V. Berger, Section Registrar, Having deliberated in private on 11 March 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30452/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Yüksel Takak (“the applicant”), on 15 November 1995. 2. The applicant was represented by Mr İ. Kavak, a lawyer practising in Izmir.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions. 3. The applicant alleged, in particular, that she was denied a fair hearing on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her and the limited jurisdiction of this court. She further alleged that her conviction had been based on her statements which she had withdrawn and that she had not been allowed to examine a witness against her. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 18 May 1999 the Court declared the application admissible. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed Third Section (Rule 52 § 1). 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "The applicant was born in 1966 and lives in Izmir, Turkey. 10. On 11 March 1994 the applicant was taken into custody by the officers from the Izmir Security Directorate Anti-Terror branch on suspicion of aiding and abetting an illegal terrorist organisation, the PKK. 11. On 17 March 1994 the applicant was brought before the judge at the Izmir State Security Court.", "Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at the Security Directorate. She further denied the testimony of a witness, A.A., against her. Subsequently, the court ordered her release on account of insufficient evidence to remand her in custody. 12. On 7 April 1994 the public prosecutor at the Izmir State Security Court filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Article 5 of Law no.", "3713 (the Prevention of Terrorism Act 1991 as amended) with aiding and abetting the PKK. 13. On 24 November 1994 the Izmir State Security Court convicted the applicant as charged and sentenced her to three years and nine months' imprisonment. She was further debarred from public service for three years. The court based its judgment on the following evidence: some ammunition found by the police, various weapons and the ballistics reports confirming the applicant's use thereof, invoices, a notebook used for recording expenditures of the PKK, photos of the applicant taken with some PKK militants, the statements made by the applicant at the Security Directorate, the statements made by S.A., A.A., M.T.", "and F.A. at the Security Directorate, the Public Prosecutor's office and before the court and finally the testimonies of T.T., N.F., A.O., H.K. and B.O., who were being tried by the same court for charges with other offences. 14. On 25 September 1995 the Court of Cassation upheld the Izmir State Security Court's judgment of 24 November 1994.", "15. On 1 November 1995 the Izmir chief public prosecutor suspended the execution of the applicant's sentence until 28 April 1996 as she had given birth. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no.", "42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 17. The applicant complains under Article 6 § 1 of the Convention that she was denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her.", "She further complains under the same heading that the Izmir State Security Court had limited jurisdiction and that it based its judgment on statements made by her which she had withdrawn. She finally submits under Article 6 § 3 (d) of the Convention that she was denied the right to examine one of the witnesses against her. 18. The Court notes that it examined similar cases in the past and found a violation of Article 6 § 1 (see Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003).", "19. The Court sees no reason to come to a conclusion different from that reached in these cases. It is reasonable that the applicant, who was prosecuted in a State Security Court for aiding and abetting an illegal organisation, should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, she could legitimately fear that the Izmir State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant's fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine).", "20. Accordingly, the Court concludes that there has been a violation of Article 6 § 1. 21. Having regard to its finding that the applicant's right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's other complaints under Article 6 §§ 1 and 3 (d) (see Incal, cited above, § 74, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 45). 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. Damages 23. The applicant claimed a total of 225,000 pounds sterling (GBP) for pecuniary and non-pecuniary damage, equivalent to 326,949 euros (EUR). 24.", "The Government did not submit any observations on these claims. 25. Regarding the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of the proceedings before the State Security Court might have been had the violation of the Convention not occurred (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, § 85). Moreover, the applicant's claim in respect of pecuniary damage was not borne out by any evidence. It is therefore inappropriate to award the applicant compensation for pecuniary damage.", "26. With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Çıraklar, cited above, § 49). 27. Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see Gençel, cited above, § 27). B.", "Costs and expenses 28. The applicant claimed a total of GBP 38,500, equivalent to EUR 55,944.70, for costs and expenses incurred in the proceedings before the domestic authorities and before the Strasbourg institutions. 29. The Government did not make any submissions on these claims. 30.", "The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see, as a recent authority, Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). 31. Making its own estimate based on the information available, the Court awards the applicant EUR 3,000 in respect of costs and expenses. C. Default interest 32.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the Izmir State Security Court; 2. Holds that it is not necessary to consider the applicant's other complaints under Article 6 of the Convention; 3. Holds that this finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of 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; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 1 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg Ress RegistrarPresident" ]
[ "FIFTH SECTION CASE OF STASZUK v. UKRAINE (Application no. 70840/10) JUDGMENT This version was rectified on 21 November 2017 under Rule 81 of the Rules of Court. STRASBOURG 5 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Staszuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President,Yonko Grozev,Gabriele Kucsko-Stadlmayer, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 12 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "70840/10) 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 Polish national, Mr Jan Michal Staszuk (“the applicant”), on 13 November 2010. 2. The applicant was represented by Mr S.V. Zakharov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.", "3. On 4 June 2015 the applicant’s complaints under Article 5 §§ 1, 3 and 4 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Polish Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1. They chose not to avail themselves of that right.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1985 and lives in Warsaw. 6. On 14 May 2010 the applicant was arrested in Kyiv by officers of the Security Service of Ukraine (“the SBU”) on suspicion of unlawfully importing equipment for the covert surveillance of telephone networks and using it to intercept private telephone conversations (see paragraph 24 below), an offence committed in collaboration with M., a Russian national.", "7. An SBU investigator lodged a request with the Shevchenkivskyy District Court of Kyiv (“the District Court”) seeking that the applicant be remanded in custody pending the investigation. He submitted that the applicant’s detention was necessary in order to prevent him from absconding and interfering with the investigation, given that the applicant was a foreign national, did not have a permanent place of residence in Ukraine and was suspected of a serious offence. 8. On 17 May 2010 the District Court held a hearing in the presence of the prosecutor and his lawyer, remanded the applicant in custody, and ordered that he be placed in an SBU detention facility.", "It held that the arguments submitted by the investigator were sufficiently strong to allow the conclusion that the applicant should be detained. 9. On 27 May 2010 the Court of Appeal held a hearing to examine the applicant lawyer’s appeal against the order of 17 May 2010 in the presence of a prosecutor and the applicant’s lawyer and upheld the order. 10. On 13 July 2010 the District Court held a hearing in the presence of the prosecutor, the applicant and his lawyer and extended the applicant’s detention until 14 September 2010.", "It noted that there were no reasons to release the applicant and that the investigative authority needed time to complete the investigation. 11. On 26 July and 6 August 2010 the Court of Appeal held hearings to examine, respectively, the applicant lawyer’s and the applicant’s own appeals against the District Court’s decision of 13 July 2010. Only a prosecutor was present at the former hearing, whereas the latter hearing was attended by the prosecutor, the applicant and his lawyer. The Court of Appeal rejected both appeals and upheld the District Court’s decision on both occasions.", "12. On 9 September 2010 the Court of Appeal held a hearing in the presence of the prosecutor and the applicant’s lawyer, granted the investigative authority’s request, and extended the applicant’s detention until 14 November 2010. The court noted that the charges against the applicant were serious, that there were no reasons to release him and that the investigative authority needed more time to complete the investigation. 13. On 1 November 2010 the investigator charged the applicant with several additional offences in connection with the same events: breaching the privacy of telephone communications and unlawful transfer of equipment subject to export control, committed in a group (see paragraph 24 below).", "14. On 12 November 2010 the Court of Appeal extended the applicant’s detention until 14 December 2010. 15. On 14 December 2010 the applicant’s case was sent to the District Court for trial. 16.", "On 27 April 2011 the District Court committed the applicant for trial, rejected the applicant’s request for release and ordered his continuing detention pending trial. The court stated that the applicant was charged with a serious offence, was a foreign national and had no permanent place of residence in Ukraine. No time-limit was set for his detention. 17. On 25 August 2011 the District Court rejected the applicant’s requests for release.", "It gave reasons similar to those given in its decision of 27 April 2011 and added that there was no reason to set an end-date for the applicant’s detention since his detention was needed to complete the trial. 18. On 14 October, 24 November 2011, and 11 January 2012 the District Court rejected the applicant’s further requests for release. It gave reasons similar to those given in its decision of 27 April 2011. 19.", "On 19 March 2012 the District Court convicted the applicant as charged, sentencing him to four years’ imprisonment. 20. On 7 December 2012 the Court of Appeal quashed the conviction and remitted the case for additional investigation. It ordered the applicant’s continuing detention without giving reasons. 21.", "On 15 January 2013 the District Court set bail for the applicant. 22. On 16 January 2013 the applicant was released on bail. 23. On 17 May 2013 the District Court approved the applicant’s plea bargain, convicted him, and sentenced him to two years and eight months’ imprisonment, which was to be considered fully served in view of the time the applicant had spent in pre-trial detention.", "II. RELEVANT DOMESTIC LAW 24. Article 163 § 2 of the Criminal Code makes breaching the privacy of telephone communications, if committed using special equipment for covert surveillance, punishable by three to seven years’ imprisonment. Article 359 § 2 of the Code makes unlawful use of equipment for covert surveillance of telephone networks committed in a group punishable by four to seven years’ imprisonment. Article 333 § 1 of the Code makes unlawful transfer of equipment subject to export control punishable by a fine or by up to three years’ of restriction of liberty (i.e.", "detention in a semi-open institution) or by imprisonment for the same term with or without a prohibition on the right to occupy certain positions or engage in certain activities for the term of up to three years. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 25. The applicant complained that his detention between 14 December 2010 and 27 April 2011 and between 27 April 2011 and 19 March 2012 had not been lawful and that his detention in the course of pre-trial investigation and trial had been unreasonably lengthy. He relied on Article 5 §§ 1 and 3 of the Convention which read as follows in the relevant part: “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 ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The Government disagreed and submitted that there had been no violation of the above provisions. [1] A. Admissibility 26.", "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.", "Article 5 § 1 27. The Court observes that between 14 December 2010 and 27 April 2011 there was no court order authorising the applicant’s detention and that from 27 April 2011 to 19 March 2012 the applicant’s detention was based on a legislative framework which did not require the courts to provide any grounds for detention or to set a time-limit for it, and indeed, no-time limit had been set in the applicant’s case. The Court has dealt with similar situations in the past and found that such practice was incompatible with the requirement of lawfulness enshrined in Article 5 § 1 (see Kharchenko v. Ukraine, no. 40107/02, §§ 70-76, 98, 10 February 2011). It does not see any reason to depart from that conclusion in the present case.", "28. The Court finds, accordingly, that there has been a violation of Article 5 § 1 of the Convention. 2. Article 5 § 3 29. 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 recently summarised in Buzadji v. the Republic of Moldova ([GC], no.", "23755/07, §§ 87-91, ECHR 2016 (extracts)). 30. The applicant’s detention to be taken into account for the purposes of Article 5 § 3 lasted between 14 May 2010 and 19 March 2012 and between 7 December 2012 and 16 January 2013, that is more than one year and eleven months overall which is not short in absolute terms (see, for example, Iłowiecki v. Poland, no. 27504/95, § 52, 4 October 2001, and Doronin v. Ukraine, no. 16505/02, § 61, 19 February 2009).", "31. The Court notes that the suspicion that the applicant had committed a serious offence and the danger of the applicant, a foreigner with no established residence in Ukraine, absconding might have initially justified his detention (see Van der Tang v. Spain, 13 July 1995, §§ 64-67, Series A no. 321). However, those reasons did not evolve with the passage of time and the domestic courts, in extending detention, relied on repetitive formulae without referring to specific circumstances of the applicant’s case. Moreover, on 7 December 2012 the Court of Appeal gave no reasons whatsoever for the applicant’s continuing detention (see paragraph 20 above).", "32. In a number of cases (see, for example, Tretyakov v. Ukraine, no. 16698/05, § 59, 29 September 2011, and Rudnichenko v. Ukraine, no. 2775/07, § 81, 11 July 2013), including the leading case of Kharchenko (cited above, § 99) the Court already found violations of Article 5 § 3 in respect of issues similar to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case.", "33. There has, therefore, been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 34. The applicant complained that he and his lawyer had not been duly informed about certain hearings of the Court of Appeal at which matters relating to the applicant’s pre-trial detention were decided.", "35. The Court − being master of the characterisation to be given in law to the facts of the case, and having regard to the substance of the applicant’s complaints − decides to examine them under Article 5 § 4 of the Convention (see Navarra v. France, 23 November 1993, § 28, Series A no. 273‑B). Article 5 § 4 of the Convention reads: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.", "The parties’ submissions 36. On his application form the applicant complained that he and his lawyer had not been informed about the hearings of the Court of Appeal held on 27 May, 26 July and 9 September 2010. 37. The Government submitted that the applicant was either present personally or represented by a lawyer at the hearings of 27 May, 6 August and 9 September 2010. For the Government, this demonstrated that they had been duly informed of the hearings.", "38. The applicant did not submit any observations in response to those of the Government. B. The Court’s assessment 39. The applicant limited his submissions to asserting that neither he nor his lawyer was informed of the above-mentioned hearings.", "He did not explain specifically how this prejudiced his rights under Article 5 § 4. As far as the applicant’s lawyer is concerned, he was in fact present at the hearings of 27 May, 6 August and 9 September 2010. Moreover, the applicant himself was present at the hearing of 6 August 2010. Accordingly, no arguable issue under Article 5 § 4 arises in those respects. 40.", "To the extent that the applicant may be understood to be arguing that his personal presence was required at the hearings of 27 May and 9 September 2010, the Court notes that those hearings followed shortly the hearings of 17 May 2010 and 6 August 2010 at which the applicant was present and assisted by a lawyer. The applicant did not show that he wished to present at those subsequent hearings new arguments, in particular arguments related to his personal circumstances, which were not examined at earlier hearings (contrast, for example, Christodoulou and Others v. Greece, no. 80452/12, § 77, 5 June 2014). Since the applicant was represented at all the hearings in question, no equality of arms issue arises either. Accordingly, even accepting the applicant’s allegation that he was not duly summoned to the hearings of 27 May and 9 September 2010, the applicant has not made an arguable case that Article 5 § 4 has been breached due to his personal absence from the hearings of 27 May and 9 September 2010 (see Depa v. Poland, no.", "62324/00, §§ 48 and 49, 12 December 2006, and Altınok v. Turkey, no. 31610/08, §§ 54 and 55, 29 November 2011). 41. It is true that the applicant was neither present nor represented at the hearing of 26 July 2010 and the Government have not specifically rebutted the applicant’s allegation that the applicant and his lawyer had not been properly summoned to that hearing. However, the Court of Appeal examined the same question, namely conducted a review of the first-instance court’s detention order of 13 July 2010, on 6 August 2010 in the presence of both the applicant and his lawyer.", "It appears that the only substantive difference was that on 26 July the Court of Appeal examined the applicant’s lawyer’s appeal while on 6 August 2010 it examined an appeal lodged by the applicant himself. The applicant did not allege that there was any breach of his rights at the 6 August hearing, did not explain what the difference between the two appeals was, or why he had lodged an appeal separately from his lawyer. Neither did he provide any other explanation as to why he believed that his rights had been prejudiced in such circumstances. The Court therefore considers that this complaint is not sufficiently developed nor substantiated. 42.", "Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 44.", "The applicant claimed compensation in respect of non-pecuniary damage but left the determination of the amount to the Court’s discretion. 45. The Government maintained that there had been no violation of the applicant’s rights in the present case. [2] 46. The Court, ruling on an equitable basis, awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.", "B. Costs and expenses 47. The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 48.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 5 §§ 1 and 3 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention; 3. Holds that there has been a violation of Article 5 § 3 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 5 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginErik MøseActing Deputy RegistrarPresident [1]. Rectified on 21 November 2017: This sentence was added. [2].", "Rectified on 21 November 2017: “did not comment” was replaced with “maintained that there had been no violation of the applicant’s rights in the present case”." ]
[ "FIRST SECTION CASE OF ISTRATOV v. RUSSIA (Application no. 28505/09) JUDGMENT STRASBOURG 16 October 2014 This judgment is final but it may be subject to editorial revision. In the case of Istratov v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Erik Møse,Dmitry Dedov, judges,and Søren Prebensen, Acting Deputy Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 28505/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Nikolayevich Istratov (“the applicant”), on 21 April 2009.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 13 April 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1982 and lived in Novocheboksarsk before the arrest. A. Conditions of detention 5. On 20 November 2008 the applicant was remanded in custody on suspicion of rape.", "6. Between 22 November 2008 and 7 September 2009 the applicant was held in remand prison IZ-77/3 in Moscow. The parties submitted differing information about the material conditions of his detention. 7. The applicant claimed that the facility was overcrowded.", "Cell 517, in which he stayed throughout his detention, measured 24 sq. m and accommodated up to twelve inmates. Walls were mouldy and the lavatory pan was not separated from the rest of the cell. Ventilation did not function; no toiletries were distributed and the bedding was ragged. The food was of low quality.", "The detainees were allowed to take a shower only once per week. In support of his allegations, the applicant submitted two identically‑worded statements by his cellmates, who – without further detail – declared that they “fully support[ed] Mr Istratov’s complaint to the European Court”. 8. The Government submitted a number of certificates issued by the director of remand prison IZ-77/3 on 18 June 2012, which demonstrated that the applicant was held in four cells having the following characteristics: It follows from the certificates that the applicant was provided with bedding and toiletries and afforded daily one-hour-long outdoor exercise, a weekly shower and access to washing facilities. There was forced ventilation and artificial lighting in the cells.", "In addition, the windows were not covered by shutters, allowing natural light to penetrate into the cells, and were equipped with a small opening pane that provided access to fresh air. Lavatory pans were separated from the rest of the cells by a brick partition and were located two metres away from dining tables. In addition, all four cells were equipped with a water tap with hot and cold running water. Heating was provided during the winter season. 9.", "The Governement also submitted copies of the prison population register which covered two weeks out of each month during the period of the applicant’s detention and presented the following information about the numbers of sleeping places in the cells and their actual occupancy: 10. It appears that the applicant complained to the Moscow city prosecutor about the conditions of his detention. In his reply of 14 December 2010 the prosecutor acknowledged that “not every detainee was afforded the [statutory] standard of four square metres due to overpopulation of the prison”. 11. Some time later the applicant brought a civil claim for compensation in connection with inadequate conditions of detention in remand prison IZ‑77/3.", "On 7 June 2012, the Khoroshevskiy District Court of Moscow examined the claim and held that: “According to a prison population certificate issued by the director of remand prison IZ-3 of Moscow, cell 608 measures 34.02 sq. m and is equipped with 12 sleeping places. Cell 207 measures 31.17 sq. m and is equipped with 14 sleeping places. Cell 517 measures 37.75 sq.", "m and is equipped with 12 sleeping places and cell 510 measures 13.45 sq. m and is equipped with 4 sleeping places. It follows from the case file that Mr Istratov was always provided with a separate sleeping place and that the number of detainees never exceeded that of sleeping places. ... It was established ... that the applicant’s argument about the overpopulation of the cells he had been held in, [affording as a result] less than 4 sq.", "m per person, had been substantiated. However, considering that Mr Istratov did not complain that he had been afforded personal space below the sanitary standard (4 sq. m) ... and was always provided with a separate sleeping place ... the court considers it appropriate to reject Mr Istratov’s claim.” B. Criminal proceedings 12. On 12 May 2009 the Khoroshevskiy District Court of Moscow found the applicant guilty and gave him a custodial sentence.", "The applicant appealed, complaining about an erroneous interpretation of law and improper assessment of evidence by the District Court. 13. On 12 August 2009 the Moscow City Court upheld the conviction on appeal. II. PROCEDURE BEFORE THE COURT 14.", "On 21 April 2009 the applicant lodged the first letter with the Court, briefly stating that he was detained in remand prison IZ-77/3 of Moscow, that his Convention rights were violated, and asking the Court for an application form. 15. By letter of 29 May 2009 the Registry sent the application form to the applicant, requesting to return it by 24 July 2009 at the latest and informing him that failure to comply with the instruction could have impact on the date of introduction of the complaint. 16. On 4 December 2009 the applicant submitted the completed application form which reached the Registry on 7 January 2010.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 17. The applicant complained that the conditions of his detention in remand prison IZ-77/3 of Moscow between 22 November 2008 and 7 September 2009 violated Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 18. With reference to various provisions of the Rules of Court and the Practice Direction on Institution of Proceedings, the Government alleged that the application form had been lodged after a long delay and that its date of posting, rather than that of the applicant’s first letter, should be taken as the date of introduction of the case. In their view, that fact had an impact on the admissibility of the complaint, in particular as regards the six-month time-limit set by Article 35 § 1 of the Convention.", "19. The applicant did not comment. 20. The Court observes that the application form was posted on 4 December 2009, that is within six months from 7 September 2009, when the applicant had left the remand prison, the starting date of the six-month time-limit. The Court concludes that even if it were to accept the Government’s argument, the applicant’s complaint is not out of time for the purposes of Article 35 § 1 of the Convention.", "21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Establishment of facts 22. The applicant was held in the Moscow remand prison IZ-77/3 between 22 November 2008 and 7 September 2009, that is nine months and fifteen days. 23. The Court observes that the Government submitted a large number of documents concerning various aspects of the applicant’s detention. Of particular importance is the prison population register, an original document which was prepared during the period of the applicant’s stay in the prison and covered a large part of the detention.", "The documents showed that the applicant had been detained in cells 608, 207, 517 and 510, which measured around 34, 32, 37 and 13 sq. m, respectively. 24. The Court however notes that the documents, including the certificates by the director of the prison, the prison population register and the domestic judgments, variously indicated the number of sleeping places and the actual occupancy of the cells (see paragraphs 8, 9 and 11 above). 25.", "Nevertheless, the Court finds that, even considering the highest occupancy figures, the applicant was afforded around 4 sq. m of personal space and that there was no shortage of sleeping places during the period under examination. 26. As to the findings of the domestic authorities regarding the lack of personal space (see paragraphs 10 and 11 above), the Court observes that the prosecutor’s reply referred to the remand prison in general, rather than to the applicant’s personal situation, whereas the domestic judgment did not indicate the actual occupancy of the cells and it is not clear from it why such conclusion was reached. 27.", "The applicant’s submissions differed from those of the Government in every aspect save for the number of one cell. Although they were sufficiently detailed, the only evidence corroborating them were the cellmates’ statements, which contained general assertions without references to concrete details (see paragraph 7 above). Moreover, the Court notes that the factual information provided by the Government was not contested by the applicant in his observations in reply. For these reasons, the Court lends credence to the Government’s submissions. C. Compliance with Article 3 28.", "The Court found it established that the applicant had been provided with around four square metres of floor surface and disposed of his own sleeping place. It cannot be said that the dimensions of his cells were so small as to restrict the applicant’s freedom of movement (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143-148, 10 January 2012). 29. It also appears that the applicant was allowed a one-hour outdoor exercise daily.", "Windows were not fitted with metal shutters preventing natural light and fresh air from penetrating into the cells. The cells were additionally equipped with artificial lighting and forced ventilation. 30. The Court observes that the lavatory pans, the dining tables and the sleeping places were all located within the cells, but at a sufficient distance from each other. Brick partitions separated the toilets from the rest of the cells.", "Hot and cold running water was available to detainees and the applicant had regular access to shower and washing facilities. 31. Taking into account the cumulative effect of those conditions, the Court considers that the conditions of the applicant’s detention in remand prison IZ-77/3 of Moscow between 22 November 2008 and 7 September 2009 cannot be regarded as inhuman or degrading. There has been therefore no violation of Article 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 32. The applicant further complained that he did not dispose of an effective domestic remedy for his grievance concerning the inhuman conditions of detention, as required by Article 13 of the Convention, which provides that: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 33. The Government, with reference to the Court’s judgment of Ananyev and Others v. Russia (cited above) acknowledged the absence of such remedies, but submitted that the applicant was not a victim of the violation since he did not attempt to raise the issue at the domestic level. 34. The applicant did not submit any specific comments.", "35. The Court observes that the applicant complained about the conditions of his pre-trial detention to the prosecutor and tried to obtain redress in the Russian courts (see paragraphs 10 and 11 above). Accordingly, it rejects the Government’s objection. 36. Taking into account the Court’s findings in the Ananyev and Others judgment (cited above, §§ 93-118), it considers that the applicant did not have at his disposal an effective domestic remedy for his complaints, in breach of Article 13 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 37. The applicant also complained that he could not adequately prepare for the trial because of poor conditions of his detention. The Court notes that the applicant did not raise that complaint before the courts during the criminal proceedings against him. It follows that the complaint is inadmissible due to non-exhaustion of domestic remedies in accordance with Article 35 § 1 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant claimed 15,840 euros in respect of non-pecuniary damage.", "40. The Government did not comment. 41. The Court has found a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy for the applicant’s complaint about the conditions of his pre-trial detention. 42.", "In these circumstances, the Court considers that the finding of a violation constitutes sufficient just satisfaction (see Ananyev and Others v. Russia, cited above, § 173). Accordingly, it rejects the applicant’s claims in respect of non-pecuniary damage. B. Costs and expenses 43. The applicant did not claim any costs and expenses incurred either before the domestic courts or the Court.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning the conditions of the applicant’s pre‑trial detention and the lack of an effective domestic remedy in that regard admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that the finding of a violation constitutes sufficient just satisfaction; 5.", "Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren PrebensenKhanlar HajiyevActing Deputy RegistrarPresident" ]
