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[ "FIRST SECTION CASE OF DZHURAYEV v. RUSSIA (Application no. 38124/07) JUDGMENT STRASBOURG 17 December 2009 FINAL 28/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dzhurayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38124/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Uzbekistan, Mr Yashin Yakubovich Dzhurayev (“the applicant”), on 3 September 2007. 2. The applicant was represented by Ms M. Morozova, 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.", "On 4 September 2007 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Uzbekistan until further notice. 4. On 24 April 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application, as well as 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 applicant was born in 1966 and lives in Tashkent, Uzbekistan.", "He is currently residing in Moscow. A. Proceedings in Uzbekistan 7. In January 2005, when the applicant was living in Uzbekistan, a district court in Tashkent convicted him of being a member of the Islamic religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan. The court ordered him to pay a fine in an amount equal to sixty times the minimum monthly wage.", "8. The applicant paid the fine and continued to reside in Uzbekistan. However, according to him, he felt constant pressure from the law‑enforcement agencies, which required him to report on all his actions and movements and, in case of delay or failure on his part, threatened to arrest his elder son. So as not to put his family in danger, on 6 December 2005 the applicant left Uzbekistan for Moscow. 9.", "In the meantime the Supreme Court of Uzbekistan quashed the decision of January 2005 on the ground that the sentence was too mild and remitted the case for fresh examination. 10. On 9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent ordered the applicant to be remanded in custody. On that basis a cross-border search warrant for the applicant was issued. B.", "Proceedings in Russia 1. Extradition proceedings 11. On 26 January 2007 the applicant was arrested in Moscow on the basis of the cross-border search warrant. 12. On an unspecified date the Tashkent Department of the Interior sent the Meshchanskiy District Department of the Interior of Moscow a request to keep the applicant in custody and enclosed a copy of the Sobir Rakhimovskiy District Court's decision of 9 January 2006.", "13. On 29 January 2007 the Meshchanskiy Inter-District Prosecutor's Office in Moscow issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the Uzbek court's decision of 9 January 2006. Article 61 of the Minsk Convention was cited as a legal source for application of the preventive measure. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against.", "On the same day the applicant was placed in remand prison SIZO-77/4, Moscow. 14. On 12 February 2007 the applicant applied to the Russian Prosecutor General's Office. He asked it to refuse the request of the Uzbek Prosecutor General's Office for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under Russian law. 15.", "On 28 February 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 16. On 23 March 2007 the Russian Prosecutor General's Office informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case. 17. On 29 June 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a new decision to remand the applicant in custody pursuant to Article 466 § 2 of the CCP and Article 60 of the Minsk Convention.", "The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. Neither the applicant nor his counsel was provided with a copy of the decision. The applicant was not notified of it until 27 July 2007, in the remand prison, as confirmed by his signature on a copy of the decision. 18.", "On 23 August 2007 the Russian Prosecutor General's Office dismissed the request of the Uzbek Prosecutor General's Office for the applicant's extradition because the acts with which the applicant had been charged did not constitute a crime under Russian law. 19. On 28 August 2007 the Meshchanskiy Inter-District Prosecutor's Office received notification from the Russian Prosecutor General's Office that the Uzbek authorities' request for the applicant's extradition had been dismissed. 20. On 30 August 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a decision authorising the applicant's release.", "The applicant was released from the remand prison. 2. Expulsion proceedings 21. On 30 August 2007, immediately after his release, the applicant was conveyed by policemen to the Meshchanskiy District Court of Moscow. At the hearing held on the same date, the court found the applicant guilty of an administrative offence: breach by a foreigner of the rules on entry and stay in the territory of the Russian Federation.", "The court imposed a fine of 5,000 Russian roubles on the applicant and ordered his expulsion. The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of the Moscow Main Directorate of Internal Affairs. The applicant appealed. 22. On 4 September 2007 the Court indicated to the respondent Government that the applicant should not be expelled to Uzbekistan until further notice.", "23. On 11 September 2007 the Moscow City Court quashed the decision of the Meshchanskiy District Court and the applicant was released. 3. Further developments 24. On 28 September 2007 policemen stopped the applicant in the Moscow underground in order to check his papers.", "It appeared that the applicant was still on the cross-border wanted list, and he was taken to a police station for a decision concerning his arrest. After his counsel arrived and clarified the applicant's situation, he was released. The applicant then applied to the Office of the Prosecutor General to be removed from the list. 25. On 1 October 2007 the Russian Prosecutor General's Office ordered the Ministry of the Interior to remove the applicant's name from the cross‑border wanted list owing to the refusal to extradite him.", "4. Asylum proceedings 26. On 2 February 2007 the applicant applied to the Moscow Department of the Federal Migration Service for asylum. 