[ "SECOND SECTION CASE OF WALCH v. HUNGARY (Application no. 13711/09) JUDGMENT STRASBOURG 25 March 2014 This judgment is final but it may be subject to editorial revision. In the case of Walch 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. 13711/09) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Walch (“the applicant”), on 2 March 2009.", "2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3. On 9 April 2013 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1961 and lives in Budapest. 5. In August 2006 the applicant brought an action for unlawful dismissal and damages before the Pest County Labour Court. It appears that after a first- and a second-instance judgment, on 17 September 2013 the Kúria gave final judgment in respect of part of the claims and remitted the remainder to the first-instance court. In that respect the case is still pending.", "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 in August 2006 and has not yet ended. It has thus lasted over seven and a half years to date. In view of such lengthy proceedings, this complaint must be declared admissible. 9. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230-D). 10. 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).", "11. 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. 12.", "The applicant also complained about the manner in which the courts have handled his case and about the decisions taken so far. He relied on Articles 6 § 1, 8, 13 and 14 of the Convention. The Court notes that part of the case is still pending before the first-instance court. In that regard, the complaint is premature. Moreover, the Court is satisfied that the applicant’s other complaints do not disclose any appearance of a violation of the Convention rights invoked.", "It follows that this part of the application must be rejected, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention. 13. Relying on Article 41 of the Convention, the applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage sustained on account of the protraction of the proceedings. The Government contested the claim. 14.", "The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards him EUR 2,300 under that head. 15. The applicant also claimed EUR 150 for the costs and expenses incurred before the Court. 16.", "The Government did not express an opinion on the matter. 17. 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. 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 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 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 KASTELIC v. SLOVENIA (Application no. 25326/11) JUDGMENT STRASBOURG 19 June 2014 This judgment is final but it may be subject to editorial revision. In the case of Kastelic v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Ann Power-Forde, President,Boštjan M. Zupančič,Helena Jäderblom, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 27 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25326/11) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Lilijana Kastelic (“the applicant”), on 12 April 2011.", "2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney. 3. On 30 August 2013 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1962 and lives in Ljubljana. 5. The facts of the case, as submitted by the applicant, may be summarised as follows. 6.", "On 2 September 2009 the applicant stopped her car on the road in front of a school to let her children get out of the car. At that time, during a regular control, police officer S. found that the applicant had failed to use the seat-belt. The next day, the applicant allegedly approached S. and started insulting her. S. asked the applicant to follow her to the police station but the applicant refused to do so. Then S. requested the applicant to present her identity card which the applicant also refused to do.", "On the same day, S. issued a penalty notice against the applicant for not using the seat-belt, indecent behaviour, failure to comply with a public official’s lawful order and failure to submit identity papers. The fine amounted to 991.12 euros (EUR). 7. On 22 October 2009 the applicant filed a request for judicial review in which she submitted that on 3 September 2009 she was at home and she was not the person that S. dealt with. 8.", "On 15 September 2010 the Ljubljana Local Court heard S. According to the applicant, she was not informed of the hearing. 9. On 16 September 2010 the Local Court rejected the request for judicial review on the basis of S.’s statement. Moreover, it held that the applicant had failed to submit any evidence in support of her application. 10.", "On 11 October 2010 the applicant lodged a constitutional appeal challenging the Local Court’s findings of fact. Moreover, she complained that she had not been heard. 11. On 2 November 2010 the Constitutional Court rejected the applicant’s constitutional appeal as inadmissible. II.", "RELEVANT DOMESTIC LAW 12. For the relevant provisions of the Minor Offences Act (hereinafter “the MOA”) and the Constitutional Court Act, see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011) and Flisar v. Slovenia (no. 3127/09, §§ 13-18, 29 September 2011). 13.", "Section 169 of the MOA provides: “(1) A request for protection of legality may be filed against any decision issued at the second instance or against any final decision, if this Act or regulation governing minor offences has been violated. (2) A request for protection of legality may be filed by a public prosecutor ex officio or at the initiative of a person who has the right to appeal against a minor offence judgment issued by a court of first instance.” 14. On 13 March 2011 Section 65 of the MOA was amended to the effect that the court shall inform the offender of its intention to repeat or supplement the evidence-taking procedure. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15.", "The applicant complained about the lack of fair trial before the Local Court provided in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ... ...” 16. The Government contested that argument. A. Admissibility 17. Firstly, the Government objected that the applicant had failed to exhaust domestic remedies.", "According to them the applicant should have proposed the State Prosecutor to lodge a request for protection of legality under Section 169 of the Minor Offences Act which could have achieved the modification of the contested decision. 18. The applicant did not contest this argument. 19. The Court observes that the proposal to lodge a request for protection of legality could not be regarded as an effective remedy because it was not open to the applicant to complain directly to the court and it depended on the discretion of the Supreme State Prosecutor (see Tănase v. Moldova [GC], no.", "7/08, § 122, ECHR 2010; and, mutatis mutandis, Jankovec v. Slovenia (dec.), nos. 8032/06, 8040/06, 19253/06, 7 September 2010). 20. Secondly, the Government argued that prior to the amendment of the MOA the Local Court was obliged neither to hear an offender nor to inform him or her of the production of evidence. Accordingly, if the applicant considered that the previous regulation was unconstitutional, she should have filed an initiative for the review of constitutionality of the MOA before the Constitutional Court.", "21. The applicant did not contest this argument. 22. The Court notes that according to the MOA, as applicable at the relevant time, the hearings in minor offences cases were held at the judge’s discretion. The Court has previously held that such a system could not be regarded to be per se incompatible with the guarantees enshrined in Article 6 (see Suhadolc v. Slovenia, cited above).", "The Court notes that in her constitutional appeal, the applicant did not challenge the relevant statutory provision, but rather the manner in which the rule was applied in her case. She considered that in view of the factual questions raised in her judicial review she should have had a hearing. In this regard, it does not appear that this complaint could not be appropriately addressed in the constitutional appeal, the remedy which the applicant used in order to obtain redress for the alleged breach of her right to a fair trial (see Bradeško and Rutar Marketing v. Slovenia (dec.), no. 6781/09, §§ 16-18, 7 May 2013). Having regard to this, the Court considers that the applicant was not required also to attempt to obtain redress by initiating the review of constitutionality of the statutory provision granting the judges the power to decide whether or not to hold an oral hearing.", "23. In the light of the foregoing considerations, the objection of non-exhaustion of domestic remedies made by the Government should be rejected. 24. The Court finds 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 25. The applicant complained that she was found guilty of a minor offence without a public hearing, she was not heard and she was not able to submit any evidence on her behalf. 26.", "The Government contested this allegation. According to them the MOA in force at the relevant time gave the judge discretionary power to decide whether to hold a hearing or not on the basis of the arguments and evidence proposed by the applicant. In her request for judicial review the applicant failed to request a hearing. Nor did she propose other evidence. The Government were of the view that the allegations submitted by the applicant were of a general nature and did not call for a hearing.", "Moreover, according to them the Local Court assessed the police officer’s statement as credible and trustworthy. In this regard, the applicant failed to submit any evidence that might have shown that she had not committed the minor offence. In the proceedings involving requests for judicial review the reversed burden of proof applies. Thus, the applicant should have indicated specifically what evidence was to be produced and what she sought to prove through the production of such evidence. It was not the court’s duty to look for exonerating evidence.", "27. The Court notes that the present case is similar to Flisar v. Slovenia (cited above, §§ 33-39) which concerned a conviction for offences against public order on the basis of the case-file forwarded by the police. In that case, the applicant did not request an oral hearing; however, he challenged certain factual aspects of the case which called for direct assessment of the evidence at an oral hearing. In the present case, the Court notes that the applicant requested judicial review alleging that she was not the person that verbally assaulted police officer S. Thus she contested the facts established by S. The Local Court, however, heard only S. Therefore, regardless of the fact that the applicant did not request a hearing the Court is of the view that the Local Court could not, as a matter of fair trial, have properly determined the facts or the applicant’s guilt without a direct assessment of the evidence at an oral hearing. 28.", "In view of the foregoing, 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 well-established case-law on the subject, the Court considers that there has been a violation of Article 6 § 1of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 30. The applicant claimed EUR 18,000 in respect of pecuniary and non-pecuniary damage. 31. The Government argued that, considering the circumstances of the case, a judgment of the Court establishing a violation would in itself constitute sufficient just satisfaction. 32.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. 33. In respect of non-pecuniary damage, the Court considers that the finding of a violation is, in itself, sufficient just satisfaction for the purposes of Article 41 of the Convention (see Mesesnel v. Slovenia, no. 22163/08, § 44, 28 February 2013).", "B. Costs and expenses 34. The applicant made no claim under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that the finding of violation is sufficient just satisfaction for any non-pecuniary damage suffered by the applicant; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsAnn Power-FordeDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF LADA v. UKRAINE (Application no. 32392/07) JUDGMENT STRASBOURG 6 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Lada v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President,Carlo Ranzoni,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 16 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32392/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Leonid Andreyevich Lada (“the applicant”), on 17 July 2007.", "2. The applicant was represented by Mr Kushnirenko, a lawyer practising in Kolonchak. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice of Ukraine. 3. The applicant alleged, in particular, that his deprivation of liberty had been unlawful, that his detention conditions had been poor and that his right to the presumption of innocence had been breached.", "4. On 2 January 2012 the application was communicated to the Government. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Khorly. A. Criminal proceedings against the applicant and his pre-trial detention 6. At the material time the applicant was the head of Khorly Village Council.", "7. On 8 May 2007 he signed a permit allowing a businessman, Ya., to set up a tent with game machines in the village. This permit had no official stamp on it. According to the applicant, it was not stamped because the council’s accountant was away on a work matter and had the stamp with her. However, according to the court findings in the criminal case against the applicant (see below), the applicant told Ya.", "that the permit would be stamped upon receipt of 20,000 Ukrainian hryvnias (UAH – approximately 3,800 euros (EUR)). 8. On 14 May 2007 Ya. complained to the police. On the same day he was given audio and video-recording equipment and marked banknotes.", "When he entered the applicant’s office the applicant showed him a piece of paper with something written on it, pointed to the bus stop outside his window and said “There is a man out there”. Ya. went to the bus stop and gave money to V., who was standing there. Later, police officers seized the marked banknotes from V. in the presence of I. and L. 9. On the same day criminal proceedings were instituted against the applicant for requesting a bribe.", "10. At 7 p.m. on 14 May 2007 the applicant was arrested. 11. On 16 May 2007 the applicant was charged with taking a bribe. 12.", "On 17 May 2007 the Komsomolskiy District Court (“the District Court”) authorised the applicant’s custody until 24 May 2007. The court held that there was no information about the applicant’s previous convictions, if any, or his family situation, state of health and so on; therefore the court “could not authorise a preventive measure, such as pre-trial detention”. That decision was not open to appeal. 13. On 22 May 2007 the District Court remanded the applicant in pre-trial detention, since he had been accused of a serious crime and might abscond, hinder the investigation or continue his criminal activity.", "14. The applicant appealed. His lawyer indicated that, when requesting that the applicant be remanded in custody, the prosecutor’s office had failed to comply with the court decision of 17 May 2007 (see paragraph 12 above), and had submitted only documents referring to the absence of previous convictions and the applicant’s satisfactory state of health. The lawyer further argued that the applicant had not committed any crime, there were no indications that he would abscond or hinder the investigation, his state of health was not satisfactory, and that council members and village inhabitants had signed a petition for his release. 15.", "On 1 June 2007 the Kherson Regional Court of Appeal upheld the decision of 22 May 2007 (see paragraph 13 above). The court noted that the case file contained material confirming the applicant’s wish “to go to Russia to his brother”. It also noted that he might hinder the investigation by using his official position. 16. On 27 July 2007 the District Court released the applicant on bail.", "17. On 16 January 2008 the District Court again remanded the applicant in pre-trial detention at the prosecutor’s request. The relevant decision reads as follows: “On 16 January 2008 the Komsomolskiy District Court of Kerson ... established: The criminal case concerning the accusation of [the applicant] under Article 368 paragraph 2 of the Criminal Code of Ukraine is pending before the Komsomolskiy District Court of Kherson. The prosecutor requested that the preventive measure against [the applicant] be changed in view of the fact that [the applicant], using publications in ... newspaper, is putting pressure on witnesses in the case (K. and A.) who have not yet been questioned by the trial court.", "[This] could affect the truthfulness of their testimony and their appearance before the court. In the hearing, the prosecutor further provided additional evidence to confirm the fact of [the applicant’s] putting pressure on I., a witness, and the victim, Ya. Having heard the prosecutor’s explanations, as well as [the applicant] and his lawyers, the court finds that the application has to be allowed on the following grounds. [The applicant] is accused of having committed a crime under Article 386 paragraph 2 of the Criminal Code of Ukraine. The sanction established for the crime is imprisonment for the period from five to nine years.", "On 27 July 2007 bail ... was chosen as a preventive measure in respect of [the applicant]. Pursuant to Article 148 of the Code of Criminal Procedure, preventive measures shall be applied to a defendant with the aim of preventing attempts ... to obstruct the truth from being established in a criminal case. ... Preventive measures shall be applied if there are sufficient grounds to consider that the defendant will try to abscond from the trial or obstruct the truth from being established in a case. [The applicant] has no criminal record, has committed a serious crime linked to his professional activity as the head of Khorol Village Council, is currently removed from his position and accordingly is not able to continue his criminal activity, [and] is well thought of at his place of work and place of residence. However, the court believes that [the applicant], acting through unidentified individuals, has taken steps aimed at obstructing the truth from being established in the case in the course of the court’s consideration of his case.", "Thus, according to statements of 28 December 2007 made by the victim, Ya., and I., a witness, unknown individuals acting on [the applicant’s] behalf, have put psychological pressure on them, trying to prevent their appearing at the hearing of 29 December 2007. The above-mentioned fact is evidence of a breach by [the applicant] of his undertakings. Bearing in mind that the court proceedings in the criminal case are still ongoing, that K. and A., witnesses, have not yet been questioned, and that there may be a need for additional questioning of I., a witness, and Ya., the victim, the court believes that the prosecutor’s application is well-founded and should be granted in order to prevent further possible pressure [being put] on the witnesses and the victim, and thus to eliminate obstacles to establishing the truth in the case ... Given what has been stated above, ... the court rules to change the preventive measure in respect of [the applicant] ... ” 18. On the same date the President of the District Court rejected an application by the applicant’s lawyer for the judge who was dealing with the case to be withdrawn on the basis of bias.", "He held that the expression “has committed a serious crime” used by the court concerned “the classification of the offence of which the applicant was accused”, and did not mean that the court was biased. 19. On 23 January 2008 the Kherson Regional Court of Appeal refused the applicant leave to appeal against the decision of 16 January 2008 remanding him in pre-trial detention (see paragraph 17 above), since that decision was not open to appeal. 20. On 15 and 22 February 2008 the applicant unsuccessfully asked the court to change the preventive measure to a non-custodial one.", "21. On 29 February 2008 the District Court released the applicant on bail. It found that Ya. and I. had complained on 28 December 2007 to the police that that they had been threatened by individuals unknown to them. However, by 29 February 2008 no further investigation of this allegation had been carried out by the police, so it was decided that the applicant should be released.", "22. On 16 April 2008 the District Court sentenced the applicant to five years’ imprisonment for taking a bribe. The applicant appealed, arguing, inter alia, that the principle of the presumption of innocence had been breached in his case. 23. On 24 June 2008 the Kherson Regional Court of Appeal upheld the District Court’s judgment.", "24. On 26 February 2009 the Supreme Court of Ukraine rejected an appeal by the applicant on points of law. B. Conditions of the applicant’s detention 25. The applicant served his sentence at Dariyivska Correctional Colony no.", "10 (“the prison”) from 16 July 2008 to 14 March 2011. According to the applicant, there were up to ninety inmates in the living quarters. There was no ventilation. The washing facilities were situated in the basement, which was constantly flooded by underground water. There were five basins and three taps for 300 detainees.", "There was no electricity or light at night. The food was of a very low quality and the water was undrinkable. 26. According to the Government, the applicant was held in a block which measured 271.7 square metres and was designed to accommodate up to ninety prisoners, thus each prisoner had no less than 3 square metres of personal space. They did not provide any facts or comments with respect to the remainder of the applicant’s complaint.", "II. RELEVANT DOMESTIC LAW 27. The relevant provisions of the Code of Criminal Procedure of 1960 (as worded at the material time) read as follows: Article 147Suspension of the accused from office “Whenever an official is prosecuted for an official crime, and when such a person is prosecuted for another [type of] crime, and if he or she could negatively affect the course of a pre-trial investigation or judicial investigation, the investigator is required to suspend him or her from office and give a reasoned decision on [that matter]. ...” Article 148The aim of and grounds for applying preventive measures “Preventive measures shall be applied in respect of a suspect, accused, defendant or convicted person with the aim of preventing attempts to abscond from an investigation or trial, to obstruct the truth from being established in a criminal case, or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convicted person will try to abscond from the investigation or trial, evade complying with procedural decisions, obstruct the truth from being established in a criminal case, or pursue criminal activities.", "...” Article 150Circumstances to be taken into account in choosing a preventive measure “In deciding on the application of a preventive measure, in addition to the circumstances specified in Article 148 of the Code, circumstances such as the gravity of the crime of which the person is suspected or with which he is charged, his age, state of health, family and financial status, occupation, place of residence and other circumstances relating to the person shall be taken into consideration.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28. The applicant complained that the conditions of his detention in prison were incompatible with Article 3 of the Convention. The provision at issue reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 29. The Government submitted that the applicant had failed to exhaust the domestic remedies in respect of the above complaint.", "In particular, he could have raised his complaints before the prison authorities, the prosecutor or the administrative court. 30. The applicant stated that he had been precluded from lodging any complaint, as he had been “warned” that if he made a complaint then drugs would be secretly planted on his son and the latter would go to jail. He had also witnessed the treatment to which prisoners who made complaints were subjected. 31.", "The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case in a number of other cases, where the complaints concerned problems of a structural nature in the domestic prison system in question (see, for example, Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009, and Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010). The Government provided no information which would enable the Court to depart from those findings in the present case, and therefore it considers that this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies. It 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 32. The Government referred to their factual submission (see paragraph 26 above) and stated that domestic standard of 3 square metres per prisoner had been respected in the applicant’s case, and thus the applicant’s suffering in such detention conditions had not exceeded the inevitable level of suffering attributable to imprisonment.", "33. The applicant maintained his complaint and pointed out the Government’s failure to comment on other aspects of his detention conditions referred to in his complaint. 2. The Court’s assessment 34. Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of the execution of such a measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no.", "30210/96, § 94, ECHR 2000-XI). 35. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purposes of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention, and may disclose a violation, either alone or taken together with other shortcomings. In particular, in cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention.", "In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (Muršić v. Croatia [GC], no. 7334/13, §§ 106 and 139, ECHR 2016). 36. The Court notes that it is not clear from the parties’ submissions how many prisoners shared the cell with the applicant throughout his detention. Likewise, neither of the parties specified how much time the applicant had spent locked up in his cell each day.", "At the same time, the Court notes that the Government failed to comment on other well-detailed and precise elements relevant for the assessment of the conditions of the applicant’s detention (see the applicant’s allegations resumed in paragraph 25 above). The Court therefore accepts the applicant’s description of the relevant facts. 37. In these circumstances, and in the light of the test set out in the above-mentioned Muršić judgment (see paragraph 35 above), the Court concludes that, even assuming that the applicant had 3 square metres of personal space at his disposal, as suggested by the Government (see paragraphs 26 and 32 above), there were other aggravating elements of his confinement that rendered the conditions of his detention inappropriate. 38.", "Accordingly, there has been a violation of Article 3 of the Convention in this respect. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 39. In his submissions to the Court of 30 January 2008 the applicant complained regarding the unlawfulness of his arrest and his being taken into custody under the court’s order of 22 May 2007 (see paragraph 13 above). In the period June-July 2009 he raised further arguments regarding the unlawfulness of his detention on remand, including his detention under the court order of 16 January 2008 (see paragraph 17 above).", "He relied on Article 5 § 1 of the Convention, the relevant parts of which provide as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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;” 40. The Government contended that the applicant’s complaint concerning his detention on the basis of an arrest report of 14 May 2007 (see paragraph 10 above) and on the basis of the court order of 22 May 2007 had been lodged outside the six-month time-limit. They claimed that the applicant’s complaint concerned separate acts and not a continuous situation, and that therefore the six-month period had started running from the decision of the Kherson Regional Court of Appeal of 1 June 2007 by which the applicant’s detention order had been approved at last instance (see paragraph 15 above).", "41. The Court reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests of legal certainty. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). In particular, where an accused person’s pre-trial detention is broken into several non-consecutive periods and where applicants are free to lodge complaints about pre-trial detention while they are at liberty, those non-consecutive periods should not be assessed as a whole, but separately.", "This, in the Court’s view, respects more fully the purposes of the six-month rule referred to above. Therefore, once at liberty, an applicant is obliged to bring any complaint which he or she may have concerning pre-trial detention within six months of the date of actual release. It follows that periods of pre-trial detention which end more than six months before an applicant lodges a complaint before the Court cannot be examined, having regard to the provisions of Article 35 § 1 of the Convention (see, with reference to a complaint concerning the length of pre-trial detention under Article 5 § 3 of the Convention, Idalov v. Russia [GC], no. 5826/03, §§ 129-130, 22 May 2012). 42.", "Turning to the circumstances of the present case, the Court observes that the applicant was arrested on 14 May 2007 (see paragraph 10 above) and subsequently remained in detention until 27 July 2007 when he was released on bail (see paragraph 16 above). He was then taken into custody again on 16 January 2008 (see paragraph 17 above) and released on 29 February 2008 (see paragraph 21 above). Between 27 July 2007 and 16 January 2008 the applicant was at liberty. Thus, the applicant’s detention consisted of two separate periods interrupted by his release. 43.", "The case file indicates that the applicant’s complaint with respect to his arrest and initial detention was lodged with the Court for the first time on 30 January 2008 (see paragraph 39 above). Even assuming that the complaint concerned the continuous situation of the applicant’s detention within the first period, and not particular acts or events, as suggested by the Government, the Court observes that it was raised more than six months after the respective detention period had ended, on 27 July 2007. Accordingly, this complaint is out of time. 44. Likewise, the Court observes that the applicant’s complaint regarding his detention under the court decision of 16 January 2008 was raised before the Court in June 2009 at the earliest (see paragraph 39 above), that is more than six months after his release from detention on 29 February 2008.", "45. In view of the foregoing, the Court concludes that the applicant’s complaint under Article 5 § 1 must be rejected as being lodged out of time, in accordance with Article 35 §§ 1 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 46. The applicant complained that by using the expression “has committed a serious crime” when ordering his detention on remand on 16 January 2008 (see paragraph 17 above), the judge had declared him guilty before his guilt had been proved according to law.", "He invoked Article 6 § 2 of the Convention, which reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. A. The parties’ submissions 47. The Government argued that the expression “has committed a serious crime” was more of a technical error made by the judge rather than a declaration of the applicant’s guilt. In this respect, they stated that the analysis of the full transcript of the decision of 16 January 2008 did not suggest that the judge had regarded the applicant as guilty of the crime of which he had been accused.", "The Government also referred to the reasoning given by the President of the District Court when rejecting the applicant’s complaint against the judge (see paragraph 18 above). 48. The applicant maintained his complaint and stated that a judge should have not made such a mistake. B. The Court’s assessment 49.", "The Court reiterates that Article 6 § 2 prohibits the premature expression by a tribunal of the opinion that a person “charged with a criminal offence” is guilty before he or she has been so proved according to law (see, among many other authorities, Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62, and Peša v. Croatia, no. 40523/08, § 138, 8 April 2010). It has been the Court’s consistent approach that the right to the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects the opinion that he is guilty before he has been proved guilty according to law. Even in the absence of any formal finding, it suffices that there is some reasoning suggesting that the court or the official regards the accused as guilty.", "A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of public officials’ choice of words in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer v. Germany, no. 37568/97, §§ 54 and 56, 3 October 2002, and Nešťák v. Slovakia, no. 65559/01, §§ 88 and 89, 27 February 2007). The issue of whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Peša, cited above, § 141).", "50. Turning to the circumstances of the present case, the Court observes at the outset that the decision referred to by the applicant was taken by the District Court in the context of choosing a preventive measure. The question of the applicant’s guilt in relation to the criminal offence thus clearly fell outside the scope of the proceedings at issue (see Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154). 51.", "Having regard to the full transcript of the decision of 16 January 2008, the Court further observes that the paragraph which contains the expression referred to by the applicant is perceived as being a reference to the circumstances which, pursuant to the domestic law, are required to be taken into account when making a decision on a preventive measure. In this context, the impugned expression does indeed seem to refer to the classification of the crime of which the applicant was accused, as indicated by the President of the District Court. Furthermore, at the beginning of the decision, the District Court expressly stated that the applicant had been accused of a criminal offence. It also noted in the concluding part of the decision that the proceedings had not yet been completed and that a number of investigative steps had yet to be taken in order to establish the truth in the case (see paragraph 17 above). 52.", "That being said, the Court considers that, taking into account the actual meaning and context, the impugned expression was indeed a technical mistake on the part of the judge. The Court is of the view that the judge should have given particular attention to the accuracy of the wording of his decisions (see, mutatis mutandis, Peša, cited above, § 150). Nonetheless, in the Court’s view, the circumstances of the case, and a close reading of the text of the decision of 16 January 2008, do not allow for a conclusion that the applicant had been presumed guilty of a criminal offence before being convicted by a court of competent jurisdiction. Read as a whole, the impugned decision confined itself in taking into account the suspicions and accusations which weighed against the applicant (see, mutatis mutandis, Marziano v. Italy, no. 45313/99, §§ 28-32, 28 November 2002).", "53. In the light of the above, the Court cannot disclose any appearance of violation of the applicant’s right to the presumption of innocence under Article 6 § 2 of the Convention. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 54.", "The applicant also complained under Article 3 of the Convention that he had been arrested despite his poor state of health, under Article 6 §§ 1 and 3 (d) of the Convention about the court’s failure to examine witnesses, and under Article 13 of the Convention of the authorities’ failure to respond to his complaints. 55. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions relied on by the applicant. 56. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 about 21,000 euros (EUR) in total in respect of pecuniary damage. That amount related to his loss of salary in view of his conviction, the petrol costs incurred by his family during their trips to hearings and the prison, and the cost of food and water supplied to him in prison by his family.", "59. He further claimed EUR 147,100 in compensation for the distress and deterioration in his health which he had allegedly suffered on account of his allegedly unlawful arrest, unfair conviction and poor conditions of detention. 60. The Government submitted that there had been no breaches of the Convention in the present case, and that, in any event, there was no causal link between the alleged violations and the applicant’s claim in respect of pecuniary damage. They further argued that the sum claimed in respect of non-pecuniary damage was unsubstantiated and excessive.", "61. The Court observes that it has found a violation of Article 3 of the Convention in the present case. In this context, the only relevant element of the applicant’s claim in respect of pecuniary damage appears to be the one related to the cost of food and water supplied to him in prison. The Court observes, however, that no evidence has been provided by the applicant in support of his statement; it therefore rejects this claim. 62.", "The Court acknowledges that the applicant suffered non-pecuniary damage as a result of the violation found. Ruling on an equitable basis and having regard to all the circumstances of the case, it awards him EUR 5,500 under this head. B. Costs and expenses 63. The applicant claimed EUR 3,185 for costs and expenses incurred before the domestic courts.", "64. The Government contested the claim. 65. Regard being had to the violation of the Convention found in the present case, the Court does not discern any causal link between that violation and the applicant’s claim for costs and expenses. The Court therefore makes no award under this head.", "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 complaints concerning the applicant’s poor conditions of detention in prison admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,500 (five 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiFaris VehabovićDeputy RegistrarPresident" ]
[ "FIFTH SECTION CASE OF SCHWAB v. AUSTRIA (Application no. 1068/12) JUDGMENT STRASBOURG 8 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Schwab v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President,Yonko Grozev,Gabriele Kucsko-Stadlmayer, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 16 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1068/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Wolfgang Schwab (“the applicant”).", "2. On 27 May 2014 the applicant passed away and on 17 February 2017 his wife, Mrs Silvia Schwab, expressed her wish to pursue the application. 3. The applicant was represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.", "4. On 27 November 2014 the complaint concerning the lack of an oral hearing before the Administrative 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 5. The applicant was born in 1954 and died on 27 May 2014.", "On 24 October 2014 his wife, Mrs Schwab, was established as his heir. 6. As of 1987 the applicant had intermittently received emergency relief benefits (Notstandshilfe) under the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz). 7. On 4 February 2008 the Vienna Prandaugasse Labour Market Service (Arbeitsmarktservice) retroactively revoked these benefits in so far as they related to the period from 22 August 2002 to 31 July 2007, and ordered the applicant to refund the payments concerned, holding that he had not been entitled to them as he had been living in a joint household with his wife during that period.", "8. The applicant appealed, claiming that his wife had moved to her parents’ house in September 2000, and that they had been running separate households ever since. 9. On 8 August 2008 the Vienna Regional Labour Market Service (Arbeitsmarktservice Landesgeschäftsstelle; hereinafter, “the Labour Market Service”) dismissed the appeal. It held that its preliminary investigations had not shown that the applicant and his wife had terminated their joint household during the period in question.", "10. The applicant made a request to the Constitutional Court (Verfassungsgerichtshof) for legal aid to lodge a complaint against this decision. On 6 November 2008 the Constitutional Court dismissed the request for lack of prospects of success. 11. On 6 November 2008 the applicant complained to the Administrative Court (Verwaltungsgerichtshof) about the Labour Market Service’s decision of 8 August 2008 (see paragraph 9 above), explicitly requesting an oral hearing before the Administrative Court.", "He contested, inter alia, that he had been living in a joint household with his wife during the period in question. 12. By decision of 25 May 2011 the Administrative Court, without holding an oral hearing, dismissed the complaint as unfounded. It held that the Labour Market Service had, in view of the evidence established during its preliminary investigations, reasonably assumed that the applicant had been living in a joint household with his wife. The applicant’s request for an oral hearing was not addressed.", "13. The Administrative Court’s decision was served on the applicant’s counsel on 17 June 2011. II. RELEVANT DOMESTIC LAW 14. Section 39 § 1 (1) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), as in force at the relevant time, provided that after the completion of the preliminary proceedings, a hearing before the Administrative Court should be held if the complainant had requested a hearing within the time-limit for lodging the complaint.", "However, paragraph 2 (6) of section 39 provided as follows: “Notwithstanding a party’s request under § 1 (1), the Administrative Court may refrain from holding a hearing if (...) 6. it is apparent from the written pleadings of the parties to the proceedings before the Administrative Court, and from the files relating to the administrative proceedings that were submitted to the Administrative Court, that an oral hearing cannot be expected to contribute further to clarifying the case, and if this is not contrary to Article 6 § 1 of the European Convention on Human Rights.” THE LAW I. AS TO THE LOCUS STANDI OF MRS SCHWAB 15. The Court must first address the issue of Mrs Schwab’s entitlement to pursue the application originally introduced by the applicant, who died on 27 May 2014 (see paragraph 5 above). 16. The Court notes that at the time of lodging this application, the applicant was still alive, that Mrs Schwab was confirmed as his lawful heir after his passing and that she expressed her wish to pursue the application (see paragraphs 2 and 5 above).", "17. The Court reiterates that, where the original applicant has died after lodging an application, the Court normally permits the next-of-kin to pursue the application, provided he or she has a legitimate interest (see Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016, with further references). Having regard to the circumstances of the present case and its case-law on the subject (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII), the Court accepts that Mrs Schwab is entitled to pursue the application.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant complained that no oral hearing before the Administrative Court had been held. He relied on 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 fair and public hearing ... by [a] ... tribunal ...” 19. The Government did not submit observations.", "A. Admissibility 20. 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 21. The Court reiterates that the applicant was in principle entitled to have a public hearing (see, for example, Diennet v. France, 26 September 1995, § 33, Series A no. 325-A, and Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001) and notes that only the Administrative Court could qualify as “tribunal” (see, mutatis mutandis, Fischer v. Austria, 26 April 1995, § 44, Series A no. 312; Pauger v. Austria, 28 May 1997, § 59, Reports of Judgments and Decisions 1997-III; and Bakker v. Austria, no.", "43454/98, § 29, 10 April 2003). 22. The Court considers that in the course of proceedings in which exclusively legal or highly technical questions are at stake, the requirements of Article 6 may be fulfilled even in the absence of an oral hearing (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Schelling v. Austria, no.", "55193/00, § 30, 10 November 2005). 23. In the present case the Court observes that the applicant expressly requested an oral hearing before the Administrative Court (see paragraph 11 above) and therefore cannot be considered to have waived that right. Moreover, the Court notes that the proceedings before the Administrative Court involved a dispute relating to a crucial question of fact, namely whether or not he had been living in a joint household with his wife during the period in question. Having regard to the circumstances of the present case and its case-law on the subject (see Abrahamian v. Austria, no.", "35354/04, § 26, 10 April 2008; see also Denk v. Austria, [committee] no. 23396/09, §§ 16-19, 5 December 2013 and Willroider v. Austria, [committee] no. 22635/09, §§ 16-19, 5 December 2013), the Court considers that the applicant’s right to a “public hearing” included an entitlement to an “oral hearing”. 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 19,623.80 euros (EUR) in respect of pecuniary damage.", "27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As the applicant made no claim in respect of non-pecuniary damage, the Court does not make an award under this head either. B. Costs and expenses 28.", "The applicant also claimed EUR 610.60 for the costs and expenses incurred before the domestic courts, and EUR 2,150.84 for those incurred before the Court. 29. The Court reiterates that an applicant is entitled to reimbursement of his costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings, as it has not been shown that they were incurred in an attempt to prevent or redress the violation found. In turn, it considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "C. Default interest 30. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Holds that Mrs Schwab has standing to continue the present proceedings in the applicant’s stead; 2. Declares the application admissible; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay Mrs Schwab, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to her, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoErik MøseDeputy RegistrarPresident" ]
[ "THIRD SECTION CASE OF CĂPITAN AND OTHERS v. ROMANIA (Applications nos. 16497/06, 43943/06, 5579/07, 35907/07, 30448/08, 32241/08, 43154/08, 1411/09, 3044/09, 16199/09, 29686/09, 23802/10, 43022/10, 1799/11 and 65420/11) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Courtin a judgment of 23 June 2016. STRASBOURG 19 May 2015 This judgment is final. It may be subject to editorial revision. In the case of Căpitan and Others v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Ján Šikuta, President,Iulia Antoanella Motoc,Branko Lubarda, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 21 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in fifteen applications (nos. 16497/06, 43943/06, 5579/07, 35907/07, 30448/08, 32241/08, 43154/08, 1411/09, 3044/09, 16199/09, 29686/09, 23802/10, 43022/10, 1799/11 and 65420/11) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian companies and fourteen Romanian nationals. Their names and other details, as well as the date of lodging of each application are specified in the appended table. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms Catrinel Brumar, of the Ministry of Foreign Affairs.", "3. In accordance with Protocol No. 14, after informing the respondent Government, the applications were assigned to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASES 4.", "On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by State authorities in their favour. However, the applicants were unable to obtain the enforcement of the decisions in due time. II. RELEVANT DOMESTIC LAW 5. The relevant domestic legal provisions and procedures concerning the enforcement of final judgments against State authorities are described in the leading case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania (nos.", "2699/03 and 43597/07, §§ 36-40, 7 January 2014). THE LAW I. JOINDER OF THE APPLICATIONS 6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO.", "1 7. The applicants complained that the non-enforcement or the delayed enforcement of the final judgments rendered in their favour had infringed their right to access to court guaranteed by Article 6 § 1 of the Convention and also their right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 8. The Court notes that the judgments in the present cases ordered the relevant authorities to execute various obligations in kind or to pay the applicants certain amounts of money. 9. 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 applications (see for instance the Foundation Hostel for Students of the Reformed Church and Stanomirescu, cited above, § 78, and all the references therein). 10. Its respective case-law is based on the principle that the right to a court protected by Article 6 would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision – creating an established right to payment or to have certain actions taken in the applicant’s favour, which should be considered as a “possession” within the meaning of Article 1 of Protocol No. 1 - to remain inoperative to the detriment of one party (see among many other authorities, Burdov v. Russia (no. 2), no.", "33509/04, §§ 65 and 87, ECHR 2009). 11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the present cases. 12. Therefore, taking into account the complexity of the enforcement, the parties’ behaviour and the nature of the awards, the Court finds that the authorities have not deployed all necessary efforts to enforce fully and in due time the judgments in the applicants’ favour.", "13. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 in all applications. III. OTHER ALLEGED VIOLATION OF THE CONVENTION 14.", "The applicants in applications nos. 35907/07, 1411/09, 3044/09 and 29686/09 also raised other complaints under various articles of the Convention. 15. However, in the light of all 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. 16.", "It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 17. Article 46 of the Convention provides: “1.", "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 18. In the light of its conclusions in respect of Article 46 of the Convention in the case of Foundation Hostel for Students of the Reformed Church and Stanomirescu (cited above, §§ 75-84), the Court considers that the Government must secure, by appropriate means, the full enforcement of the judgments which are still outstanding. B.", "Article 41 of the Convention 19. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 20. When fixing the amounts to be awarded under this provision, the Court shall take due account of the fact that some applicants (see applications nos. 30448/08, 43154/08, 16199/09 and 23802/10) have not submitted any pertinent just satisfaction claims, while others (see applications nos. 16497/06, 5579/07, 32241/08, 3044/09 and 43022/10) have either made no claims for costs and expenses or have not submitted any relevant supporting documents.", "21. Regard being had to the documents in its possession and its case law (see the Foundation Hostel for Students of the Reformed Church and Stanomirescu, cited above, §§ 90-91), the Court considers it reasonable to award the applicants in respect of non-pecuniary damage and costs and expenses the sums indicated in the appended table. 22. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares admissible the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention concerning the non-enforcement or delayed enforcement of the judgments in respect of all applications and the remainder of applications nos. 35907/07, 1411/09, 3044/09 and 29686/09 inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention; 4. Holds (a) that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the judgments which are still outstanding; (b) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the national currency at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 19 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJán ŠikutaDeputy Registrar President APPENDIX No.", "Application no. and date of introduction Applicant name date of birth Relevant domestic decision Length of enforcement proceedings Article 41 (EUR) 16497/06 17/03/2006 Marcel Ioan CĂPITAN 08/01/1963 Decision of 12 March 2004, the Alba Iulia Court of Appeal 10 years and 10 months pending Non-pecuniary damage: 3,600 Costs and expenses: no award 43943/06 19/07/2006 Cosmin Adrian ENE 30/07/1971 Decision of 11 October 2004, the Bucharest District Court 3 years and 8 months Non-pecuniary damage: 1,778 Costs and expenses: 150 5579/07 13/12/2006 Nicolae TOADER 13/11/1952 Decision of 15 March 2005, the Prahova County Court 2 years and 5 months Non-pecuniary damage: 1,600 Costs and expenses: no award 35907/07 08/08/2007 Viorica GHILAȘ 04/04/1948 Decision of 2 November 1998, the Bucharest Court of Appeal 10 years and 5 months Non-pecuniary damage: 3,600 Costs and expenses: 300 30448/08 13/06/2008 Tinca ALEXANDRU 21/04/1943 Decision of 2 November 1998, the Bucharest Court of Appeal 10 years and 5 months Non-pecuniary damage: no award Costs and expenses: no award 32241/08 24/06/2008 Sylvia LEIBOVICI 22/04/1936 Decision of 15 March 2005, the Bucharest District Court, final on 22 September 2005 5 years and 8 months Non-pecuniary damage: 4,700 Costs and expenses: no award 43154/08 02/09/2008 S.C. PROSIM S.R.L. 26/07/1996 Decision of 29 September 2006, the Bucharest District Court, final on 9 February 2007 7 years and 11 months pending Non-pecuniary damage: no award Costs and expenses: no award 1411/09 22/12/2008 S.C. KYO INC S.R.L. Decision of 3 August 2007, the Satu Mare County Court 1 year and 4 months Non-pecuniary damage: 600 Costs and expenses: 250 3044/09 23/12/2008 Adrian Alexandru NICULESCU Decision of 11 April 2006, the Bucharest Court of Appeal, final on 26 January 2007 8 years pending Non-pecuniary damage: 4,700 Costs and expenses: no award 16199/09 17/03/2009 1. Romeo Viorel POPESCU 24/08/1939 2.", "Sandina DINCĂ 07/09/1949 a) decision of 2 November 2006, the Ploiești Court of Appeal b) decision of 11 May 2007, the Prahova County Court, final on 18 September 2007 8 years and 2 months pending 7 years and 4 months pending Non-pecuniary damage: no award Costs and expenses: no award 29686/09 24/05/2009 Ioan HANDREA 03/07/1961 Decision of 22 May 2008, the Cluj Court of Appeal, final on 3 December 2008 6 years and 1 month pending Non-pecuniary damage: 2,500 Costs and expenses: 500 23802/10 21/04/2010 Ioan PETRACHI 13/07/1937 Decision of 3 December 2008, the Iasi County Court, final on 16 March 2009 2 years and 4 months Non-pecuniary damage: no award Costs and expenses: no award 43022/10 16/06/2010 Florian SÎRBU 09/08/1971 Decision of 11 November 2009, the High Court of Cassation and Justice 2 years and 6 months Non-pecuniary damage: 2,000 Costs and expenses: no award 1799/11 06/12/2010 George Laurențiu PREDA 22/11/1971 Decision of 13 April 2009, the Târgu Jiu Court of First Instance, final on 19 May 2009 5 years and 8 months pending Non-pecuniary damage: 3,600 Costs and expenses: 430 65420/11 06/10/2011 Alexandru BĂDULESCU 12/06/1948 Decisions of 16 October 2007, the Bucharest District Court, final on 21 March 2008 3 years and 4 months Non-pecuniary damage: 2,300 Costs and expenses: 1,070" ]