27. On 16 March 2007 officials of the Moscow Department of the Federal Migration Service questioned the applicant in the presence of his counsel.", "28. On 26 March 2007 the Moscow Department of the Federal Migration Service dismissed the applicant's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum. The applicant lodged a complaint with a court. 29. On 23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint.", "The applicant appealed. 30. On 18 October 2007 the Moscow City Court dismissed the appeal in the final instance. 31. On 13 November 2007 the applicant was recognised as a mandate refugee by the United Nations High Commissioner for Refugees.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Constitution of the Russian Federation of 1993 32. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order.", "The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2). 2. Code of Criminal Procedure 33. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54).", "34. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 35. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1).", "A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 36.", "Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 37.", "Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). 38. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 3. The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the 1993 Minsk Convention) 39.", "When performing actions requested under the Minsk Convention, a requested official body applies its country's domestic laws (Article 8 § 1). 40. Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 41. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition.", "The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 4. Decisions of the Constitutional Court (a) Decision of the Constitutional Court no. 101-O of 4 April 2006 42.", "Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant case‑law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 43. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein. (b) Decision of the Constitutional Court no.", "158-O of 11 July 2006 on the Prosecutor General's request for clarification 44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 45. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition.", "That was a matter for the courts of general jurisdiction. (c) Decision of the Constitutional Court no. 333-O-P of 1 March 2007 46. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (f) AND 4 OF THE CONVENTION 47. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unlawful. The relevant parts of Article 5 § 1 read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 48.", "He also complained under Article 5 § 4 and Article 13 of the Convention that he had been unable to challenge the lawfulness of his detention in Russia before a court. Considering that Article 5 § 4 is lex specialis to Article 13, the Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties' arguments 1. The Government 49. The Government contested the applicant's arguments.", "They insisted that he had not exhausted the domestic remedies available to him because he had not lodged complaints about unlawful actions of a prosecutor to either a higher prosecutor or a court as he was entitled to do under Articles 124 and 125 of the CCP. In particular, he had not appealed against the decisions of the Meshchanskiy Inter-District Prosecutor's Office of 29 January and 29 June 2007. The Government disagreed with the applicant's assertion that Article 125 of the CCP had been inapplicable in his situation as it concerned only “parties to criminal proceedings”. They referred in this respect to Article 123 of the CCP, under which not only “parties to criminal proceedings” but also “other persons” were entitled to complain about a prosecutor's actions. 50.", "The Government further submitted that the applicant's detention awaiting a decision on the extradition request was lawful under both Russian law and the Minsk Convention. The terms of detention pending extradition were regulated in part by the Minsk Convention and by Chapter 13 of the CCP, as had been clarified by the Ruling of the Russian Constitutional Court of 4 April 2006. The maximum term of detention could not exceed eighteen months. The applicant had spent about seven months in custody, which appeared to be a reasonable time. 2.", "The applicant 51. The applicant disagreed with the Government and emphasised that he had had no effective domestic remedies to exhaust in relation to his complaints. In fact on 12 February 2007 he had applied to the Prosecutor General's Office under Article 124 of the CCP, asking to be released from custody; on 26 March 2007 the Prosecutor General's Office had informed him that there were no grounds to change the preventive measure because the extradition request was still being examined. The applicant had not been notified of the ruling of 29 June 2007 until 27 July 2007 and had thus been deprived of an opportunity to challenge it before a higher prosecutor. The applicant further argued that he had been unable to complain to a court under Article 125 of the CCP because he had not been charged with any criminal offence in Russia.", "52. The applicant asserted that Russian laws concerning detention pending extradition did not comply with the Convention criteria of quality of law. He also claimed that the length of his detention pending extradition had been excessive. 53. Lastly, the applicant asserted that his detention between 23 and 30 August 2007 had had no legal basis and had thus been arbitrary.", "B. The Court's assessment 1. Admissibility 54. Turning to the Government's plea of non-exhaustion, the Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint under Article 5 § 4 of the Convention. Thus, the Court finds it necessary to join the Government's objection to the merits of this complaint.", "The Court further notes that the applicant's complaints under Article 5 §§ 1 and 4 are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Article 5 § 4 of the Convention 55. The Court will first examine the applicant's complaint under Article 5 § 4 of the Convention.", "56. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release.", "The existence of the remedy required by Article 5 § 4 must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Talat Tepe v. Turkey, no. 31247/96, § 72, 21 December 2004). 57. The Court first notes that the applicant was detained pending extradition on the basis of two decisions of the inter-district prosecutor's office. Neither decision indicated that it was open to appeal (see paragraphs 13 and 17 above).", "The first decision, of 29 January 2007, stated that the applicant was being detained under Article 61 of the Minsk Convention, while the second one, of 29 June 2007, cited Article 466 § 2 of the CCP and Article 60 of the Minsk Convention as legal grounds for the detention. 58. The Court points out in this respect that domestic legal provisions should be applicable where actions are performed under the Minsk Convention (see paragraph 39 above). The Minsk Convention does not contain any rules on procedure for challenging a decision on placement in custody pending extradition under its Articles 60 and 61. Accordingly, the applicant had no remedies deriving from that Convention to challenge the lawfulness of his detention pending extradition.", "59. The Government emphasised that the inter-district prosecutor's office had based its decisions concerning the applicant's detention on the decision of the Sobir Rakhimovskiy District Court of Tashkent of 9 January 2006, pursuant to Article 466 § 2 of the CCP. The Court observes that it is clear that the applicant had no avenue to challenge the lawfulness of an arrest warrant issued by an Uzbek court before a Russian court and was thus unable to obtain a judicial review of the lawfulness of his detention on the basis of that warrant. 60. As to the Government's reference to Chapter 13 of the CCP, the Court points out that the only provision of this Chapter governing complaints about the lawfulness of custodial detention provides that a court's decision on placement in custody is appealable to a higher court (see paragraph 35 above).", "Chapter 13 remains silent when it comes to detention authorised by a prosecutor, not a court. Therefore, the applicant had no possibility to complain to a court about the inter-district prosecutor's office's decisions of 29 January and 29 June 2007 under the provisions of Chapter 13 of the CCP, as suggested by the Government. 61. As to the Government's assertion that the applicant could have complained about the unlawfulness of his detention to a prosecutor or a court under Articles 124 and 125 of the CCP, the Court observes that Chapter 16 of the CCP concerns the possibility for “parties to criminal proceedings” to challenge decisions taken in the course of a preliminary investigation, such as a decision not to initiate criminal proceedings or a decision to discontinue them. There is no indication that the applicant was a party to criminal proceedings within the meaning given to that phrase by the Russian courts (see Muminov v. Russia, no.", "42502/06, § 115, 11 December 2008, and Nasrulloyev v. Russia, no. 656/06, § 89, 11 October 2007). Furthermore, the Government have provided no explanation as to how the applicant could have claimed to qualify as “other persons” within the meaning of Article 123 of the CCP to be able to challenge officials' acts and decisions “touching upon” his interests. Moreover, it is clear from the wording of Article 125 of the CCP that “other persons” within the meaning of Article 123 of the CCP do not have a right to complain before a court about officials' acts and decisions. Thus, the Court is not persuaded that the provisions of Chapter 16 of the CCP could have been applied in the applicant's case as suggested by the Government.", "62. In such circumstances the Court concludes that the Government failed to show that the existence of the remedies invoked was sufficiently certain both in theory and in practice and, accordingly, that these remedies lack the requisite accessibility and effectiveness (see A. and E. Riis v. Norway, no. 9042/04, § 41, 31 May 2007, and Vernillo v. France, 20 February 1991, § 27, Series A no. 198). The Government's objection concerning non-exhaustion of domestic remedies must therefore be dismissed.", "63. It follows that throughout the term of the applicant's detention pending a decision on his extradition he did not have at his disposal any procedure for a judicial review of its lawfulness. There has therefore been a violation of Article 5 § 4 of the Convention. (b) Article 5 § 1 of the Convention 64. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI).", "The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 162, ECHR 2009‑...). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). 65.", "It is common ground between the parties that the applicant was detained as a person “against whom action is being taken with a view to deportation or extradition” and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was “lawful” within the meaning of Article 5 § 1 of the Convention, 66. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998-VI; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII; and Saadi, cited above, § 67). 67.", "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 therefore review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III; Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX; and Ladent v. Poland, no. 11036/03, § 47, ECHR 2008-... (extracts)). 68. Turning to the circumstances of the present case, the Court observes that the applicant's initial placement in custody was ordered, on 29 January 2007, by the inter-district prosecutor's office on the basis of the provisions of the Minsk Convention.", "The Court also notes that, although the decision of 29 January 2007 contained no reference to Article 466 § 2 of the CCP, the prosecutor's authority under domestic law to decide on the applicant's placement in custody without a Russian court order must have derived from that provision (see paragraph 38 above). 69. The Court points out that neither Article 61 of the Minsk Convention nor Article 466 § 2 of the CCP stipulate any rules on procedure to be followed when choosing a preventive measure in respect of a person whose extradition is sought, or any time-limits for his or her detention pending extradition. 