[ "FIRST SECTION CASE OF KOLAYEV v. RUSSIA (Application no. 43284/02) JUDGMENT STRASBOURG 3 July 2008 FINAL 03/10/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kolayev 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 12 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43284/02) 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 Dmitriy Aleksandrovich Kolayev (“the applicant”), on 12 November 2002. 2. The applicant was represented by Mr K. Volokitin, a lawyer practising in Novoaltaysk. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 19 June 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Novoaltaysk, a town in the Altay Region.", "5. The applicant brought three civil actions against the Government and Ministry of Finance seeking to liquidate Soviet commodity bonds and saving certificates. 6. On 10 August 2001 the Novoaltaysk Town Court awarded the applicant 227,540 Russian roubles (“RUB”). This judgment became binding on 24 October 2001, but was not enforced.", "7. On 25 December 2001 the town court awarded the applicant RUB 347,406. This judgment became binding on 24 April 2002, and was enforced on 20 September 2007. 8. On 25 December 2001 the town court awarded the applicant RUB 168,944.21.", "This judgment became binding on 24 April 2002. On 7 December 2004 it was quashed in supervisory-review proceedings. Nevertheless, on 2 June 2006 the sum due was by mistake paid to the applicant. The Ministry of Finance sought to recover the mistakenly paid sum, but on 14 November 2007 the Altay Regional Court decided that the applicant could keep the money as compensation for the judgment’s lengthy non-enforcement. II.", "RELEVANT DOMESTIC LAW 9. 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 10. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the judgments. As far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 11. The Government argued that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, because he had not challenged the Ministry of Finance’s negligence, had not applied for an upgrade of the awards in line with the ination, and had not claimed non-pecuniary damage in a court. Besides, the applicant had had no legitimate expectation to have the commodity bonds liquidated, because these bonds had been meant only for agricultural workers. The Government admitted, nevertheless, that the non-enforcement of the first and second judgments had been incompatible with the Convention.", "As to the third judgment, the applicant was no longer a victim because this judgment had been quashed, but the applicant had been permitted to retain the money nevertheless. 12. The applicant maintained his complaint. 13. The Court rejects the Government’s argument as to non-exhaustion of domestic remedies.", "14. Under Article 35 § 1 of the Convention, the Court may deal with an application only after all domestic remedies have been exhausted. This rule allows the State to put matters right domestically, without recourse to international litigation (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 65). This rule extends only to the normal use of remedies that are effective, sufficient, and available (see Pine Valley Developments Ltd and Others v. Ireland, no. 12742/87, Commission decision of 3 May 1989, Decisions and Reports (DR) 61, p. 206).", "15. The three remedies suggested by the Government lack this quality. 16. First, an appeal against the Ministry’s negligence would yield a declaratory judgment that would reiterate what was in any event evident from the original judgment: the State was to honour its debt. This new judgment would not bring the applicant closer to his desired goal, that is the actual payment (see Jasiūnienė v. Lithuania (dec.), no.", "41510/98, 24 October 2000; Plotnikovy v. Russia, no. 43883/02, § 16, 24 February 2005). 17. Second, a request to upgrade the judgment debt would not bring the applicant closer to the liquidation of his debt either. 18.", "Third, a claim for non-pecuniary damage would also be ineffective (see Wasserman v. Russia (no.2), no. 21071/05, §§ 51–58, 10 April 2008). 19. With regard to the first two judgments, 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. 20. With regard to the third judgment, the Court notes that on 14 November 2007 the Altay Regional Court acknowledged a breach of the Convention and provided redress, thus depriving the applicant of his status as a victim (see Amuur v. France, judgment of 25 June 1995, Reports of Judgments and Decisions 1996-III, § 36; and Dalban v. Romania, judgment of 28 September 1999, Reports 1999-VI, § 44). It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. B.", "Merits 21. The Government have admitted that the delay in the enforcement of the first and second judgments violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 22. There has, accordingly, been a breach of these Articles.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed RUB 227,540 in respect of pecuniary damage and 10,000 euros (“EUR”) in respect of non-pecuniary damage.", "25. The Government argued that the applicant had shown no causal link between the alleged violation and the damage, and that a mere finding of a violation would be adequate just satisfaction. 26. As to pecuniary damage, the Court reiterates that the violation found is 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’ outstanding award (see, with further references, Poznakhirina v. Russia, no.", "25964/02, § 33, 24 February 2005). 27. As to non-pecuniary damage, the Court accepts that the non-enforcement of the judgments must have distressed the applicant. On an equitable basis, the Court awards EUR 3,900 under this head. B.", "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 complaint concerning the non-enforcement of the judgments of 10 August and 25 December 2001 admissible and the remainder of the application inadmissible; 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 to the applicant EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]
[ "FIRST SECTION CASE OF MOMČILOVIĆ v. CROATIA (Application no. 11239/11) JUDGMENT STRASBOURG 26 March 2015 FINAL 26/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Momčilović v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 3 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11239/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Croatian nationals, Ms Barica Momčilović, Mr Nikola Momčilović and Mr Darko Momčilović (“the applicants”), on 22 December 2010. 2. The applicants were represented by Ms L. Kušan, a lawyer practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicants alleged that their right of access to court as regards their claim for compensation against the State had been impaired by the decisions adopted by the national courts. 4. On 13 November 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The first and second applicants were born in 1938 and the third applicant in 1963. They all live in Karlovac. A. Background to the case 6. On 1 April 1993 the first and the second applicants’ daughter, who was the third applicant’s sister, was killed in a bar by Z.R., who at the time served as a soldier in the Croatian army.", "7. By a judgment of the Karlovac Military Court (Vojni sud u Karlovcu) Z.R. was found guilty of murder and sentenced to eight years’ imprisonment. 8. On appeal, the Supreme Court (Vrhovni sud Republike Hrvatske) on 17 February 1994 upheld the conviction, which thereby became final, but increased the sentence to nine years’ imprisonment.", "B. The applicants’ first set of civil proceedings 9. On 15 January 1998 the applicants submitted a request to the State Attorney’s Office for their claim for damages to be settled in connection with the unlawful killing of their relative by a soldier, as required under the Military Service Act, in force at the material time (see paragraph 26 below). 10. On 5 March 1998, after their request was refused, the applicants brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking compensation from the State and Z.R.", "in connection with the killing of their relative. 11. During the proceedings, the State Attorney’s Office raised a number of substantive and procedural objections to the applicants’ claim against the State. 12. Meanwhile, on 4 October 1999 the applicants withdrew their civil action against Z.R.", "but maintained their action against the State. 13. Owing to the failure of the applicants’ representative to appear at several hearings, of which the first applicant was informed, on 14 March 2003 the Zagreb Municipal Court found that the civil action was considered to have been withdrawn (see paragraph 24 below; section 216 § 4 of the Civil Procedure Act). 14. As no appeal was lodged by the parties, on an unspecified date this decision became final.", "The applicants later in 2005 attempted to have the statement of finality quashed and to lodge a belated appeal, but this was dismissed by the competent court. C. The applicants’ second set of civil proceedings 15. On 9 May 2005 the applicants brought their claim for damages before the Karlovac Municipal Court (Općinski sud u Karlovcu), which meanwhile had acquired competence to hear the case, against the State and Z.R. related to the killing of their family member. 16.", "During the proceedings, the State Attorney’s Office challenged the applicants’ claim on several procedural grounds, arguing in particular that they had failed to seek to have their claim against the State settled before lodging their civil action, as required under the relevant domestic law (see paragraph 24 below). 17. On 17 March 2010 the Karlovac Municipal Court declared the applicants’ civil action against the State inadmissible, on the grounds that before they lodged their civil action the applicants had failed to attempt to have the case settled with the competent State Attorney’s Office, as required under the relevant domestic law. 18. The applicants challenged the decision of the Karlovac Municipal Court by lodging an appeal before the Karlovac County Court.", "On 29 July 2010 the Karlovac County Court dismissed their appeal, holding as follows: “Section 186(a) of the Civil Procedure Act (Official Gazette, nos. 117/2003 and 88/2005) provides that a person intending to bring a civil suit against the Republic of Croatia must first submit a request for a settlement to the competent State Attorney’s Office. When there is no doubt that before lodging the civil claim the claimant has failed to settle the case with the competent State Attorney’s Office, the first-instance court is correct to declare such a claim lodged directly before it inadmissible (VS Rev-1124/056 of 14 March 2007). The duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged. Section 186(a) of the Civil Procedure Act is inapplicable to claims for damages lodged before the courts prior to 1 December 2003.", "It is not in dispute that the plaintiffs on 5 March 1998 lodged an identical claim against the same defendants before the Zagreb Municipal Court ... It is also not disputed that on 14 March 2003, after the conditions for the stay of proceedings had been met twice, a decision was adopted finding that the claim against the first defendant, the Republic of Croatia, was withdrawn. However, these undisputed facts do not mean that the plaintiffs were released from their obligation under section 186(a) of the Civil Procedure Act because they had previously submitted an identical claim. With the amendments to the Civil Procedure Act (Official Gazette no. 117/2003) the duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged.", "Further amendments to the Civil Procedure Act (Official Gazette nos. 84/2008 and 123/2008) did not [alter this obligation] with regard to the actions against the Republic of Croatia.” 19. On 27 October 2010 the applicants lodged an appeal on points of law before the Supreme Court, challenging the decision of the Karlovac County Court on the grounds that it unreasonably restricted their right to access to court. They argued that before they brought their civil action of 5 March 1998 before the Zagreb Municipal Court they had attempted to settle the matter with the State Attorney’s Office. However, their request had been refused, and later during the proceedings the State Attorney’s Office had also challenged their claim in the court.", "The applicants therefore considered that there was no reason to seek another settlement concerning the identical claim brought before the court after it was decided that it had been withdrawn. 20. The applicants also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 November 2010, reiterating their above arguments. 21. On 23 March 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern individual acts deciding on their civil rights and obligations.", "22. On 3 April 2013 the Supreme Court dismissed the applicants’ appeal on points of law, endorsing the reasoning of the Karlovac County Court that the applicants had been obliged to seek settlement with the State Attorney’s Office before lodging their action of 9 May 2005. The Supreme Court pointed out: “It should be noted that the procedural requirement for the admissibility of an action under section 186(a) of the Civil Procedure Act, and the reliance of the lower courts on that provision, do not represent a violation of a plaintiff’s right of access to court. This is because the plaintiff, by complying with that provision, does not lose any of their rights to claim [damages] since, for example, the lodging of a request for settlement interrupts the running of the statutory prescription period ([Article 186(a)] § 3) and the plaintiff may lodge an action in the court if the State Attorney’s Office refuses the request [for settlement] or does not decide on it within three months of the date it was lodged ([Article 186(a)] § 5). It cannot therefore be said that the obligation of the plaintiffs to seek settlement of the claim with the State Attorney’s Office before lodging an action against the Republic of Croatia represents an unreasonable restriction of access to a competent court which can decide the case on the merits as required under Article 6 § 1 of the European Convention on Human Rights (Official Gazette-International Contracts, nos.", "18/1997, 6/1999-consolidated text, 8/1999-rectification, 14/2002 and 1/2006). This is because section 186 of the Civil Procedure Act neither impaired the right to lodge a civil action nor the right to have the case decided on the merits ... (see the European Court of Human Rights in Ačimović v. Croatia of 9 October 2003 and Kutić v. Croatia of 1 March 2002).” II. RELEVANT DOMESTIC LAW A. Constitution 23. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.", "56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” B. Civil Procedure Act 24. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku) introduced with the 2003 amendments (Official Gazette no. 117/2003) that came into force on 1 December 2003, at the time the applicants’ civil action of 9 May 2005 was lodged (see paragraph 15 above) provided: Section 186(a) “(1) A person intending to bring a civil claim against the Republic of Croatia shall first submit a request for settlement to the competent State Attorney’s Office ... (3) The request under paragraph 1 of this section interrupts the running of the statutory prescription period. (4) Any settlement reached between the claimant and the State Attorney under paragraph 1 of this section shall be considered enforceable.", "(5) Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may bring an action before the competent court. (6) The court shall declare inadmissible any action against the Republic of Croatia lodged before the decision on the request for settlement has been adopted, or before the expiry of the time-limit under paragraph 5 of this section. (7) The provisions of the preceding paragraphs shall not be applicable in cases where the special laws provide for the procedure of friendly settlements before the State Attorney or other body.” Section 193 “... (3) An action which has been withdrawn shall be considered as never having been submitted, and may be submitted again.” Section 216 “(1) The proceedings shall be stayed if before the conclusion of the trial both parties so agree, or when both parties are absent from the preliminary hearing or a hearing at the trial ... or when a duly summoned party fails to appear [at the hearing] and the other party proposes that the proceedings be stayed ... (4) If during the same proceedings the conditions for the stay of proceedings are met twice, it shall be considered that the civil action has been withdrawn.” 25. Subsequent amendments to the Civil Procedure Act relevant for the case at issue (Official Gazette nos. 88/2005, 84/2008 and 123/2008) did not provide any substantial change to sections 186(a), 193 and 216.", "C. Military Service Act 26. The relevant provision of at the time relevant Military Service Act (Zakon o službi u Oružanim snagama, Official Gazette nos. 23/1995 and 33/1995) reads: Section 50 “Claims for damages against the Republic of Croatia shall be decided by the competent court. Before lodging a civil action against the Republic of Croatia, the person is obliged to request an out-of-court settlement before [the State Attorney’s Office]. If the request is not granted in its entirety or if no decision in that regard is adopted in a period of three months after the request was submitted, the person may lodge a civil action in the competent court ...” D. Obligations Act 27.", "The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette no. 53/1991 with subsequent amendments) provided as follows: Section 360 “(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired. (2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired. ...” Section 377 “(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution. ...” Section 388 “[Running of the] limitation [period] is interrupted by bringing of a civil action in a court or by taking any other legal action before other competent authority by the creditor against the debtor with a view to determining, securing or enforcing his or her right.” Section 389 “(1) An interruption of limitation period resulting from bringing of a civil action in a court or from taking of any other legal action before other competent authority by the creditor against the debtor with a view to determining, securing or enforcing his or her right, is considered never to have occurred if the creditor abandons the civil action or any other action undertaken.", "(2) Likewise, it is considered that an interruption has never occurred if the creditor’s civil action or application was dismissed or declared inadmissible, or if the measure obtained to secure or enforce the debt was set aside.” Section 390 “(1) If a civil action against the debtor is declared inadmissible for lack of jurisdiction or any other reason which does not concern the merits of the case, and the creditor brings another civil action within three months following finality of the decision declaring the [first] civil action inadmissible, it is considered that the limitation period was interrupted by the first civil action. ...” E. Criminal Code 28. The Basic Criminal Code of the Republic of Croatia (Osnovni Krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992, 91/1992 and 31/1993) in its relevant parts provides: Sentence of imprisonment Article 35 “(1) The sentence of imprisonment shall not be shorter than fifteen days nor longer than fifteen years. ...” Statutory limitation periods Article 90 “(1) Unless otherwise provided in this Code, the criminal prosecutions may not be instituted after expiry [of the following periods]: ... 2) fifteen years after the commission of a criminal offence punishable by a sentence of imprisonment of more than ten years ...” 29.", "The relevant provision of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 9/1991, 33/1992, 39/1992, 77/1992 and 91/1992) reads: Murder Article 34 “(1) Whoever deprives another person of his or her life shall be punished by imprisonment of at least five years. ...” 30. Further amendments of the criminal legislation introduced by the 1997 Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) did not alter the relevant provisions on the statutory limitation periods observed above.", "III. RELEVANT INTERNATIONAL MATERIAL 31. The relevant part of the Recommendation No. R (86) 12 of the Committee of Ministers to Member States concerning measures to prevent and reduce the excessive workload in the courts of 16 September 1986 provides: “I. Encouraging, where appropriate, a friendly settlement of disputes, either outside the judicial system, or before or during judicial proceedings: To that effect, the following measures could be taken into consideration: a. providing for, together with appropriate inducements, conciliation procedures for the settlement of disputes prior to or otherwise outside judicial proceedings; b. entrusting the judge, as one of his principal tasks, with responsibility for seeking a friendly settlement of the dispute in all appropriate matters at the commencement or at any appropriate stage of legal proceedings; c. making it an ethical duty of lawyers or inviting the competent bodies to recognise as such that lawyers should seek conciliation with the other party before resorting to legal proceedings and at any appropriate stage of such proceedings.” 32.", "The Recommendation Rec(2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties of 5 September 2001 in its relevant part (Appendix) provides: “I. General provisions 2. Scope of alternative means i. Alternative means to litigation should be either generally permitted or permitted in certain types of cases deemed appropriate, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money. ii.", "The appropriateness of alternative means will vary according to the dispute in question. 3. Regulating alternative means i. The regulation of alternative means should provide either for their institutionalisation or their use on a case-by-case basis, according to the decision of the parties involved. ii.", "The regulation of alternative means should: a. ensure that parties receive appropriate information about the possible use of alternative means; b. ensure the independence and impartiality of conciliators, mediators and arbitrators; c. guarantee fair proceedings allowing in particular for the respect of the rights of the parties and the principle of equality; d. guarantee, as far as possible, transparency in the use of alternative means and a certain level of discretion; e. ensure the execution of the solutions reached using alternative means. iii. The regulation should promote the conclusion of alternative procedures within a reasonable time by setting time-limits or otherwise. iv. The regulation may provide that the use of some alternative means to litigation will in certain cases result in the suspension of the execution of an act, either automatically or following a decision by the competent authority.", "II. Relationship with courts i. Some alternative means, such as internal reviews, conciliation, mediation and the search for a negotiated settlement, may be used prior to legal proceedings. The use of these means could be made compulsory as a prerequisite to the commencement of legal proceedings. ... III.", "Special features of each alternative means ... 3. Negotiated Settlement i. Unless otherwise provided by law, administrative authorities shall not use a negotiated settlement to disregard their obligations. ii. In accordance with the law, public officials participating in a procedure aimed at reaching a negotiated settlement shall be provided with sufficient powers to be able to compromise.” 33.", "The European Commission for the Efficiency of Justice (CEPEJ) in its Report on “European judicial systems – Edition 2014 (2012 data): efficiency and quality of justice”, published on 9 October 2014, noted that the application of the alternative dispute resolution (ADR) mechanisms, depending on the way in which it is conducted, can improve the efficiency of justice by reducing the courts’ workload, as well as improving the quality of the response to the citizens by offering them an opportunity to resolve a dispute and limiting its prejudicial consequences and cost or (and) attenuating the contentious situation brought before the court. It also observed different forms of ADR, and the trend of their continuing development in the judicial systems of the Council of Europe Member States (Chapter 6). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 34. The applicants complained that their right of access to court as regards their claim for compensation of damages against the State had been impaired by the decisions adopted by the national courts, contrary to Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. The parties’ arguments 35.", "In their observations of 20 March 2013 the Government submitted that the application was premature, as at the time the proceedings upon the applicants’ appeal on points of law was still pending before the Supreme Court (see paragraphs 19 and 22 above). 36. The applicants maintained that they had properly exhausted the domestic remedies. 2. The Court’s assessment 37.", "The Court observes that in view of the new developments in the proceedings, namely the fact that on 3 April 2013 the Supreme Court decided upon the applicants’ appeal on points of law, dismissing it as ill-founded (see paragraph 22 above), the Government’s objection appears obsolete. 38. The Court therefore rejects the Government’s objection. 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’ arguments 39. The applicants pointed out that their civil actions for damages against the State of 5 March 1998 and 9 May 2005 had concerned the same parties and had been based on the same legal and factual background.", "Since they had unsuccessfully attempted to settle the case with the State Attorney’s Office before bringing their civil action of 5 March 1998 before the court, it had not been reasonable to expect that they should seek again to settle the same claim with the State Attorney’s Office. In the applicants’ view, such a requirement was particularly unreasonable, given that the State Attorney’s Office had not only refused to settle the claim, but had also challenged it on various substantive and procedural grounds during the court proceedings. Whereas the applicants could accept that the duty to seek settlement of the dispute before lodging a civil action against the State pursued a legitimate aim, they considered that in the circumstances of their case this requirement had been interpreted in an overly formalistic and unreasonable manner, impairing the very essence of their right of access to court. Furthermore, the applicants pointed out that their civil action had been declared inadmissible after the proceedings had already been pending for five years before the Karlovac Municipal Court and by a different trial judge, as well as that the domestic courts had not taken all aspects of the case into account, such as the nature of the settlement procedure under the Military Service Act and the running of the statutory limitation periods. 40.", "The Government argued in particular that the two sets of proceedings instituted by the applicants’ civil actions of 5 March 1998 and 9 May 2005, although relating to the same matter, namely the killing of their relative, had concerned two different and independent cases before the competent courts. Therefore, by lodging their civil action on 9 May 2005 the applicants had not pursued the previous set of proceedings but had instituted a new independent one. In these circumstances, they had been obliged to comply with the procedural requirement of seeking a friendly settlement with the State Attorney’s Office before bringing their action in the court, because that was mandated by the 2003 amendments to the Civil Procedure Act. The purpose of these amendments was to allow the parties to settle their dispute out of court and to avoid long and expensive court proceedings, thus reducing the number of cases in the courts. In the Government’s view, the applicants should have been aware of these requirements of the Civil Procedure Act, and thus their failure to comply with such requirements had been their own responsibility and could not be imputed to the domestic authorities.", "2. The Court’s assessment (a) General principles 41. The Court has held on many occasions that Article 6 § 1 embodies the “right to court”, of which the right of access, namely the right to institute proceedings before a court, constitutes one aspect only; however, it is that aspect which enables an individual to benefit from the further guarantees laid down in paragraph 1 of Article 6. The fair, public and expeditious characteristics of judicial proceedings are indeed of no value at all if such proceedings are not first initiated. And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, §§ 34 in fine and 35-36, Series A no.", "18; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V; and Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001-VI). 42. The right of access to court is not, however, absolute and it may be subject to legitimate restrictions (see Golder, cited above, § 39; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62‑67, Series A no.", "316-B; and Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51‑52, Reports of Judgments and Decisions 1996‑IV). 43. Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93; Związek Nauczycielstwa Polskiego v. Poland, no. 42049/98, § 29, ECHR 2004‑IX; and Szwagrun-Baurycza v. Poland, no.", "41187/02, § 49, 24 October 2006). If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z and Others v. the United Kingdom, cited above, §§ 92‑93). (b) Application of these principles to the present case 44. The Court observes that the applicants’ complaint relates to their right of access to court with regard to their civil claim for damages against the State in connection with the killing of their relative by a soldier. It also notes that there is no dispute between the parties as to the applicability of Article 6 of the Convention, nor that under the relevant domestic law the State was liable to be sued in the competent civil courts for compensation of damage caused by the unlawful actions of its soldiers.", "45. However, under the relevant domestic law, this would only be possible after unsuccessful friendly settlement arrangements between the potential claimants and the competent State Attorney’s Office (see paragraphs 24 and 26 above; section 186(a) of the Civil Procedure Act and section 50 of the Military Service Act). Since such procedural requirement or pre-condition to direct recourse to the courts is in substance a limitation to the access to a court, the Court must assess whether the manner in which the limitation at issue operated in the present case restricted or reduced the applicants’ access to court in such a way or to such an extent that the very essence of the right is impaired (see Jüssi Osawe v. Estonia, no. 63206/10, §§ 36 and 43, 31 July 2014). In doing that, the Court is mindful of the fact that in accordance with Article 19 of the Convention, its duty is to ensure the observance of the obligations 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 (see, amongst many others, Běleš and Others v. the Czech Republic, no. 47273/99, § 48, ECHR 2002 IX). 46. According to the Government, the purpose of the requirement to institute the friendly settlement procedure before bringing a claim for damages against the State in the competent civil courts aimed at allowing the parties to settle their dispute without the involvement of courts and to avoid long and expensive court proceedings with an intended effect of reducing the number of cases pending before the courts (see paragraph 40 above). In view of these arguments, the Court can accept that this restriction on direct access to court pursued a legitimate aim of securing judicial economy and opened the possibility for the parties to efficiently settle their claims without the involvement of courts (see paragraphs 31-33 above).", "47. The applicants also do not dispute that this restriction pursued a legitimate aim (see paragraph 39 above). They rather argue that in the circumstances of their case this requirement was applied unreasonably, requiring them to lodge the request for settlement twice concerning the claim based on the same legal and factual background. The Court must therefore examine whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued by the State (see, for example, Z and Others, cited above, § 93). 48.", "In this connection the Court firstly observes that after bringing their first claim for damages in the Zagreb Municipal Court on 5 March 1998, the applicants failed to participate diligently in the proceedings before that court. In particular, their representative did not appear at several of the hearings, of which the first applicant was duly informed but it does not appear that he, or any of the other applicants, took the necessary measures to secure their proper participation in the proceedings (see paragraph 13 above). The applicants’ omissions thus resulted in the decision of the Zagreb Municipal Court that their civil action was to be considered withdrawn. Afterwards they failed to lodge a timely appeal against that decision and only later, notably after about two years, unsuccessfully attempted to have the statement of finality quashed and to lodge a belated appeal (see paragraph 14 above). 49.", "Nevertheless, the Zagreb Municipal Court’s decision finding that the applicants’ civil action was withdrawn did not prejudice their right to pursue their civil claim by instituting a new set of proceedings (see paragraphs 24 above; section 193 § 3 of the Civil Procedure Act). However, according to the relevant domestic law before lodging a civil action in the competent courts the applicants were required to attempt to have the claim settled with the State Attorney’s Office (see paragraph 24 above; section 186(a) of the Civil Procedure Act). 50. In this respect the Court is mindful that the legal provision at issue was introduced in the Civil Procedure Act in 2003, as one of the procedural requirements in all civil actions against the State, whereas the applicant’s first attempt to settle the case before the competent State Attorney’s Office was mandated by the specific provisions on the State’s responsibility provided under, at the time relevant, Military Service Act (see paragraphs 24 and 26 above). By the decision of the Zagreb Municipal Court by which the applicants’ civil action was considered to be withdrawn in the first set of proceedings, the procedural continuity of their case was interrupted (see paragraph 24 above, section 193 § 3 of the Civil Procedure Act) and they were required to institute a new set of proceedings and consequently to comply with the procedural requirements for bringing an action in the competent court which, in the concrete case, included the requirement to attempt to have the claim settled with the State Attorney’s Office.", "51. Likewise, the Court notes that the applicants first attempted to settle their case with the State Attorney’s Office in 1998 whereas they instituted the second set of proceedings before the Karlovac Municipal Court in 2005. Given such substantial period of time it is impossible for the Court to speculate what would be result of the friendly settlement negotiations had the applicants attempted them before instituting the second set of civil proceedings, as various social and legal considerations governing the work of the State Attorney’s Office might have changed. 52. The Court further observes that the settlement procedure at issue could not in any manner prejudice the applicants’ claim for damages against the State.", "In particular, it interrupts the running of the statutory prescription period and, in case the State Attorney’s Office does not accept the settlement, it remains fully open to the applicants to bring an action before the competent court (see paragraph 24 above, section 186(a) §§ 3 and 5 of the Civil Procedure Act). 53. It is true that in availing themselves of this possibility the applicants were required, under section 186(a) § 5 of the Civil Procedure Act (see paragraph 24 above), to wait three months for the competent State Attorney’s Office to decide whether to reach a friendly settlement before they had a possibility, in case of an unfavourable outcome, to bring their claim in the competent courts. However, the Court does not consider that this period is in itself unreasonable to that extent that it impairs the very essence of the applicants’ right of access to court. This is particularly true given that, as already observed above (see paragraph 52 above), neither can there be any legal prejudice for the applicant’s claim during the friendly settlement procedure nor have they specified in what manner the requirement to institute the friendly settlement procedure adversely affected their rights.", "54. Thus, even if the applicants considered that the requirement to have the case settled with the State Attorney’s Office again before bringing a claim for damages in the second set of proceedings was unreasonable, it is impossible to discern the actual prejudice which this might have caused them other than a possible inconvenience they might have had in having to take an additional procedural action. However, the Court is not called upon to assess whether the domestic legal system was designed to operate in the manner which was most convenient for the applicant. Rather, the Court’s role is to determine whether the applicant’s right of access to a court was restricted in a disproportionate manner (see Jüssi Osawe, cited above, § 48). 55.", "Lastly, the Court notes that even when the Karlovac Municipal Court declared the applicants’ civil action inadmissible for failing to attempt to have the case settled with the State Attorney’s Office, it still remained open for them to comply with that requirement and to lodge a new civil action in the competent court within three months following the finality of the Karlovac Municipal Court’s decision (see paragraph 27 above, sections 377 and 390 of the Obligations Act; see further paragraphs 28-30 above). However, the applicants failed to avail themselves of this opportunity and thus essentially brought about a situation in which they prevented the domestic courts from determining the merits of their case. 56. In view of the above, having found no arbitrariness or unfairness in the decisions of the competent domestic courts, the Court does not consider that the applicants’ right of access to court was restricted in such a way or to such an extent that the very essence of the right was impaired. 57.", "There has accordingly been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 26 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "André WampachIsabelle BerroDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF MATOUŠKOVÁ v. SLOVAKIA (Application no. 39752/98) JUDGMENT STRASBOURG 12 November 2002 FINAL 12/02/2003 This judgment may be subject to editorial revision. In the case of Matoušková v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsE. Palm,MrsV. Strážnická,MrM.", "Fischbach,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 22 October 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39752/98) against the Slovak Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mrs Helena Matoušková (“the applicant”), on 10 September 1997. 2. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Vršanský. 3. The applicant alleged, in particular, that the proceedings concerning her action for payment of a sum of money lasted unreasonably long.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 5 April 2001 the Court declared the application partly admissible. 7.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Proceedings concerning the applicant's claim of 9 November 1994 9. On 9 November 1994 the applicant sued the co-operative Úsvit before the Bratislava II District Court (Obvodný súd). She claimed the payment of a sum of money to which she was entitled after she had ceased to be a member of the co-operative in 1993. 10.", "On 18 January 1995 the Bratislava II District Court adjourned the case as the defendant's representative did not appear. 11. On 20 February 1995 the District Court again adjourned the hearing because of the applicant's failure to appear. 12. A hearing scheduled for 22 March 1995 had to be adjourned due to the absence of both parties.", "13. On 24 April 1995 the District Court adjourned the case on the ground that the defendant had not been duly served with a copy of the action. 14. On 29 May 1995 the District Court adjourned the case until 26 June 1995 as the applicant did not appear. 15.", "On 26 June 1995 the District Court established that it lacked jurisdiction to deal with the case and transferred it to the Bratislava City Court (Mestský súd). 16. On 13 October 1995 the Bratislava City Court invited the applicant to pay the court fees. 17. On 7 November 1995 the Bratislava City Court was notified that the applicant had paid the fees.", "18. On 29 November 1995 the Bratislava City Court resolved that the applicant had to pay an additional amount in court fees. 19. On 12 April 1996 the applicant requested the Bratislava City Court to proceed with the case. 20.", "On 12 September 1996 the applicant complained about delays in the proceedings to the president of the City Court. 21. On 24 September 1996 the latter informed the applicant that the proceedings had been stayed on 18 September 1996 and that the relevant decision would be served later. 22. In its decision of 18 September 1996 the Bratislava City Court noted that the decision on the applicant's action depended on the assessment of the property of the co-operative concerned and that this preliminary issue was the subject matter of a different set of proceedings which were brought in 1992 and were still pending before it.", "The City Court therefore stayed the proceedings concerning the applicant's claim pending the outcome of the other set of proceedings. 23. The applicant appealed on 25 September 1996. She maintained, with reference to the relevant provision of the Commercial Code as well as to the memorandum and articles of the co-operative, that the amount due to her was to be calculated on the basis of the co-operative's net business assets set out in its financial statement for the year when her membership in the co‑operative had been terminated. The applicant argued that this information was available and that the outcome of the other set of the proceedings had no bearing on the determination of her claim.", "24. On 12 December 1996 the applicant complained to the Ministry of Justice that her case was not being proceeded with. 25. On 27 January 1997 the Ministry of Justice admitted that the applicant's complaint about delays in the proceedings was justified. The letter stated that the case had been transferred to the Bratislava City Court on 29 September 1995 and that the latter, apart from requesting the applicant to pay the court fees, had not proceeded with the case effectively until 18 September 1996.", "26. On 29 January 1997 the Supreme Court (Najvyšší súd) dismissed the applicant's appeal against the City Court's decision of 18 September 1996. 27. On 24 March 1999 the applicant complained to the Ministry of Justice about delays in the proceedings. The complaint was forwarded to the president of the Bratislava Regional Court (Krajský súd - the former Bratislava City Court).", "On 22 June 1999 the president of the Regional Court informed the applicant that the case could only be proceeded with after the preliminary issue had been determined by a final decision. B. Proceedings concerning the preliminary issue 28. In 1991 a production unit of the co-operative Úsvit became an independent legal person registered as Plastobal, VDI. On 14 March 1992 the latter claimed that a part of the property of the co-operative Úsvit should be assigned to it.", "29. On 28 July 1992 the Bratislava City Court dismissed the plaintiff's request for waiver of the court fees. A hearing was held on 11 September 1992. 30. On 21 September 1992 the Bratislava City Court discontinued the proceedings on the ground that the plaintiff had not paid the fees.", "The plaintiff appealed and claimed that the fees had been paid in the meantime. 31. On 8 October 1992 the co-operative Úsvit filed an action with the Bratislava City Court claiming that Plastobal, VDI be liquidated. 32. On 3 November 1992 the City Court quashed its decision of 21 September 1992.", "A hearing was held on 18 December 1992. The defendant requested that the proceedings be stayed pending a decision on its action of 8 October 1992. Another hearing was held on 27 January 1993. On 10 February 1993 the court appointed an expert and requested him to determine, within thirty days, the share of property of the co-operative Úsvit to which the plaintiff was entitled. 33.", "On 25 February 1992 the defendant claimed that the proceedings be stayed. The City Court dismissed the request on 26 June 1993. On 28 July 1993 the defendant appealed. On the same day the plaintiff requested that the court issue an interim measure. 34.", "In the meantime, on 17 July 1993 the Bratislava City Court appointed another expert who was to determine, within thirty days, the property share which was due to the plaintiff. On 29 September 1993 the defendant challenged the expert. 35. On 3 November 1993 the expert submitted comments on the defendant's request for her exclusion. 36.", "On 6 December 1993 the case file was submitted to the Supreme Court for a decision on the defendant's appeal against the City Court's decision of 26 June 1993. The Supreme Court dismissed the appeal as being inadmissible on 10 March 1994. The decision was transmitted to the City Court on 28 March 1994. 37. On 8 February 1994 the expert informed the City Court that representatives of the defendant company had not allowed her to consult the relevant documents on 21 September 1993.", "38. On 28 June 1994 the defendant again challenged the expert. The judge heard the expert and informed the defendant, on 19 July 1994, that she had found no reason for excluding the expert. The defendant company was further informed that it could be fined under Article 53 (1) of the Code of Civil Procedure should its representatives prevent the expert from carrying out her duty. 39.", "On 10 August 1994 the defendant company again requested that the proceedings be stayed. On 29 September 1994 it challenged the judge dealing with the case. 40. On 7 October 1994 the expert informed the City Court that the defendant company had not allowed her to consult the relevant documents. 41.", "The case file was submitted to the Supreme Court on 11 October 1994. By a decision of 25 January 1995 the Supreme Court dismissed the defendant's request for exclusion of the City Court judge. 42. A hearing before the City Court was held on 10 April 1995. 43.", "On 19 April 1995 the judge urged the expert to submit the opinion. On 28 April 1995 the expert informed the court that she had a heavy workload. The City Court appointed a different expert on 22 May 1995 and asked him to submit his opinion within thirty days. 44. On 4 July 1995 the defendant company requested that the proceedings be stayed.", "45. On 2 October 1995 the expert requested the City Court to order the parties to put the relevant documents at his disposal. He also requested an advance on his costs and an extension of the time-limit for submission of his opinion. 46. On 13 October 1995 the defendant company informed the City Court that the proceedings should be stayed and that, for that reason, it was irrelevant to take any further evidence in the case.", "47. On 9 November 1995 the expert informed the Court that the representatives of the defendant company had refused him access to the relevant documents. On 16 November 1995 the City Court imposed a fine of 5,000 Slovakian korunas (SKK) on the defendant company, pursuant to Article 53 (1) of the Code of Civil Procedure, on the ground that it had refused to co-operate with the expert. The defendant company appealed on 28 November 1995. 48.", "The representatives of the defendant company failed to appear at a meeting with the expert and the plaintiff convoked by the City Court for 7 December 1995. As a result the expert could not obtain the relevant documents. 49. On 23 January 1996 the case file was submitted to the Supreme Court for a decision on the defendant's appeal against the procedural fine which had been imposed on it on 16 November 1995. The Supreme Court upheld the decision on the procedural fine on 28 March 1996.", "The case file was returned to the City Court on 7 May 1996. 50. On 19 September 1996 and on 16 December 1996 the judge asked the expert to inform her when the opinion would be submitted. On 7 February 1997 the judge invited the expert to specify which documents were necessary for drafting the opinion. On 26 February 1997 the expert informed the Bratislava Regional Court (which took over the agenda of the former Bratislava City Court) that the defendant had repeatedly refused to submit the relevant documents.", "51. On 7 March 1997 the Regional Court requested the defendant company to submit the relevant documents. On 27 March 1997 the representative of the defendant company asked the court for further specification of the documents to be submitted. In the meantime, on 25 March 1997, the plaintiff submitted further evidence to the Regional Court. On 14 May 1997 the Regional Court received a proposal on delimitation of the property in question.", "52. A hearing before the Regional Court was held on 11 June 1997. The Regional Court dismissed the defendant company's request that the proceedings be stayed. The defendant appealed on 19 June 1997. The Supreme Court dismissed the appeal on 24 November 1997.", "The Supreme Court's decision was transmitted to the Regional Court on 5 February 1998. 53. On 22 December 1997 the defendant company requested the court to proceed with the case and explained that the dispute affected its business activities. 54. On 16 March 1998 the Regional Court issued an interim measure, upon the request of the plaintiff of 28 January 1998, by which it prohibited the defendant company from alienating a part of its property.", "55. A hearing before the Bratislava Regional Court was held on 25 March 1998. 56. On 2 April 1998 the defendant company appealed against the decision on the interim measure of 16 March 1998. The case file was transmitted to the Supreme Court which quashed the decision in question on 30 July 1998.", "The Supreme Court's decision was transmitted to the Regional Court on 26 August 1998. In the meantime, on 16 April 1998, the plaintiff submitted further evidence to the Regional Court. 57. On 17 September 1998 the Regional Court invited the defendant company to submit documents so that the value of the property could be determined. The defendant replied on 28 October 1998.", "58. A hearing was held on 16 November 1998. An attempt to settle the case failed. The plaintiff amended its claim and the case was adjourned with a view to obtaining an expert opinion. 59.", "On 11, 15 and 26 January 1999 the defendant company submitted further evidence to the Regional Court. 60. On 24 May 1999 the Regional Court quashed its above decisions on the appointment of experts. It held, with reference to the correspondence included in the file, that it had been impossible to obtain an expert opinion. On the same day the Regional Court further delivered a judgment in which it granted the major part of the plaintiff's claims.", "61. On 2 July 1999 the defendant appealed against the judgment. The case file was transmitted to the Supreme Court on 5 August 1999. The plaintiff submitted comments on the case on 2 September 1999. They were transmitted to the Supreme Court on 9 September 1999.", "62. A hearing before the Supreme Court was held on 18 January 2000. The appellate court dismissed the defendant's request that the proceedings be stayed. 63. On 31 March 2000 the Supreme Court quashed the Regional Court's judgment of 24 May 1999.", "It noted that the assessment of the property in question on the basis of an auditor's report submitted by the defendant company was not sufficient, and instructed the first instance court to take further evidence and to appoint an expert to that effect. The decision was transmitted to the Regional Court on 23 May 2000. 64. On 12 September 2000 the representatives of the defendant company submitted further information to the Regional Court. A hearing was held on 28 September 2000 and the case was adjourned.", "On 13 October 2000 the defendant company submitted its comments on the evidence before the court. 65. On 13 June 2001 the Regional Court ordered an expert opinion on the value of the property in question to be submitted before 30 September 2001. On 25 September 2001 the expert asked for an extension of the time-limit until 30 November 2001 on the ground that the relevant documents no longer existed. 66.", "On 28 September 2001 the Regional Court instructed the expert to suspend the elaboration of the opinion pending an informative hearing of the parties which was scheduled for 11 October 2001. On 15 October 2001 the Regional Court decided that the parties were to pay an advance on the expert's fees and costs. It further instructed the expert to proceed with the opinion. On 25 October 2001 the defendant company challenged both the expert and the above decision on the expert's fees an costs. 67.", "On 10 January 2002 the expert informed the Regional Court that the elaboration of the opinion had been impaired by the defendant's conduct. On 16 January 2002 the Regional Court urged the expert to submit the opinion. It was submitted on 31 January 2002. On 5 and 6 February 2002 respectively the parties were invited to submit their comments on it within ten days. 68.", "On 4 February 2002 the Regional Court asked the Regional archive in Bratislava for information about archiving of documents. The latter replied on 4 March 2002. In the meantime, on 21 February 2002, the defendant submitted comments on the expert opinion. 69. On 15 April 2002 the Regional Court heard the parties.", "The case was adjourned until 27 May 2002 as it was necessary to obtain further evidence. In this context, thirty-one witnesses were summoned. 70. On 19 April 2002 the Regional Court decided on the expert's fees. The proceedings are pending.", "II. RELEVANT DOMESTIC LAW 71. Under Article 53 (1) of the Code of Civil Procedure, the presiding judge may impose a procedural fine up to SKK 5,000 on persons who seriously hamper the progress of the proceedings by, for instance, disobeying a court's order. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 72.", "The applicant alleged that the proceedings concerning her claim against the co-operative Úsvit had not been concluded within a reasonable time as required by Article 6 § 1 of the Convention, the relevant part of which reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Period to be taken into consideration 73. The proceedings started on 9 November 1994. They have been stayed since 18 September 1996, pending the outcome of a different set of proceedings in which a preliminary issue is to be determined and which are still pending. Since the documents at the Court's disposal indicate that the outcome of the latter set of proceedings is directly decisive for the determination of the applicant's civil claim (see paragraphs 22 and 27 above), those proceedings must also be taken into account in order to establish whether the overall length of the proceedings complained of was reasonable (see, mutatis mutandis, Probstmeier v. Germany, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, §§ 46, 48 and 52, with further references).", "Accordingly, the period to be taken into consideration has exceeded seven years and eleven months. B. Compliance with Article 6 § 1 of the Convention 1. Applicable criteria 74. The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case as well as what was at stake for the applicant (see, among other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, 25 March 1999, § 67, and Philis v. Greece (no. 2), judgment of 27 June 1997, Reports 1997-IV, p. 1083, § 35). 2. The parties' submissions 75. The Government maintained that the proceedings concerning the applicant's claim were complex and that the applicant contributed to their length in that she had failed to appear at the hearings scheduled for 20 February 1995, 22 March 1995 and 29 May 1995.", "They admitted that there had been a period of inactivity in the proceedings imputable to the domestic courts between 6 February 1996 and 18 September 1996. 76. As to the proceedings concerning the preliminary issue, the Government submitted that they were complex and that their length was mainly due to the above behaviour of the representatives of the defendant company. Furthermore, the plaintiff company also contributed to the length of the proceedings in that it had not paid the court fees in time. In the Government's view, there were no delays in the proceedings concerning the preliminary issue which could be imputed to the domestic authorities.", "77. The applicant disagreed. She maintained that the decision to stay the proceedings concerning her case pending the outcome of the proceedings opposing Plastobal, VDI and the co-operative Úsvit was erroneous as those proceedings had no bearing on her claim. 3. The Court's assessment 78.", "As regards the proceedings concerning the applicant's claim filed on 9 November 1994, the Court notes that the delay caused by the applicant's failure to appear at hearings scheduled for 20 February 1995, 22 March 1995 and 29 May 1995 is not significant when considering the overall length of the period in question. Furthermore, the domestic authorities acknowledged that the former Bratislava City Court had failed to proceed with the case effectively between 29 September 1995 and 18 September 1996, that is for more than eleven months, as during that period it had only requested the applicant to pay the court fees (see paragraph 25 above). 79. The Court is not in a position to determine whether the Slovakian courts applied the law correctly when they decided to stay the proceedings concerning the applicant's claim pending the outcome of the proceedings concerning the dispute between the two co-operatives (see, e.g., García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).", "However, it will take those proceedings into account in order to establish whether the overall length of the proceedings complained of was reasonable (see paragraph 73 above). 80. The proceedings concerning the preliminary issue were brought on 14 March 1992 and they are still pending. They have thus lasted more than ten years and seven months. The length of those proceedings is imputable to a considerable extent to the behaviour of the representatives of the defendant company.", "In particular, delays in the proceedings resulted from the fact that the experts were denied access to the relevant documents which were in the possession of the defendant company. While the behaviour of the representatives of the defendant company cannot, as such, be held against the respondent Government, Article 53 (1) of the Code of Civil Procedure provided the domestic courts with a means of exercising pressure on the defendant company so that its representatives co-operated with the experts. The first instance court availed itself of such a possibility only once, namely in November 1995. 81. As regards the period after 18 September 1996, that is after the proceedings concerning the applicant's action were stayed pending the outcome of the proceedings concerning the preliminary issue, the Court notes that the representatives of the defendant company in the latter set of proceedings started co-operating with the Regional Court as the dispute affected the business activities of the co-operative.", "82. On 24 May 1999 the Regional Court quashed its earlier decision on the appointment of experts and decided on the basis of the evidence available. The judgment was appealed against on 2 July 1999. The appellate court quashed the first instance judgment on 31 March 2000, that is more than eight months after the appeal had been filed, and during this period only one hearing was held in the case. The Supreme Court's decision was transmitted to the Regional Court on 23 May 2000, that is almost two months after its delivery.", "The Supreme Court instructed the Regional Court to take further evidence and to appoint an expert for this purpose. 83. The Regional Court held a hearing on 28 September 2000, and it received further evidence from the defendant company on 13 October 2000. An expert opinion concerning the value of the property in question was ordered on 13 June 2001, that is more than fourteen months after the Supreme Court had quashed the first judgment delivered by the Regional Court and had instructed the latter to appoint an expert. The Court notes that this delay occurred during a period when the proceedings had been pending for more than eight years.", "84. In view of the foregoing, the Court considers that there were delays in the proceedings concerning the preliminary issue which are imputable to the conduct of the domestic courts, in particular during the period following the delivery of the Regional Court's judgment of 24 May 1999. 85. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court finds that the overall duration of the period under consideration cannot be regarded as reasonable. There has accordingly been a violation of Article 6 §1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 87. The applicant sought an award of SKK 265,270 to compensate her for the financial loss which she had allegedly suffered on account of the unreasonable length of the proceedings concerning her claim. She explained that the sum claimed corresponded to the statutory default interest in respect of the sum which the co-operative in question owed her.", "88. The Government contended that there had been no violation of Article 6 § 1 in the present case and that, in any event, there was no ground for any award under this head as the proceedings were still pending. 89. The Court considers that there is no causal link between the pecuniary damage claimed and the violation found. In particular, it is not for the Court to speculate what the outcome of the proceedings would be if they were in conformity with the reasonable time requirement laid down in Article 6 § 1 (see Werner v. Austria, judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2514, § 72).", "Consequently, no award is made under this head. B. Non-pecuniary damage 90. The applicant submitted that she was not in a position to quantify the non-pecuniary damage resulting from the protracted length of the proceedings concerning her case. 91. The Government submitted no comments.", "92. The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of the length of the civil proceedings instituted by her. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant 3,000 euros (EUR). C. Costs and expenses 93. The applicant claimed reimbursement of SKK 10,000 which she had paid as court fees in the domestic proceedings.", "94. The Government contended that the applicant failed to show that the sum had been incurred with a view to preventing the alleged violation of the Convention. 95. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, among other authorities, Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001, unpublished).", "In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court observes that there is no element in the file suggesting that the applicant has incurred, before the domestic courts, any extra costs and expenses because of the length of the proceedings. The Court accordingly dismisses the claim. D. Default interest 96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points (see the case of Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 124, 11 July 2002).", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the 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 Slovakian korunas at the rate applicable at the date of settlement, together with any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant's claims for just satisfaction. Done in English, and notified in writing on 12 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O'BoyleNicolas BratzaRegistrarPresident" ]