70. The Court observes in this respect that by the time of the applicant's placement in custody the Russian Constitutional Court had already proclaimed that in extradition proceedings the right to liberty should be attended by the same guarantees as in other types of criminal proceedings.", "It unambiguously indicated that the application of preventive measures with a view to extradition should be governed not only by Article 466 but also by the norms on preventive measures contained in Chapter 13 of the CCP (see paragraph 43 above). 71. Furthermore, the Government confirmed that the applicant's detention pending extradition had been governed by Chapter 13 of the CCP, among other provisions. 72. In such circumstances the Court considers that, in order to be “lawful” within the meaning of Article 5 § 1 (f) of the Convention, the applicant's detention should be compatible not only with the requirements of Article 466 § 2 but also with the provisions governing application of a preventive measure in the form of placement in custody, namely Articles 108 and 109, which are included in Chapter 13 of the CCP.", "73. Article 108 § 4 of the CCP expressly provides that an issue of placement in custody is to be decided upon by a judge of a district or military court in the presence of the person concerned. It follows from the wording of Article 5 § 48 and Article 31 § 2 of the CCP that a district court is a court authorised to act on the basis of the Russian Code of Criminal Procedure, which implies that the term “district court” refers to a court established and operating under Russian law. Accordingly, a judge of a district court is an official authorised to administer justice on the territory of the Russian Federation. Nothing in the wording of Article 108 § 4 of the CCP suggests that a foreign court may act as a substitute for a Russian district court when deciding on a person's placement in custody.", "74. Accordingly, the fact that the applicant's placement in custody was not authorised by a Russian court is clearly in breach of Article 108 § 4 of the CCP. 75. Furthermore, even assuming that the applicant's initial placement in custody was compatible with domestic legal provisions, it would have ceased to be “lawful” after the lapse of the two-month period provided for by Article 109 § 1 of the CCP. Article 109 § 2 of the CCP unequivocally stipulates that the two-month term of custodial detention can be prolonged up to six months only on the basis of a decision by a judge of a district court or a military court of corresponding level.", "In the absence of any Russian court decision to extend the applicant's custodial detention, the Court is bound to conclude that after 27 March 2007, that is, past two months from the date of his placement in custody, the applicant was detained in breach of domestic law. 76. The Court thus finds that the applicant's detention pending extradition cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. In these circumstances, the Court does not need to consider separately the applicant's additional arguments concerning the quality of domestic law, the length of his detention and his delayed release. 77.", "There has therefore been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 79.", "The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 80. The Government considered the amount claimed to be excessive and observed that, should the Court find a violation of the Convention in respect of the applicant, the mere finding would suffice as just satisfaction. 81. The Court notes that it has found violations of two provisions of Article 5 in respect of the applicant.", "The Court thus accepts that he has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and finds it appropriate to award the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 82. The applicant also claimed EUR 900 for the costs and expenses incurred before the domestic authorities and EUR 850 for those incurred before the Court. In support of his claims he submitted a copy of an agreement with his lawyer.", "83. The Government did not comment on the applicant's claims for costs and expenses. 84. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,750 covering costs under all heads.", "C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's objection as to non‑exhaustion of criminal domestic remedies and rejects it; 2. Declares the application admissible; 3.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), in respect of non-pecuniary damage, and EUR 1,750 (one thousand seven hundred and fifty euros), in respect of costs and expenses, plus any tax that may be chargeable to the applicant on these amounts, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF TOPEKHIN v. RUSSIA (Application no. 78774/13) JUDGMENT STRASBOURG 10 May 2016 FINAL 17/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Topekhin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "78774/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Topekhin (“the applicant”), on 14 December 2013. 2. The applicant was represented by Ms S. Sidorkina, 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 that he had not received adequate medical care in detention, that the conditions of his detention and transport to a correctional colony had been inhuman and unsuitable for a partly-paralysed detainee such as himself, that the length of his detention on remand had been excessive, and that his appeal against detention orders had not been examined speedily. 4. On 2 April 2014 the Court granted priority to the application under Rule 41 of the Rules of Court and dismissed the applicant’s request for interim measures under Rule 39 of the Rules of Court. 5. On 18 November 2014 the application was communicated to the Government and the priority treatment was lifted.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1982 and until his arrest lived in Moscow. A. Criminal proceedings against the applicant 7.", "On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money. 8. On 24 January 2013 the applicant was accused of aggravated fraud.", "The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police. 9. On 16 July 2013 he was arrested and taken to a police custody facility. The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice. 10.", "The applicant appealed. He referred to, among other things, his poor health. 11. On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand. 12.", "On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation. 13.", "The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the District Court. 14.", "On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release. 15. On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name. 16.", "On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified. 17. On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow.", "It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release. 18. On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony.", "19. On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years. B. The applicant’s detention, transfer conditions and medical treatment in detention 1. Police ward 20.", "For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward. 21. His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission. 2.", "Remand prisons 22. On 24 July 2013 the applicant was taken to remand prison no. IZ‑77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension.", "He was considered to be in good health. 23. According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and 5.7 square metres.", "Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government. 24. According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided.", "He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness. 25. The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist.", "26. On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins. 27.", "The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head. 28. On 13 November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no. IZ-77/1 in Moscow for more comprehensive treatment. 29.", "The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication.", "His health improved, but not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9 December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release. 30. From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no.", "20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release.", "31. The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no.", "20. 32. A report drawn up on 31 December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release. 33.", "The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period. 34. On 15 January 2014 the applicant was again taken to Moscow City Hospital no.", "20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”. 35. Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility.", "Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled. 36.", "On 14 February 2014 the applicant was taken to remand prison no. 77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed.", "37. On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away. 3. Transfer to correctional colony 38. In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station.", "The trip took two hours. 39. At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary.", "40. In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way.", "He was then taken back to the train station in Yaroslavl. 41. At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours.", "At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled. 42. Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014. 43.", "On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour. 44. The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates.", "While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers. 4. Correctional colony 45.", "The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable. 46.", "The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures. 47. The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15 April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release.", "48. On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds. 49. The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal.", "Two days later the applicant was released. II. RELEVANT DOMESTIC LAW A. Extension of detention 50. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgments of Pyatkov v. Russia (no.", "61767/08, §§ 48-68, 13 November 2012) and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009). B. Health care of detainees 51. The relevant provisions of domestic and international law on the general health care of detainees are set out in the judgments of Vasyukov v. Russia (no.", "2974/05, §§ 36-50, 5 April 2011) and Khudobin v. Russia (no. 59696/00, § 56, 26 October 2006, ECHR 2006‑XII (extracts)). C. Detention of disabled detainees 52. The Russian Code on the Execution of Sentences sets out certain requirements for the detention of disabled detainees. While Article 99 § 1 provides for a minimum standard of 2 sq.", "m of personal space for male convicts in correctional colonies and 3 sq. m of personal space in prison health care facilities, Article 99 § 6 indicates that inmates with a category 1 or 2 disability are entitled to “improved accommodation and living conditions”. Article 88 § 6 provides that disabled detainees have a right to buy food and articles of primary necessity without any limitations. Article 90 allows ill or disabled inmates to receive additional parcels or packages, including ones containing medication, the content and quantity of which must be determined by medical specialists. Under Article 99 §§ 6 and 7 disabled inmates must be provided with food, clothing and toiletries free of charge.", "They are also entitled to an enriched diet. 53. Russian law does not contain specific rules or requirements regulating the detention of wheelchair-bound detainees. III. RELEVANT INTERNATIONAL MATERIAL 54.", "The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol. Article 1of the Convention provides: “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The relevant part of Article 14 provides: “2.", "States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” The relevant part of Article 15 provides: “2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The requirements regulating personal mobility are laid down in Article 20, which reads as follows: “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities; Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.” 55. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ...", "In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ... 53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’.", "This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” IV. RELEVANT COUNCIL OF EUROPE MATERIAL 56. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64. Certain specific categories of particularly vulnerable prisoners can be identified.", "Prison health care services should pay especial attention to their needs.” ... iv) prisoners unsuited for continued detention “70. Typical examples of this kind of prisoner are those who are the subject of a short‑term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” ... g. Professional competence “76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers.", "At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.", "77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 57. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: III. The organisation of health care in prison with specific reference to the management of certain common problems C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis “50.", "Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...” 58. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: IV. Guidelines for prison staff conduct D. Care and assistance “19.", "Prison staff shall be sensitive to the special needs of individuals, such ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody.", "They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 59. The applicant complained that he had not been afforded adequate medical treatment in detention, excluding the periods when he had been treated in Moscow City Hospital no.", "20, and that the conditions of his detention and transfer to the correctional colony had been degrading. He relied on Article 3 of the Convention, which reads: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The Governments’ submissions 60. The Government argued that their obligations under Article 3 of the Convention had been fully discharged.", "As regards the applicant’s medical treatment, they submitted that shortly after his very first complaint to the resident doctor in October 2013, he had been subjected to an in-depth medical examination and had received comprehensive medical treatment comprising injections, a drug regimen and physiotherapy. The authorities had used their utmost efforts to restore his health. In support of their arguments the Government submitted the applicant’s complete medical file. 61. As regards the conditions of his detention, the Government considered that they had been in line with the requirements of the Convention.", "The applicant had thus had an individual sleeping place and had been afforded sufficient living space. The authorities had ensured that he had been assisted with his daily needs by personal care workers and inmates after his health had deteriorated. 62. Lastly, the Government stated that the escort authorities had taken cognisance of the applicant’s illness when arranging for him to be transferred. The vehicles used had been suitable for transporting bedridden detainees.", "The Government submitted the applicant’s itinerary, the train schedule and a written statement by officers who had escorted the applicant in Yaroslavl (see paragraph 40 above). 2. The applicant’s submissions 63. The applicant maintained his complaints, arguing that in August 2013 he had lost movement in his legs and since then had been confined to bed, being assisted only by inmates. The remand prisons had not been equipped to detain seriously ill inmates, had not employed trained “assistive personnel” and had been unable to provide him with the required neurological treatment.", "He provided the Court with a copy of a written transcript of an interview given by an inmate to his lawyer on 17 March 2014. The inmate stated that the applicant had complained of headaches and back and leg pain from the first few days of his detention, but had still retained his ability to walk and had not required any assistance at that time. However, a fall from the upper bunk in August 2013 had resulted in the applicant’s leg becoming completely paralysed. The inmate noted that the applicant had become confined to his bed and had only received assistance from inmates who had volunteered to help. 64.", "Lastly, the applicant disputed the Government’s description of the vehicles used to transfer him. He indicated that the Gazel minivan had only been equipped to transport bedridden patients. B. The Court’s assessment 1. Admissibility 65.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Medical treatment (i) General principles 66.", "The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Verbinţ v. Romania, no.", "7842/04, § 63, 3 April 2012, with further references). 67. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).", "68. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicants received adequate medical assistance in prison.", "The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). 69. The “adequacy” of medical assistance remains the most difficult element to determine.", "The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no.", "72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211). The Court further reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment the State authorities have committed themselves to providing to the entire population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of treatment as is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no.", "2447/05, § 66, 7 February 2012). 