[ "FOURTH SECTION CASE OF NAMLI AND OTHERS v. TURKEY (Application no. 51963/99) JUDGMENT STRASBOURG 5 December 2006 FINAL 23/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Namlı and Others v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrR.", "Türmen,MrM. Pellonpää,MrK. Traja,MrS. Pavlovschi,MrJ. Šikuta, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 14 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 51963/99) 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 six Turkish nationals, Mr Lami Daim Namlı, Mrs Sabiha Namlı, Mr Turan Namlı, Ms Ümit Namlı, Mrs Muhterem Tuncay and Mrs Münüse Tepebaşı (“the applicants”), on 28 June 1999. 2. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court.", "3. On 8 March 2005 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 application at the same time as its admissibility. THE FACTS 4. The applicants were born in 1958, 1923, 1949, 1961, 1955 and 1950 respectively and live in Tokat.", "5. On 21 November 1957 the Koruluk village administration, the Ministry of Treasury and the Forest Directorate requested the annulment of the record in the title deed registry of the applicants’ father’s and other persons’ (hereinafter “the defendants”) ownership of four plots of land (nos. 49, 50, 51 and 52) situated in the village of Koruluk. 6. On 4 November 1971, 2 December 1975 and 16 March 1989 the Bafra Cadastre Court gave a decision on the merits of the case.", "Each of these decisions was in turn quashed by the Court of Cassation. 7. In the course of the proceedings several defendants including Mr Esat Namlı, who was the husband of the second applicant and the father of the remaining applicants, died. Shortly thereafter, in 1990, the applicants became parties to the proceedings. 8.", "On 28 November 1996 the Bafra Cadastre Court decided to annul the record in the title deed registry except for a part of plot no. 49 which remained under the name of the defendants. 9. On 10 March 1998 the Court of Cassation upheld the judgment of the first-instance court. 10.", "On 18 December 1998 the Court of Cassation dismissed the applicants’ request for rectification of its decision. This decision was not served on the applicants. However, it was sent to the registry of the Bafra Cadastre Court on 4 January 1999. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 11.", "The applicants complained that the length of the civil proceedings exceeded the “reasonable time” requirement under Article 6 § 1 of the Convention. The relevant part of Article 6 § 1 provides 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 12. The Government asked the Court to dismiss the application for the failure of the applicants to exhaust domestic remedies, as required under Article 35 § 1 of the Convention. In this regard, they maintained that the applicants did not raise the substance of their complaint before the domestic courts and did not rely on the Convention. The Government further maintained that the applicants had failed to comply with the six-month rule.", "They submitted that the applicants should have lodged their complaint with the Court within six months following the Court of Cassation’s decision of 18 December 1998. 13. The applicants refuted the Government’s claims. 14. As regards the first limb of the Government’s objections, the Court reiterates that it has already examined and rejected the Government’s similar objections in previous cases (see, in particular, Karakullukçu v. Turkey, no.", "49275/99, §§ 27-28, 22 November 2005). The Court finds no particular circumstances in the instant case, which would require it to depart from its findings in the above-mentioned application. It therefore rejects the Government’s objection under this head. 15. As to whether the applicants have complied with the six-month rule, the Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997‑V, p. 1547, § 33).", "The Court observes that, in civil cases, it is the practice of the Court of Cassation to serve their decisions on the parties. However, in the instant case, the applicants were never served with the Court of Cassation’s decision dated 18 December 1998. The Government did not provide any explanation for this. In the Court’s opinion, the earliest date on which the applicants could have been informed about the content of the Court of Cassation’s decision was on 4 January 1999, the date on which the Court of Cassation’s decision arrived at the registry of the first-instance court. The application was lodged with the Court on 28 June 1999.", "In view of the above, the Court considers that the application was introduced within the six-month time-limit provided in Article 35 § 1 of the Convention. It therefore rejects the Government’s objection under this head also. 16. Moreover, the Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible has been established.", "It must therefore be declared admissible. B. Merits 1. Period to be taken into consideration 17. The Government requested the Court to take into account solely the proceedings which occurred 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.", "They further maintained that the period to be taken into consideration in the instant case began when the applicants became parties to the proceedings. 18. The applicants disputed the Government’s arguments. 19. The Court reiterates that its case-law on the intervention of third parties in civil proceedings makes the following distinction: where the applicant has intervened in domestic proceedings only on his or her own behalf the period to be taken into consideration begins to run from that date, whereas if the applicant has declared his or her intention to continue the proceedings as an heir, he or she can complain of the entire length of the proceedings (see, in particular, Cocchiarella v. Italy [GC], no.", "64886/01, § 113, ECHR 2006‑...). 20. The period to be taken into consideration therefore began on 21 November 1957 when the Koruluk village administration, the Ministry of Treasury and the Forest Directorate contested the title-deed registry records and ended on 18 December 1998, when the Court of Cassation dismissed the applicants’ request for rectification of its decision. They therefore lasted approximately forty-one years before the first-instance court and the Court of Cassation, which each examined the case four times. 21.", "The Court’s jurisdiction ratione temporis permits it to consider only the period of 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. It must nevertheless take account of the state of the proceedings at the time when the aforementioned declaration was deposited (see Şahiner v. Turkey, no. 29279/95, § 22, ECHR 2001-IX; and Cankoçak v. Turkey, nos. 25182/94 and 26956/95, §§ 25-26, 20 February 2001). On that critical date the proceedings had already lasted more than twenty-nine years and two months.", "2. Reasonableness of the length of the proceedings 22. The Government maintained that the case was a complex one concerning a dispute over ownership of a property and involving a substantial number of defendants, some of whom had died in the course of the proceedings and had been replaced by their heirs. On this point, the Government argued that the length of the proceedings was mainly caused by the time spent by the domestic authorities in finding the heirs of the deceased defendants. 23.", "The applicants maintained their allegations. 24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 25.", "The Court considers that there were substantial delays throughout the proceedings which lasted approximately forty-one years - eleven years and ten months of which fall within the Court’s jurisdiction ratione temporis. It can accept that the case was complex owing to the number of parties and the nature of the dispute. However, it cannot be said that this in itself justified the entire length of the proceedings. In the Court’s opinion, the length of the proceedings, in the instant case, can only be explained by the failure of the domestic courts to deal with the case diligently. 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.", "26. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage, costs and expenses 28. The applicants claimed 1,808,000 United States dollars (USD) (approximately 1,463,968 euros (EUR)) in respect of pecuniary damage and USD 2,000,000 (approximately EUR 1,619,433) in respect of non‑pecuniary damage. The applicants did not seek reimbursement of any costs and expenses in connection with the proceedings before the Court. 29. The Government contested these claims.", "30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicants must have suffered non-pecuniary damage, such as distress and frustration, on account of the duration of the proceedings, which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicants, jointly, EUR 30,000. B.", "Default interest 31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the 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, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage, to be converted into new Turkish liras at the rate applicable at the date of the settlement and free of any taxes or charges that may be payable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]
[ "THIRD SECTION CASE OF G.B. AND R.B. v. THE REPUBLIC OF MOLDOVA (Application no. 16761/09) JUDGMENT STRASBOURG 18 December 2012 FINAL 18/03/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.", "In the case of G.B. and R.B. v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Corneliu Bîrsan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 27 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16761/09) 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 two Moldovan nationals, Ms G.B.", "and Mr R.B. (“the applicants”), on 24 March 2009. The President of the Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicants were represented by Ms N. Mardari, a lawyer practising in Chișinău.", "The Moldovan Government (“the Government”) were represented by their acting Agent, Mr L. Apostol. 3. The applicants alleged, in particular, that their rights under Article 8 had been breached and that the domestic courts had failed to offer them sufficient redress. 4. On 25 January 2011 the application was communicated to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. Following the resignation of Mr Mihai Poalelungi, the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicants were born in 1968 and 1966 respectively and live in Ștefan Vodă. They are husband and wife. A. The first applicant’s sterilisation and its effects 7. On 4 May 2000 the first applicant was giving birth to a child.", "The head of the obstetrics and gynaecology department of the Ştefan-Vodă regional hospital, Mr B., performed a Caesarean section on her. During the procedure he removed her ovaries and Fallopian tubes, without obtaining her permission. As a result of the operation, the first applicant, who was thirty-two at the time, suffered an early menopause. 8. Since 2001 the first applicant has been having medical treatment designed to counteract the effects of the early menopause, including hormone replacement therapy.", "According to her doctors, she has to continue such treatment until she is between fifty-two and fifty-five years old, after which further treatment will be required. 9. According to a neurology report dated 5 November 2001, the first applicant was suffering from astheno-depressive syndrome and osteoporosis. On 18 February 2002 the doctors found that the first applicant experienced hot flushes, neurosis and frequent heart palpitations. On 8 May 2002 she was diagnosed with asthenic neurosis.", "10. According to the results of an examination carried out by a medical panel on 18 March 2003, the removal of the first applicant’s ovaries and Fallopian tubes had been unnecessary and the surgery had resulted in her being sterilised. 11. On 26 July 2006 a psychiatrist and a psychologist established that the first applicant was suffering from long-term psychological problems and that she continued to show signs of post-traumatic stress disorder. B.", "Criminal proceedings against the doctor 12. On 15 March 2005 the Căuşeni District Court convicted B. of medical negligence which had caused severe damage to the health and bodily integrity of the victim. He was sentenced to six months’ imprisonment, suspended for one year. The court referred to medical reports and found, inter alia, that B. had failed to inform the applicants of the sterilisation until ten days after the event. The first applicant’s ovaries could have been preserved, but B. had failed to do so.", "13. On 11 May 2005 the Bender Court of Appeal upheld that judgment. 14. On 2 August 2005 the Supreme Court of Justice quashed the lower courts’ judgments and adopted its own judgment, finding B. guilty but absolving him of criminal responsibility because the limitation period for sentencing him had expired. C. Civil proceedings initiated by the applicants 15.", "On an unknown date in March 2007 the applicants started civil proceedings against the Ştefan-Vodă regional hospital and B., claiming compensation for the damage caused, comprising 9,909 Moldovan lei (MDL – approximately 587 euros (EUR) at the time) for pecuniary damage, MDL 1 million (EUR 59,740) for the first applicant and MDL 100,000 (EUR 5,974) for the second applicant in respect of non-pecuniary damage, and MDL 2,700 (EUR 160) for legal costs. They also sought a court order for the hospital to provide the first applicant with free treatment for as long as her condition required, as prescribed by her doctors. The applicants’ lawyer provided detailed explanations and evidence in support of each of these claims, including various medical reports, the cost of medical consultations, laboratory analyses and treatment undertaken by the first applicant, and the findings of the criminal courts in the case against B. 16. On 18 September 2007 the Căuşeni District Court accepted the applicants’ claims in part, referring to the findings of the criminal courts and the medical evidence in the file.", "It ordered the hospital to provide the first applicant with the requisite medication until the year 2020. The court also awarded MDL 1,119 (EUR 69) to the applicants for pecuniary damage, as well as MDL 5,000 (EUR 306) to the first applicant and MDL 1,000 (EUR 61) to the second applicant in respect of non-pecuniary damage. In this latter connection, the court found that B. had voluntarily compensated the applicants for the pecuniary losses they had incurred and that awarding sums as large as those claimed by the applicants would have seriously affected the activities of the (State-owned) hospital. 17. On 24 January 2008 the Chişinău Court of Appeal partly quashed that judgment, increasing the award for non-pecuniary damage to the first applicant to MDL 10,000 (EUR 607) plus MDL 1,237 (EUR 75) for costs.", "The court observed that, under the applicable legal provisions, the size of an award of compensation for non-pecuniary damage was to be determined by taking into consideration the circumstances of the case, including the nature and seriousness of suffering caused to the victim, the degree of guilt of the person who had caused the suffering, and the degree to which such compensation could bring about just satisfaction for the victim. The court referred to the findings of the criminal courts in the case against B., as well as the first applicant’s medical reports (see paragraph 10 above). 18. The applicants lodged an appeal on points of law, arguing inter alia that the lower courts had not given sufficient reasons for making such a nominal award, which had not offered them redress for the violation of their rights. They referred to the various medical reports confirming that, besides the long-lasting psychological effect on the first applicant resulting from being permanently sterilised without her knowledge or consent, she continued to suffer from health problems which required constant medical treatment.", "19. In a final judgment of 24 September 2008 the Supreme Court of Justice upheld the judgment of 24 January 2008, essentially repeating the arguments of the lower court. 20. The award in the applicants’ favour was enforced in March 2009. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. In their initial application the applicants complained of a breach of Article 6 § 1 of the Convention owing to the insufficient reasons given by the courts in making the award for compensation and the excessive length of the enforcement proceedings. However, in their subsequent observations they asked the Court not to proceed with the examination of this complaint. 22. The Court therefore sees no reason to continue with the examination of this complaint.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 23. The applicants complained that their rights protected under Article 8 of the Convention had been breached as a result of the first applicant’s sterilisation and the nominal amount of compensation awarded to them. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 24. The Court observes that, although the applicants alleged that the treatment endured by the first applicant also gave rise to an interference with the second applicant’s right to respect for his family life, it considers that it is only required to examine the issues raised from the standpoint of the first applicant’s right to respect for her physical integrity, having regard, of course, to the second applicant’s role as her husband (see, mutatis mutandis, Glass v. the United Kingdom, no. 61827/00, § 72, ECHR 2004‑II). 25.", "It also notes that the hospital in which doctor B. carried out the surgical procedure on the first applicant was owned by the State and that he was effectively a State employee. It has already found that the acts and omissions of medical staff at public health institutions are capable of engaging the responsibility of respondent States under the Convention (see Glass, cited above, § 71). 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 27. The applicants referred firstly to the fact that the domestic courts had established medical negligence in respect of the first applicant.", "There had thus been a very serious interference with her physical and psychological integrity, as confirmed by the domestic judgments. However, the finding that their rights had been breached was not sufficient to take away the applicants’ status as victims of a violation of Article 8 of the Convention and the compensation awarded was far from being just or in line with comparable Article 8 cases examined by the Court. 28. The Government submitted that the applicants had failed to prove any non-pecuniary damage beyond that for which the domestic courts had already awarded compensation. In their submissions to the domestic courts the applicants had never referred to any case-law of the European Court to prove that the award needed to be increased.", "The Government argued that the present case did not differ in any significant manner from that of Pentiacova and Others v. Moldova ((dec.), no. 14462/03, ECHR 2005-I), in which the Court had found no violation of Article 8 of the Convention in respect of the State’s insufficient funding of haemodialysis. 2. The Court’s assessment 29. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition.", "It covers, inter alia, the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). In particular, administering medical treatment contrary to the wishes of a patient will interfere with his or her rights under Article 8 of the Convention (see Glass, cited above, § 70). 30.", "In the present case, the domestic courts found a breach of the first applicant’s rights. Even though the courts did not expressly refer to Article 8 of the Convention, they established that there had been a serious interference with the first applicant’s physical and psychological integrity in the absence of her knowledge or consent (see paragraphs 12-14 and 16-19 above). 31. The object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (see A. and Others v. the United Kingdom [GC], no.", "3455/05, § 174, ECHR 2009). In the circumstances of the present case, where the domestic courts have examined the issues and found, in essence, a violation of Article 8 of the Convention, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national courts had misinterpreted or misapplied the relevant legal principles or reached a conclusion which was manifestly unreasonable (ibid., § 174). That is clearly not the case here. 32. Therefore, the only issue which remains to be determined is the amount of compensation.", "The domestic courts awarded the first applicant the equivalent of EUR 607 in respect of non-pecuniary damage caused, in addition to EUR 75 for costs and an order against the hospital requiring it to provide her with medication until 2020 (see paragraph 16 above). This is considerably below the minimum level of compensation generally awarded by the Court in cases in which it has found a violation of Article 8 (see, for example, Codarcea v. Romania, no. 31675/04, § 114, 2 June 2009, where the Court awarded the applicant EUR 20,000). The devastating effect on the first applicant from having lost her ability to reproduce and from the ensuing long-term health problems make this a particularly serious interference with her rights under Article 8 of the Convention, requiring sufficient just satisfaction. 33.", "Moreover, while citing the general criteria listed in the relevant legal provisions, the domestic courts did not specify how these criteria applied to the first applicant’s case or give any particular reason for making the award in the amount of EUR 607. The only exception was the first-instance court’s judgment, according to which a higher award would have undermined the hospital’s ability to continue to operate as a public health institution. In the Court’s view, the latter argument is unacceptable, given that the State owned that hospital and was liable to cover whatever expenses it generated. 34. The Court is unable to accept the Government’s argument that the case cannot be distinguished from Pentiacova and Others (cited above).", "In that case the Court found that the respondent State was unable to provide full medical treatment and had to distribute what little funding was available so as to provide as wide a range of medical assistance as possible to the population. The treatment requested by the applicants in that case involved substantial sums of money over a long period of time, unlike the present case, which involved a one-off payment. Moreover, the State could claim at least partial reimbursement of the expenses from B., the doctor found guilty of medical negligence. The State could also have made professional negligence insurance mandatory at medical institutions in order to be sufficiently covered to be able to pay victims (see, mutatis mutandis, Codarcea, cited above, § 107). 35.", "In the light of the foregoing, the Court considers that the first applicant has not lost her victim status and that there has been a violation of Article 8 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.", "In respect of non-pecuniary damage, the applicants claimed EUR 60,000 and EUR 6,000 for the first and second applicants respectively. 38. The Government considered that the first applicant had not proved that there was a causal link between any damage allegedly caused to her and the compensation claimed. In any event, the amount claimed was excessive and should not exceed EUR 10,000, as awarded by the Court in Glass (cited above, § 87). 39.", "In the light of the particularly serious effect on the first applicant’s physical and psychological well-being and on her family life with the second applicant, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 40. The applicants also claimed EUR 2,800 for the costs and expenses incurred before the Court. They submitted an itemised timesheet in respect of their lawyer’s work (thirty-five hours at an hourly rate of EUR 80).", "41. The Government considered that both the number of hours worked on the case and the hourly rate charged by the lawyer had been excessive. 42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.", "C. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]
[ "FIRST SECTION CASE OF PONOMAREV v. RUSSIA (Application no. 7672/03) JUDGMENT STRASBOURG 15 May 2008 FINAL 15/08/2008 This judgment may be subject to editorial revision. In the case of Ponomarev 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,George Nicolaou, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 24 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7672/03) 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 Vladimir Vladimirovich Ponomarev (“the applicant”), on 22 May 2001.", "2. The applicant was represented by Mr V.D. Yermeychuk, a lawyer practising in the Republic of Komi. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 11 January 2006 the Court decided to communicate the complaint concerning the domestic courts’ failure to examine the applicant’s claim about his alleged infection with tuberculosis to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4. The Court dismissed an objection raised by the Government concerning the application of Article 29 § 3 of the Convention to the present case. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in Vorkuta, in the Republic of Komi. A. Criminal proceedings against the applicant 6. On 30 October 1996 police apprehended the applicant on suspicion of having committed theft from a garage, together with Sh.", "Upon arrival at the police station the applicant and Sh. admitted the charges. The applicant told the police the location of the garage they had robbed. It appears from the records of the applicant’s arrest and first questioning that his right to have legal assistance provided by the state or of his own choosing was explained to him. However, he declined the offer initially and said that he would appoint a counsel to defend him during the trial.", "7. On 1 November 1996 the applicant was remanded in custody. 8. On 28 February 1997 the prosecution authorities referred the criminal case to the Vorkuta Town Court of the Republic of Komi (“the Town Court”) for trial. 9.", "On 9 December 1997 the Town Court found that during the pre-trial investigation the applicant had been deprived of an opportunity to appoint legal counsel of his own choosing. In the Town Court’s view, the applicant’s defence rights had not been respected and the charges against him had been based to a large extent on his self-incriminating testimony. Furthermore, the Town Court established that the applicant had been in custody for a year and that he had contracted tuberculosis. In those circumstances it decided to release the applicant on the undertaking not to leave his place of residence, and returned the case to the prosecution authorities for further investigation. The Town Court ordered that all investigative measures, including questioning the applicant, should be conducted in the presence of the applicant’s legal counsel.", "10. In July 1998 the investigating authorities discontinued the criminal proceedings against the applicant in the absence of any corpus delicti. However, in November 1998 the Deputy Prosecutor of Vorkuta ordered them to be re-opened. 11. On 18 December 2000 the Town Court examined the applicant’s case.", "The applicant was represented by K., a counsel appointed by him. The applicant and Sh. denied all charges. They submitted that they had confessed to theft to protect Sh.’s brother. The applicant refused to give any further testimony, relying on his right not to incriminate himself.", "12. The Town Court heard testimonies by a victim, several witnesses and the investigator in charge of the case, who stated that the applicant had been assisted by a lawyer throughout the proceedings, except at times when he had refused to call one. Each time his refusal had been noted in the records of questioning and endorsed by the applicant. The Town Court held that the applicant had admitted the charges and that other evidence examined in the trial proved his guilt. It dismissed as unsubstantiated the applicant’s complaint that he had been questioned on occasion with no counsel present, finding that according to the records of questioning sessions signed by the applicant, he had declined to call a lawyer.", "13. On the same date the Town Court convicted the applicant as charged and sentenced him to two years’ imprisonment, but ordered the sentence to be lifted under the Amnesty Act of 26 May 2000. On 26 January 2001 the Supreme Court of the Republic of Komi (“the Supreme Court”) upheld the conviction on appeal. B. Civil proceedings for damages 14.", "On 22 December 1998 the applicant brought a court action against the Ministry of Finance of the Russian Federation, seeking to recover lost wages and obtain compensation for his allegedly unlawful detention. He also claimed damages for his alleged infection with tuberculosis while in detention. He relied on Articles 1070 and 1100 of the Civil Code of the Russian Federation and claimed 150,000 Russian roubles (RUB). In the course of the proceedings, on 5 July 2001, the applicant increased his claim to RUB 300,000. 15.", "In support of his claims concerning his alleged infection with tuberculosis, the applicant provided the Town Court with an extract of his medical record delivered by the hospital of the village of Severnyy on 23 October 1998, and medical certificates delivered by the tuberculosis dispensary of Vorkuta on 23 December 1997 and 5 August 1998. According to those documents the applicant had been diagnosed with tuberculosis in 1997, while in pre-trial detention, and had to follow regular in-patient and sanatorium therapy. 16. The Town Court delivered its judgment on 23 January 2003. It held that the applicant’s pre-trial detention had been lawful and dismissed his claim in respect of compensation for detention.", "It did not address the applicant’s complaint about his alleged infection with tuberculosis. On 17 March 2003 the Supreme Court upheld the judgment on appeal. II. RELEVANT DOMESTIC LAW 17. Constitution of the Russian Federation of 12 December 1993 Article 53 “Everyone shall have the right to compensation by the state for harm caused by the unlawful action (or inaction) of State organs or their officials.” 18.", "Criminal Code of the Russian Federation of 13 June 1996 Article 84 Amnesty “An amnesty may be declared by the State Duma of the Federal Assembly of the Russian Federation with regard to a broad range of persons. Persons who have committed crimes may be relieved from criminal liability by an act of amnesty. Persons convicted of crimes may be released from punishment, or the punishment imposed on them may be reduced or replaced with a milder penalty, or such persons may be released from additional penalties. The criminal records of persons who have served punishment may be expunged by an act of amnesty.” 19. Part II of the Civil Code of the Russian Federation of 26 January 1996, as worded at the material time Article 1069 Liability for harm caused by State agencies, local self-government agencies and their officials “Harm caused to an individual or a legal person as a result of the unlawful action (or inaction) of state agencies, local self-government agencies or officials thereof, including as a result of the issuing by state and local self-government agencies of acts that do not conform with the law or with other legal acts, shall be subject to compensation.", "Such compensation shall be paid by the treasury of the Russian Federation, the treasury of the subject of the Russian Federation, or the treasury of a municipal authority, as the case may require.” Article 1070 Liability for harm caused by the unlawful actions of agencies of inquiry, agencies of preliminary investigation, the prosecutor’s office and the courts “1. Harm caused to an individual as a result of unlawful conviction, unlawful criminal prosecution, unlawful application as a measure of restraint of remand in custody or a written undertaking not to leave a specified place, unlawful imposition of administrative sanctions in the form of an arrest or correctional labour, shall be compensated in full at the expense of the treasury of the Russian Federation and, in those instances provided for by law, at the expense of the treasury of the subject of the Russian Federation or the municipal authority concerned, regardless of any fault on the part of officials of agencies of inquiry, preliminary investigation, the prosecutor’s office and the courts, in the procedure established by law. 2. Harm caused to an individual or a legal person as a result of the unlawful activity of agencies of inquiry, preliminary investigation, prosecutor’s offices, which has not entailed the consequences specified in paragraph 1 of this Article, shall be compensated on the grounds and in accordance with the procedure set out in Article 1069 of this Code. Harm caused in the course of the administration of justice by the courts shall be compensated in cases where the fault of a judge has been established by a court judgment that has entered into legal force.” Article 1100 Grounds for compensation for non-pecuniary damage “Non-pecuniary damage shall be compensated, regardless of the fault of the person responsible for inflicting the damage, in the following instances: where the damage to the life and health of an individual was caused by a source of extreme danger; where the damage was caused to an individual as a result of his unlawful conviction, unlawful criminal prosecution, unlawful application as a measure of restraint of remand in custody or a written undertaking not to leave a specified place, unlawful imposition of an administrative sanction in the form of an arrest or correctional labour; where the harm was caused as a result of the dissemination of defamatory information discrediting honour, dignity and business reputation; in other instances specified by law.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained that the domestic courts had failed to examine his claim concerning his infection with tuberculosis while in pre‑trial detention. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention. The relevant parts of this provision read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 22. The Government acknowledged that the applicant’s right of access to a court had been violated as a result of the domestic courts’ failure to examine his claim concerning his alleged infection with tuberculosis while in pre-trial detention.", "23. The applicant maintained his complaint. 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 that provision 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, judgment of 21 February 1975, Series A no.", "18, § 36). However, the right of access to a court does not consist only of a right to institute proceedings, but also of a right to obtain a “determination” of the dispute, or, in other words, to have the claims examined, by a court (see, mutatis mutandis, Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003). 25. The Court observes that on 22 December 1998 the applicant brought a claim against the Ministry of Finance before the Vorkuta Town Court of the Republic of Komi, seeking compensation for his allegedly unlawful detention but also for having contracted tuberculosis in pre-trial detention.", "The applicant submitted several medical certificates in support of his claims relating to the alleged infection with tuberculosis. The Court notes that the applicant’s claims for compensation were undoubtedly “civil” within the meaning of Article 6 § 1 of the Convention, and had a basis in national law. 26. It follows from the judgment of 23 January 2003, that the Vorkuta Town Court examined only the applicant’s claims relating to compensation for detention and failed to examine his claim concerning his alleged infection with tuberculosis. The appellate instance, in its turn, endorsed the first‑instance court’s findings in summary fashion.", "It is therefore clear that the applicant’s claims regarding compensation for his alleged infection with tuberculosis remained without examination. Against this background and taking into account that the Government acknowledged the domestic courts’ failure to examine the applicant’s claim, the Court considers that the applicant was denied access to a court. 27. Accordingly, there has been a violation of Article 6 § 1 of the Convention on that account. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 28. The applicant complained under Article 3 that he had been infected with tuberculosis while in pre-trial detention. The Court recalls that, in accordance with the general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see, for example, Blečić v. Croatia [GC], no. 59532/00, § 70, 8 March 2006). The Court observes that the applicant was detained from 30 October 1996 to 9 December 1997, whereas the Convention entered into force in respect of the Russian Federation on 5 May 1998.", "It follows that this complaint is incompatible ratione temporis with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 29. The applicant further complained, under Article 5 § 5, that the domestic courts had dismissed his claim for damages for his allegedly unjustified detention. The Court notes that the right to compensation set forth in paragraph 5 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, Stoichkov v. Bulgaria, no. 9808/02, § 72, 24 March 2005).", "In the present case the domestic courts have not established that the applicant’s detention from 30 October 1996 to 9 December 1997 was unlawful. The Court itself is not competent to examine the lawfulness of the applicant’s detention as it took place before 5 May 1998, the date of entry into force of the Convention in respect of the Russian Federation. Therefore, the applicant’s complaint under Article 5 § 5 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 30. The applicant also complained, under Article 6 § 3, that in the criminal proceedings against him he had not been assisted by a lawyer during the first questioning by police and he had been forced to incriminate himself.", "The Court notes that on 9 December 1997 the Town Court returned the case for further investigation on the ground that the applicant’s right to defence had not been respected, and a new investigation had been conducted, respecting the applicant’s rights. Furthermore, the domestic courts established that the applicant had been assisted by a lawyer throughout the proceedings, except in those instances when he had explicitly declined to call him. 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. 31. The applicant complained that the domestic courts had violated his rights under Article 8 of the Convention when they applied the Amnesty Act without him asking them to do so.", "The Court considers that this complaint does not disclose any appearance of a violation of Article 8. Finally, the applicant complained under Article 13 that the authorities had infringed his right to an effective remedy. The Court considers that the applicant failed to substantiate that complaint. Moreover, in so far as he relied on the fact that the domestic courts had not properly examined his complaints (see paragraph 20 above), the Court considers that this is covered by its findings under Article 6 of the Convention. In these circumstances the Court finds 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 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 200,000 euros (EUR) in compensation for his alleged infection with tuberculosis.", "He further claimed 150,000 United States dollars in respect of just satisfaction for all the alleged violations of the Convention. 34. The Government considered that the amounts claimed were excessive and unsubstantiated. They submitted that if the Court were to find a violation in the present case, that in itself would constitute sufficient just satisfaction for any damage sustained by the applicant. 35.", "As regards the applicant’s claim for compensation for his alleged infection with tuberculosis, the Court notes that this issue were not subject to examination on the merits in the present case, and therefore rejects this claim. Furthermore, the Court considers that an award for just satisfaction in the present case must be based on the fact that the applicant did not have the benefit of the right of access to a court. However, the Court cannot speculate as to what would have been the final outcome of the proceedings (see, for example, Freitag v. Germany, no. 71440/01, § 64, 19 July 2007). It accordingly rejects the applicant’s claim in so far as it relates to pecuniary damage.", "On the other hand, the Court considers that the applicant has suffered distress and frustration as a result of the domestic courts’ failure to examine his claim about his alleged infection with tuberculosis, and that this cannot be sufficiently compensated for by the finding of a violation. Making its assessment on an equitable basis and having regard to its case-law on the subject, the Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage plus any tax that may be chargeable on that amount. B. Costs and expenses 36. The applicant did not make any claims in respect of the costs and expenses incurred before the domestic courts and before the Court.", "Accordingly, the Court does not award anything under this head. C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning lack of access to a court admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right of access to a court; 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 2,000 (two 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos RozakisDeputy RegistrarPresident" ]
[ "FOURTH SECTION CASE OF PETKEVIČIŪTĖ v. LITHUANIA (Application no. 57676/11) JUDGMENT STRASBOURG 27 February 2018 This judgment is final but it may be subject to editorial revision. In the case of Petkevičiūtė v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President,Carlo Ranzoni,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 6 February 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57676/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Liudmila Petkevičiūtė (“the applicant”), on 2 September 2011.", "2. The applicant, who had been granted legal aid, was represented by Mr A. Ryibin, a lawyer practising in Moscow. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. On 3 October 2016 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1956 and lives in Vilnius. A. The applicant’s father’s book 5.", "The applicant’s father, V.P., was a well-known writer in Lithuania. In September 2003 he published a book entitled “The Ship of Idiots” (Durnių laivas – hereinafter “the book”) in which he presented his memoirs of various events in the history of Lithuania, often using a satirical and mocking tone. Several passages in the book discussed the personality and activities of V.L.-Ž. (deceased at the time of publication). V.L.-Ž.", "had been a minister in the Provisional Government of Lithuania, which operated from June to August 1941, and his son V.L. had been a prominent Lithuanian politician since the 1980s. The book contained the following statements (hereinafter “the disputed statements”), in which V.L.-Ž. was referred to as “[L.] senior” or “the patriarch”: “[V.L.] had to somehow cover for his father, who had for many years collaborated with the KGB ... Having worked as a spy, he was returned home by Moscow ...” ([L.] reikėjo kaip nors pridengti tėvą, ilgus metus bendradarbiavusį su KGB ... Jį kaip atidirbusį žvalgą namo sugrąžino Maskva ...) “Some were already [trying to get familiar with] the new ‘patriarch’, Hitler’s ... friend, ... spy, ... copier of strategic maps, [L.] senior ...” (Kai kas jau vedžiojo už parankių naujai iškeptą „patriarchą“, Hitlerio ... draugą, ... žvalgą, ... strateginių žemėlapių kopijuotoją senąjį [L.] ...) “[L.] senior ... told how in 1918 ... [they] had raised the flag in the castle tower ... [H]ow afterwards they had had to flee to Kaunas in order to escape from the Bolsheviks, how on the way they had been arrested [and] interrogated... (and, as far as I know, recruited).” (Senasis [L.] ... pasakojo, kaip 1918 metais ... pilies bokšte kėlė vėliavą, ... kaip jiems po to teko nuo bolševikų bėgti į Kauną, kaip pakeliui juos areštavo, tardė... (o kiek man žinoma, ir užverbavo).)", "“The pharmacy was ejected onto the streets. Moreover, the pharmacists were sued because ‘the patriarch’ did not find on the veranda the six-metre oak bench which he had left there before the war.” (Vaistinę išmetė į gatvę. Dar daugiau, vaistininkai buvo paduoti į teismą todėl, kad patriarchas verandoje nerado šešių metrų ąžuolinio suolo, kurį buvo palikęs prieš karą.) 6. On the fourth page of the book it was stated that the author assumed full responsibility for the truthfulness of the facts presented in the book (autorius prisiima visą atsakomybę už knygoje išdėstytų faktų tikrumą).", "B. Criminal proceedings 7. After the book’s publication, V.L. lodged a complaint with the Prosecutor General’s Office (hereinafter “the prosecutor”), seeking the opening of a pre-trial investigation against V.P. for defamation of his late father.", "On 21 October 2003 the prosecutor opened the investigation. 8. During the investigation, the prosecutor asked various bodies about the activities of V.L.-Ž. described in the disputed statements. He received replies from the Central State Archives, the Genocide and Resistance Research Centre of Lithuania, the National Library of Lithuania, the Archives of Literature and Art, and the State Security Department.", "They all stated that they did not have any information indicating that V.L.-Ž. had collaborated with the Nazi or Soviet regimes or any information confirming any of the other parts of the disputed statements. The prosecutor also interviewed several individuals who had been quoted as sources in V.P.’s book but they all stated that they were unable to confirm the truthfulness of the events described in the disputed statements. 9. On 10 October 2005 the Vilnius City First District Court acquitted V.P.", "of defamation on the grounds that the offence could be committed only against a living person, whereas V.L.-Ž. was already dead when V.P.’s book had been published. The court noted that V.P.’s actions could have constituted the crime of contempt for the memory of a deceased person, but that charge had not been included in the indictment. 10. V.L., V.P.", "and the prosecutor all submitted appeals against that decision, and on 17 January 2006 the Vilnius Regional Court quashed it. The court found that the indictment had not complied with the relevant procedural requirements, and returned the case to the prosecutor. 11. On 9 August 2006 the prosecutor discontinued the pre-trial investigation. He considered that there was sufficient evidence to charge V.P.", "with contempt for the memory of a deceased person, but criminal prosecution for that offence had become time-barred. C. Civil proceedings 1. First-instance proceedings 12. In June 2007 V.L. lodged a civil claim against V.P.", "He asked the court to order V.P. to publicly retract the disputed statements and to award him 100,100 Lithuanian litai (LTL – approximately 29,000 euros (EUR)) in respect of non-pecuniary damage. V.L. submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father, as well as to his own honour and dignity. 13.", "V.P. disputed the claim, submitting that he had not intended to defame or insult anyone and that the disputed statements had been taken out of context. He contended that the book had been a product of literary creativity made up on the basis of his subjective memories, and that it had been written in figurative and exaggerated language which could be interpreted in many different ways. V.P. thus argued that the disputed statements should be regarded as value judgments and not as factual statements.", "He further submitted that, in any event, when writing the book he had relied on various historical sources and witness testimonies, as well as on his own personal experience – he provided a list of books and other publications which he had consulted, and described the circumstances in which he had found out about the events discussed in the disputed statements. Therefore, he argued that the disputed statements had been sufficiently accurate. Lastly, V.P. contended that both V.L.-Ž. and V.L.", "had been prominent politicians and public figures and therefore had to tolerate higher levels of criticism. 14. On 10 December 2008 V.P. died. The court adjourned the examination of the case until V.P.’s legal successors were identified.", "On 7 May 2009 the applicant and her two brothers, who had accepted their father’s inheritance, were issued with certificates of inheritance, stating that they had inherited their father’s estate in equal parts. On 23 July 2009 the court decided to continue with the examination of the case, replacing the defendant V.P. with the applicant and her brothers. 15. V.L.", "subsequently amended his claim and asked the court to declare that the disputed statements had been erroneous and insulting to the honour and dignity of himself and his late father (see paragraph 36 below), and to award him a symbolic sum of LTL 1 (approximately EUR 0.29) in respect of non-pecuniary damage. 16. At the court hearing on 9 December 2009, V.L. argued that the disputed statements amounted to statements of fact and not value judgments. He submitted that, in line with the domestic courts’ case-law, the burden was on the author to prove that those statements were factually accurate, but the evidence collected in both the civil and the criminal proceedings demonstrated that they did not have any factual basis.", "17. The applicant and her brothers were represented by the same lawyer who had represented V.P. in the civil proceedings up until his death. They submitted essentially the same arguments that V.P. had submitted before (see paragraph 13 above).", "They also argued that an obligation to pay compensation for damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs. They furthermore submitted that the disputed statements had been based on their late father’s memories and subjective opinions, and so they should not be required to prove the truthfulness of those statements. 18. On 23 December 2009 the Vilnius Regional Court found in V.L.’s favour. It stated that, in line with the domestic law, in order to uphold the claim, four circumstances had to be established: firstly, that certain statements had been disseminated; secondly, that those statements had concerned the claimant (V.L.)", "and his late father (V.L.-Ž. ); thirdly, that the statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. ; and fourthly, that the statements had been erroneous. The claimant (V.L.)", "had to prove that the first three circumstances had existed, whereas the defendants (the applicant and her brothers) had to prove that the fourth circumstance had not (see paragraph 34 below). 19. The Vilnius Regional Court observed that there was no dispute that statements had been disseminated and that they had referred to V.L.-Ž. and V.L. (see paragraph 5 above).", "However, the parties disagreed as to whether they had amounted to statements of fact or to value judgments. The court found that the disputed statements had been presented as factual statements about V.L.-Ž. : they had implied that certain events had actually occurred, for example, that V.L.-Ž. had been recruited by the Soviet forces and had collaborated with them, or that he had expressed support for Hitler’s ideology (see paragraph 5 above). Accordingly, the court held that those statements should have had a sufficient factual basis.", "20. Seeking to determine whether the disputed statements had been factually accurate, the Vilnius Regional Court examined the evidence which had been collected in the criminal proceedings (see paragraph 8 above), as well as the sources indicated by V.P. himself in his written submissions to the court during the civil proceedings (see paragraph 13 above). The court found that none of those sources had been able to confirm any parts of the disputed statements to the standard of proof required in civil cases. 21.", "The Vilnius Regional Court next examined whether the disputed statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. As for the first three statements (see paragraph 5 above), it considered that, in the historical context of Lithuania, the allegations of collaboration with the Soviet security services or of support for Nazi ideology had clearly been insulting not only to V.L.-Ž. but also to his family, including V.L., who had been a prominent politician himself. As for the fourth statement (see paragraph 5 above), it considered that allegations of ejecting the pharmacy owners onto the streets and suing them for a wooden bench – an item of movable property of low value – had created the impression of V.L.-Ž.", "as someone with low moral standards and a lack of respect for others, and that that statement had therefore been insulting as well, not only to V.L.-Ž. himself, but also to his family. 22. The court dismissed the defendants’ objection that the case concerned the personal obligations of their father. It held that the domestic law provided several different remedies for victims of defamation in publications (see paragraph 36 below).", "On the one hand, the victim could ask the court to order the author of the work to retract the disputed statements, which would be a personal obligation on the part of the author which could not be transferred to his or her heirs. On the other hand, the victim could ask the court to declare that the disputed statements were erroneous and defamatory (insulting to the victim’s honour and dignity), in other words to request an objective assessment of those statements. Such an assessment could be made without the involvement of the author and would thus not constitute a personal obligation on the part of the author. Accordingly, the court held that, since V.L. had made the latter request (see paragraph 15 above), domestic law permitted the transfer of civil liability to the author’s heirs.", "23. As a result, the Vilnius Regional Court upheld one part of V.L.’s claim and declared that the disputed statements had been erroneous and insulting to his and his late father’s honour and dignity. It dismissed V.L.’s claim for compensation in respect of non-pecuniary damage as time‑barred. 2. Appeal proceedings 24.", "The applicant and her brothers lodged an appeal against the decision of the Vilnius Regional Court, presenting essentially the same arguments as before (see paragraphs 13 and 17 above). 25. On 13 August 2010 the Court of Appeal upheld that decision in its entirety. It firstly stated that the key difference between statements of fact and value judgments was that the truthfulness of the former could be verified and proved, whereas the latter expressed a subjective view to which the criteria of truthfulness or accuracy did not apply. The court held that, notwithstanding the fact that the book had been based on the author’s memories, the disputed statements had not been limited to expressing a subjective view on any persons or events, but alleged that certain actions had been taken and certain events had occurred.", "In the court’s view, the average reader, even when reading the disputed statements as part of the entire book and not “out of context” (see paragraph 13 above), would perceive them as statements of fact and not as value judgments. 26. The Court of Appeal agreed with the defendants that V.L.-Ž. and V.L. had been public figures and therefore had to tolerate greater levels of criticism.", "It observed that, in line with the case-law of the domestic courts, dissemination of factually inaccurate statements about a public figure did not attract civil liability when such statements concerned that person’s public activities and when their author had acted in good faith, seeking to inform society about such activities (see paragraph 35 below). Nonetheless, the Court of Appeal stated that this could not justify dissemination of falsehoods which were insulting to a person’s honour and dignity, even when they concerned a public figure. It held that, in the case at hand, the first-instance court had thoroughly examined the evidence collected during the criminal proceedings and the sources indicated by the author himself (see paragraph 20 above), and had reached the conclusion that, on the balance of probabilities, the events described in the disputed statements “were more likely not to have happened than to have happened”. The Court of Appeal also examined additional sources referred to in the defendants’ appeal, but found that they did not contain any information which would enable it to reach a different conclusion than that reached by the first‑instance court. It therefore held that the factual accuracy of the disputed statements had not been proved.", "The Court of Appeal also upheld the first‑instance court’s conclusion that those statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraph 21 above). 27. Lastly the Court of Appeal dismissed the defendants’ argument that they had been obliged to prove the truthfulness of their father’s memories and subjective opinions.", "It observed that the disputed statements had been found to constitute statements of fact and not value judgments and it had therefore been necessary to prove their factual accuracy and not the reasons why the author might have held certain opinions. The court stated that the factual accuracy of the disputed statements could be proved by anyone and not only by their author, and that the applicant and her brothers had been able to rely on the material collected during the criminal proceedings and on the submissions made by their father in the civil proceedings, as well as to submit new evidence themselves. The Court of Appeal also observed that the applicant and her brothers had accepted their father’s inheritance (see paragraph 14 above), which included the rights to reprint the book and to receive royalties from it. The court considered that if the author’s heirs had been exempted from the liabilities arising from the book, then the claimant, V.L., would have been denied any possibility to defend his rights against the erroneous and insulting statements published therein. 28.", "Consequently, the Court of Appeal upheld the first‑instance decision declaring the disputed statements erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. 3. Proceedings before the Supreme Court 29. The applicant and her brothers submitted an appeal on points of law, presenting essentially the same arguments as before (see paragraphs 13 and 17 above).", "30. On 14 March 2011 the Supreme Court dismissed that appeal. It underlined the importance of striking a fair balance between the right to freedom of expression and the right to respect for honour and dignity, but stated that the right to freedom of expression did not extend to the deliberate dissemination of falsehoods with the aim of humiliating, insulting or otherwise causing harm to others, even if directed at public figures. The Supreme Court observed that the lower courts had established that the disputed statements had been erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L.", "(see paragraphs 21 and 26 above); it therefore ruled that the dissemination of those statements could not be justified by the exercise of the right to freedom of expression. 31. The Supreme Court also reiterated that the claim submitted by V.L. did not constitute a personal obligation of the author of the book and could therefore be transferred to his heirs. It stated that the applicant and her brothers had accepted their father’s inheritance, which included certain rights to the book (see paragraph 14 above).", "Accordingly, once the court had declared that the disputed statements in the book had been erroneous and insulting to the honour and dignity of others, the author’s legal successors had the obligation to ensure that those statements would no longer be disseminated. II. RELEVANT DOMESTIC LAW AND PRACTICE 32. Article 22 of the Constitution affirms that private life is inviolable and that the law and courts will protect everyone from arbitrary or unlawful interference with his or her private and family life, as well as from encroachment upon his or her honour and dignity. 33.", "Article 25 of the Constitution provides that no one may be hindered from seeking, receiving, or imparting information and ideas, and that the freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order. Such freedom is incompatible with incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation. 34. Article 2.24 § 1 of the Civil Code provides that a person has the right to demand, in judicial proceedings, the retraction of disseminated statements which insult his or her honour and dignity and are erroneous. He or she also has the right to compensation for pecuniary and non‑pecuniary damage caused by the dissemination of such statements.", "Statements which have been disseminated should be presumed to be erroneous unless the publisher can prove the opposite to be true. 35. Article 2.24 § 6 of the Civil Code provides that a person who has disseminated erroneous statements is exempted from civil liability if those statements concern a public figure and his or her public activities and the person who has disseminated them proves that he or she acted in good faith, seeking to inform society about that public figure and his or her activities. 36. In its rulings of 6 November 2006 in civil case no.", "3K-3-569/2006 and of 13 November 2007 in civil case no. 3K-3-488/2007, the Supreme Court held that a person’s honour and dignity can be defended by a retraction of erroneous statements, or by a court’s declaration that such statements are erroneous and insult the person’s honour and dignity, or by awarding compensation in respect of pecuniary and non‑pecuniary damage. These remedies are independent of one another. 37. Article 48 § 1 of the Code of Civil Procedure provides that when a party withdraws from a case because of a death or in other instances provided for by law, the court may replace that party with its legal successor, except for the cases in which material rights cannot be transferred.", "Transfer of rights is possible at any stage of proceedings. 38. Article 5.1 of the Civil Code establishes which rights and duties of a deceased natural person can be transferred to his or her heirs. Inheritable items include material objects (movable and immovable things) and non‑material objects (securities, patents, trademarks, and so forth), property claims and obligations and, in cases provided for by law, intellectual property rights (authors’ property rights to works of literature, science and art, related property rights and rights to industrial property), as well as other property rights and duties stipulated by law. Non‑inheritable items include personal non-property and property rights inseparable from the person (such as the right to honour and dignity, authorship, right to author’s name, inviolability of creative work), except in cases provided for by law.", "39. Article 5.50 § 1 of the Civil Code provides that in order to receive an inheritance, the heir has to accept it. An inheritance cannot be accepted in part or conditionally. Article 5.60 § 1 establishes the heir’s right to refuse an inheritance. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicant complained that she had been held liable for the actions of her late father. She invoked Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 41. The Court 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.", "B. Merits 1. The parties’ submissions 42. The applicant submitted that in the domestic proceedings she had been held liable for the actions of her late father, without any fault of her own. She submitted that she had never agreed to inherit any rights to the book.", "She also argued that she had not been able to defend herself adequately in the domestic proceedings because she had not possessed the same knowledge which her late father had possessed when writing the book. The applicant further submitted that her father had not been held liable for the disputed statements whilst he had been alive, and she could therefore not have inherited a liability which had not existed at the time of his death. 43. The Government submitted that the applicant and her brothers had accepted their father’s inheritance in its entirety, as partial acceptance was not provided for in domestic law (see paragraphs 14 and 39 above). They had therefore inherited certain rights to the book, such as the right to reprint it and to receive royalties from it.", "The Government contended that if after an author’s death his or her civil liability could not be transferred to his or her legal successors, victims of defamation would not have any possibility to defend their honour and dignity. 44. The Government further submitted that the claimant in the domestic proceedings had not asked the applicant to retract her late father’s statements but had asked the courts to make an objective assessment of the truthfulness of those statements. Even though the applicant had had to bear the burden of proof, she had been able to rely on the submissions her late father made before his death, as well as on the information collected during the criminal proceedings, and the courts had been active in obtaining evidence. The Government therefore argued that the applicant had not been put in an unfair position.", "2. The Court’s assessment 45. At the outset the Court observes that the applicant’s father, who was the author of the book, was not, in his lifetime, held liable for defamation in either criminal or civil proceedings (see paragraphs 9‑11 and 14 above). However, it reiterates that while criminal proceedings cannot continue after a defendant’s death, a civil claim for compensation, by contrast, may be brought against the estate of a deceased defendant, and decided in accordance with the general rules of civil proceedings to the standard of proof required in those proceedings (see Vulakh and Others v. Russia, no. 33468/03, § 47, 10 January 2012).", "46. In the present case, the applicant and her brothers inherited their father’s estate in equal parts after his death (see paragraph 14 above). As stated by the domestic courts, that estate included the right to reprint the book and to receive royalties from it (see paragraphs 27 and 31 above). Although in her submissions before the Court the applicant argued that she had never agreed to inherit any rights related to the book, the Court observes that the domestic law did not allow heirs to accept an inheritance in part only (see paragraphs 39 and 43 above), and the applicant did not provide any evidence that that rule had not been applied in her case, nor did she raise that argument in the domestic proceedings (see paragraphs 17, 24 and 29 above). The Court therefore concludes that the applicant had accepted her late father’s inheritance, including certain rights to the book and, as a result, she stood to receive pecuniary gain from its continued dissemination.", "Accordingly, the domestic courts’ decision to replace the deceased initial defendant with the applicant (and her brothers, who were in the same situation) cannot be regarded as arbitrary or unjust. 47. The Court furthermore observes that in the domestic proceedings, the applicant was not asked to retract her late father’s words or to justify his subjective opinions – the domestic courts made it clear that they had been asked to make an objective assessment as to whether the disputed statements had been erroneous and defamatory as regards V.L.-Ž. and V.L. (see paragraphs 22, 27 and 31 above).", "That assessment was not dependent on any findings made against the applicant’s father before his death, and she was able to dispute all the aspects of the case (see, a contrario and under Article 1 of Protocol No. 1, Vulakh and Others, cited above, § 49; see also Lagardère v. France, no. 18851/07, § 47, 12 April 2012). The Court further observes that, even though the burden was on the applicant and her brothers to prove that the disputed statements had been factually accurate, the domestic courts were active in obtaining evidence in that regard – they examined not only the material provided by the applicant and her father before his death, but also the information collected by the prosecutor in the criminal proceedings (see paragraphs 20 and 26 above). 48.", "Taking all the above circumstances into account, the Court is satisfied that the civil proceedings against the applicant concerning her late father’s book were fair within the meaning of Article 6 § 1 of the Convention. There has accordingly been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 49. The applicant complained about the violation of her right to freedom of expression, protected by Article 10 of the Convention, which reads as follows: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 1.", "The parties’ submissions 50. The Government submitted that the applicant could not be considered the victim of a violation of Article 10 of the Convention because the domestic proceedings in question had been concerned with statements made by her late father and not by the applicant herself. The Government argued that, since the applicant had complained that she should not have been the defendant in the domestic proceedings, she could not at the same time complain that those proceedings had affected her freedom of expression. 51. The applicant submitted that she should be considered the victim of a violation of Article 10 because “the exercise of the freedom of expression of her father was transferred to her by the domestic courts”.", "2. The Court’s assessment 52. The Court reiterates that, in order to be able to lodge a petition by virtue of Article 34, a person must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be the victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, and Tănase v. Moldova [GC], no.", "7/08, § 104, ECHR 2010). 53. In the present case, the applicant, together with her brothers, succeeded her late father as the defendant in the civil proceedings concerning his book (see paragraph 14 above) because she had inherited the right to reprint the book and to receive royalties from it (see paragraphs 27, 31 and 46 above). In this connection, the Court notes that Article 10 of the Convention includes not only the freedom to hold opinions but also the freedom to impart information and ideas, and it has been applied numerous times in cases concerning interference with the rights of publishers who were not themselves the authors of the impugned publications (see, among many other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, § 75, 7 February 2012; Novaya Gazeta and Borodyanskiy v. Russia, no.", "14087/08, § 31, 28 March 2013; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 139-40, ECHR 2017 (extracts)). In the present case, the Supreme Court stated that, in their quality of legal successors of the author of the book, the applicant and her brothers had the obligation to ensure that the disputed statements, which were held to be erroneous and defamatory, would no longer be disseminated (see paragraph 31 above). In the Court’s view, this amounted to a limitation to the applicant’s right to reprint the book. Accordingly, the Court finds that the domestic proceedings directly affected the applicant’s right to impart information and ideas under Article 10, and that she must be considered a victim within the meaning of Article 34 of the Convention.", "The Government’s objection of lack of victim status should therefore be dismissed. 54. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 55. The applicant submitted that the interference with her right to freedom of expression had not been justified in law because no law required children to accept rights and obligations related to their parents’ freedom of expression. She also submitted that the interference had not sought a legitimate aim because V.L.-Ž. had been “a minister of the Nazi Government of Lithuania” and had therefore not been entitled to protection of his rights under Article 8 of the Convention.", "The applicant asked the Court to apply Article 17 of the Convention. 56. She also submitted that the disputed statements had sought to impart information and ideas on matters of public interest and it had thus been permissible for the author to have recourse to a degree of exaggeration or even provocation. She contended that those statements had referred to V.L.‑Ž., who had been a politician and therefore subject to wider limits of criticism. The applicant further argued that the domestic courts had incorrectly assessed the factual accuracy of the disputed statements, but in any event, they should have been read as value judgments based on her father’s memories, as shown by words “as far as I know” (see paragraph 5 above).", "57. The Government argued that the interference with the applicant’s right to freedom of expression had complied with Article 10 § 2 of the Convention. They submitted that such interference was prescribed by Articles 2.24 and 5.1 of the Civil Code and Article 48 of the Code of Civil Procedure (see paragraphs 34, 37 and 38 above), and it had sought the legitimate aim of protecting the reputation or rights of others, namely of V.L.-Ž. and V.L. The Government submitted that by calling V.L.-Ž.", "“a minister of the Nazi Government” (see paragraph 55 above) the applicant had gone even further than her father had done in the book; in any event, allegations of V.L.-Ž.’s support of the Nazi regime had been found to have no factual basis by the courts in the domestic proceedings. 58. The Government argued that protecting individuals from erroneous and defamatory statements corresponded to a pressing social need, even with respect to public figures. They submitted that the domestic courts had thoroughly assessed the disputed statements and had not found sufficient evidence to support them. The Government lastly submitted that the applicant had not suffered disproportionate consequences because the domestic courts had not ordered her to retract the disputed statements or to pay damages, nor had they prohibited further publication or sales of the book – the applicant and her brothers had only been obliged to ensure that the disputed statements would no longer be disseminated (see paragraph 31 above).", "The Government thus argued that the domestic courts had struck a fair balance between the applicant’s rights under Article 10 and the other party’s rights under Article 8 of the Convention. 2. The Court’s assessment (a) Existence of an interference 59. At the outset, the Court notes that there was no dispute between the parties that the decisions adopted by domestic courts in the civil proceedings against the applicant constituted an interference with her right to freedom of expression as guaranteed by Article 10 of the Convention. It sees no reason to hold otherwise and refers to its conclusions as to the applicant’s victim status (see paragraph 53 above).", "60. In the light of paragraph 2 of Article 10, such an interference with the applicant’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims and be “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 141). (b) Lawfulness of the interference 61. The Court is satisfied that the interference was in accordance with Article 2.24 of the Civil Code and the case-law of the Supreme Court (see paragraphs 34 and 36 above), and that the replacement of the initial defendant (the applicant’s father) with his legal successors (the applicant and her brothers) was in accordance with Article 5.1 of the Civil Code and Article 48 of the Code of Civil Procedure (see paragraphs 37 and 38 above). The interference was thus “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(c) Legitimate aim of the interference 62. The Court sees no reason to doubt that the interference pursued the legitimate aim of protecting the reputation or rights of others, namely of V.L.-Ž. and V.L. Although the applicant disputed that aim by arguing that V.L.-Ž. had not been entitled to protection of his rights under Article 8 of the Convention (see paragraph 55 above), the Court considers that this argument falls to be examined when assessing the necessity of the interference in a democratic society.", "It will therefore now proceed with assessing whether a fair balance has been struck between the applicant’s freedom of expression as guaranteed by Article 10 of the Convention and V.L.-Ž.’s and V.L.’s right to the protection of private life and reputation under Article 8. (d) Necessity of the interference in a democratic society (i) General principles 63. Having considered on numerous previous occasions similar disputes requiring an examination of the issue of a fair balance, the Court refers to the general principles relating to each of the rights in question that have been established in its case-law (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-107, ECHR 2012; Axel Springer AG, cited above, §§ 78-88; and Couderc and Hachette Filipacchi Associés v. France [GC], no.", "40454/07, §§ 83-92, 10 November 2015). These principles also apply to the publication of books, in so far as they concern matters of public interest (see Editions Plon v. France, no. 58148/00, § 43, ECHR 2004‑IV, and Verlagsgruppe Droemer Knaur GmbH & Co. KG v. Germany, no. 35030/13, § 37, 19 October 2017). 64.", "In cases such as the present one, where the national authorities had to balance two conflicting interests, the Contracting States have a certain margin of appreciation. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the exercise of striking a balance between two conflicting rights was undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover (no. 2), §§ 104-07, and Couderc and Hachette Filipacchi Associés, §§ 90-92, both cited above).", "65. The Court has identified, in so far as relevant for the present case, the following criteria in the context of balancing competing rights: the contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the news report; the content, form and consequences of the publication; the method of obtaining the information and its veracity; the prior conduct of the person concerned; as well as the severity of the sanction imposed (see Von Hannover (no. 2), §§ 109-13; Axel Springer AG, §§ 90-95; and Couderc and Hachette Filipacchi Associés, § 93, all cited above). (ii) Application of the above principles to the present case (α) Contribution to a debate of public interest 66. In the present case, the Court firstly observes that the book discussed various events in the history of Lithuania and individuals who had taken important roles in those events (see paragraph 5 above).", "It therefore considers that the contents of the book, including the disputed statements, concerned matters of public interest. (β) How well known was the person concerned and what was the subject of the report? 67. The Court further observes that V.L.-Ž. had been a minister in the Provisional Lithuanian Government in 1941, and the disputed statements discussed his alleged support for the Soviet and Nazi regimes in Lithuania.", "Accordingly, as a politician and a public figure, V.L.-Ž. was subject to wider limits of criticism than private individuals (see Otegi Mondragon v. Spain, no. 2034/07, § 50, ECHR 2011). However, the Court reiterates that while reporting on true facts about politicians’ or other public persons’ private life may be admissible in certain circumstances, even persons known to the public have a legitimate expectation of protection of, and respect for, their private life (see Standard Verlags GmbH v. Austria (no. 2), no.", "21277/05, § 53, 4 June 2009, and Halldorsson v. Iceland, no. 44322/13, § 46, 4 July 2017). (γ) Content, form and consequences of the publication 68. The Court notes that the defamatory nature of the statements was not disputed by the parties. Those statements presented serious accusations of collaboration with the Nazi and Soviet regimes in Lithuania, and the Court has no reason to doubt the assessment of the domestic courts that in the historical context of Lithuania such accusations were damaging not only to the reputation of V.L.-Ž.", "but also that of his son, V.L., who was a prominent Lithuanian politician (see paragraphs 21 and 26 above). 69. The domestic courts found that the disputed statements constituted statements of fact and not value judgments (see paragraphs 19 and 25 above), and the Court sees no good reasons to depart from their assessment. Those statements alleged that certain events had taken place – that V.L.-Ž. had for many years collaborated with the KGB, that he had been a supporter of Hitler, or that he had ejected the pharmacy owners onto the streets and had sued them over an oak bench (see paragraph 5 above).", "The applicant argued that those statements should be classified as value judgments because they had been based on her father’s memories and he had admitted that his knowledge had been limited (see paragraph 56 above), but the Court is unable to share this view ‑ the statements were not limited to expressing opinions or subjective views and were susceptible of proof (see, mutatis mutandis, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004-XI, and Kieser and Tralau-Kleinert v. Germany (dec.), no. 18748/10, §§ 36-37, 2 December 2014). The Court thus considers that the domestic courts cannot be criticised for having requested the applicant to support those statements by means of relevant evidence. (δ) Method of obtaining the information and its veracity 70.", "The Court emphasises the importance that it attaches to journalists’ assumption of their duties and responsibilities, and to the ethical principles governing their profession. In this connection, it reiterates that Article 10 protects journalists’ right to divulge information on issues of general interest subject to the proviso that they are acting in good faith and on an accurate factual basis and that they provide “reliable and precise” information in accordance with the ethics of journalism (see Pedersen and Baadsgaard, cited above, § 78, and Bédat v. Switzerland [GC], no. 56925/08, § 58, ECHR 2016). The Court considers that these principles are also relevant in the present case in which the author of the book was not a journalist but a writer (see, mutatis mutandis, Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 51, ECHR 2007-IV, and Verlagsgruppe Droemer Knaur GmbH & Co. KG, cited above, § 44).", "71. In the domestic proceedings, the applicant, being the defendant, had to prove to the civil standard that the disputed statements had had a factual basis (see paragraphs 18 and 34 above). The Court reiterates that placing such an onus on the defendant is not, in principle, incompatible with Article 10 of the Convention (see Steel and Morris v. the United Kingdom, no. 68416/01, § 93, ECHR 2005-II, and Europapress Holding d.o.o. v. Croatia, no.", "25333/06, § 63, 22 October 2009). In any event, the domestic courts did not rely solely on the applicant’s submissions, but also examined the evidence obtained by the prosecutor in previous criminal proceedings, including information received from various historical archives and research centres, as well as the sources indicated by the applicant’s late father before his death (see paragraphs 8, 13, 20 and 26 above). Having examined all that information, the courts concluded that the disputed statements had not been proved to be true to the standard required in civil proceedings. The Court sees no grounds to find that this conclusion was contrary to the facts of the case or otherwise arbitrary. It therefore concludes that the disputed statements, which constituted statements of fact (see paragraph 69 above) and were defamatory (see paragraph 68 above), had not been shown to have an accurate factual basis, and the applicant had not proved that they had been based on information obtained in accordance with the duties of journalists and the ethics of journalism (see paragraph 70 above).", "(ε) Prior conduct of the person concerned 72. The applicant argued that V.L.‑Ž. had not been entitled to protection of his rights under Article 8 of the Convention because of his alleged collaboration with the Nazi regime (see paragraph 55 above). However, the domestic courts found those allegations to be unsubstantiated by any available facts, and the Court accepts their conclusion as well-founded (see paragraph 71 above). It therefore considers that nothing in V.L.-Ž.’s prior conduct deprived him of protection against false and defamatory statements.", "The Court also considers that in the present case there are no grounds to apply Article 17 of the Convention in the manner requested by the applicant (see paragraph 55 above). (ζ) Severity of the sanction imposed 73. Lastly, the Court notes that the applicant was not given a monetary fine or ordered to pay damages; the only consequence for her was the obligation to ensure that, if the book were to be reprinted, the disputed statements would not be disseminated (see paragraphs 31, 53 and 58 above). The Court is of the view that, in the circumstances of the present case, such an obligation cannot be considered disproportionate. (η) Conclusion 74.", "Accordingly, taking into account the gravity of the accusations presented in the disputed statements, the fact that those statements were found to be unsubstantiated, and the nature of the penalty imposed on the applicant, the Court concludes that the domestic courts struck a fair balance between the applicant’s right to freedom of expression and the other party’s right to protection of their reputation. 75. There has therefore been no violation of Article 10 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been no violation of Article 6 § 1 of the Convention; 3. Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiFaris VehabovićDeputy RegistrarPresident" ]