70. On the whole, 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).", "(ii) Application of the above principles to the present case 71. Turning to the facts of the present case, the Court notes that the applicant, a seriously ill person suffering from paraplegia and a number of related conditions, including serious bowel and bladder dysfunctions, was detained from 16 July 2013 to 18 August 2014. He argued that his health had significantly deteriorated in detention, as a result of the authorities’ failure to comply with their obligations under Article 3 of the Convention and to provide him with the requisite medical care. 72. The Court has to undertake a first-hand evaluation of a significant quantity of medical evidence in order to determine whether the guarantees of Article 3 of the Convention have been respected in the present case.", "73. At the outset it observes that the Government submitted extensive medical documents, including the applicant’s medical file drawn up in detention, treatment summaries, test results and medical opinions. The documents cover the entire period of the detention. The applicant did not dispute the authenticity or quality of those documents. The Court therefore has no reason to doubt their accuracy and reliability.", "74. In the light of this, the Court is unable to accept the applicant’s allegations that although he had developed a pain syndrome and had lost the ability to move in August 2013, he had remained without any medical attention for two months, until October 2013. The medical record indicated that he had applied for medical assistance for the first time in October 2013, complaining of pain in his back, head and abdomen (see paragraph 25 above). That date will be accordingly taken by the Court as the date when the authorities became aware, for the first time, of the early signs of the applicant’s paraplegia. 75.", "The Court further observes that as soon as the authorities became aware of the applicant’s health problems they put him on a drug regimen, (see paragraph 25 above). Several days later he was admitted to the prison medical unit, where he underwent the necessary testing for the prompt and correct diagnoses. He was seen by various doctors, including a neurologist, and prescribed comprehensive treatment (see paragraph 26 above). Further complex examinations, such an analysis of the cerebrospinal fluid, followed. These were scheduled and performed in a timely and proper manner (see paragraph 29 above).", "The applicant’s drug regimen was amended when necessary and his treatment strategy went far beyond attempts aimed at mere pain relief. It was aimed at fully restoring the lost use of the applicant’s legs. There is nothing in the Court’s possession to show that the prescribed treatment was not administered properly or was interrupted. The detention authorities continued with the treatment, providing prescribed drugs and injections, irrespective of the place of the applicant’s detention, whether in hospital or a standard detention facility (see paragraphs 31, 33, 36 and 45 above). They also introduced physiotherapy for him, thus ensuring that the he had access to a key component of the rehabilitation process (see paragraph 34 above).", "76. In these circumstances the Court finds no evidence to support the applicant’s assertion that the deterioration of his health had been brought about by insufficient or poor treatment. The Court cannot disregard others factors, which he himself did not exclude, such as the steady development of his back disorders rooted in the injuries sustained in 2008 and 2010 (see paragraph 22 above) and aggravated by a new injury received in detention (see paragraph 24 above). The Court also attributes particular weight to the fact that the independent medical specialist, who had assessed the quality of the applicant’s treatment at his lawyer’s request, did not identify any serious defects in the treatment, merely accentuating the general need to treat him in a neurological hospital (see paragraph 35 above). The specialist noted the applicant’s bedsores.", "However, the Court considers that they are not so much a matter of the quality of medical treatment but rather of the general care and conditions of the applicant’s detention, which will be addressed by the Court under a separate heading. 77. To sum up, the Court considers that the authorities provided the applicant with the requisite medical assistance in detention. Accordingly, there has been no violation of Article 3 of the Convention on that account. (b) Conditions of detention (i) General principles 78.", "The Court further reiterates that Article 3 of the Convention requires the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method in which the measure is enforced do not subject them 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 Kudła, cited above, §§ 92-94, ECHR 2000‑XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012). 79. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Z.H. v. Hungary, no.", "28937/11, § 29, 8 November 2012; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004). 80. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this had taken place on a regular basis.", "In addition to being cared for by his family, the applicant, who had a physical disability, was assisted by the medical staff during working hours and was helped by other inmates outside working hours on a voluntary basis. The Court expressed its concerns in the following terms (§ 60): “ The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.” 81. The Court has also held that detaining a disabled person in a prison where he cannot move around and, in particular, cannot leave his cell independently, amounts to degrading treatment (see Vincent v. France, no.", "6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed contributes to its finding that the conditions of detention amount to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010). (ii) Application of the above principles to the present case 82. Turning to the facts of the present case, the Court observes that the parties submitted conflicting descriptions of the conditions of the applicant’s detention in remand prisons nos.", "77/1 and 77/2 (see paragraphs 61 and 63). The Government argued that he had been assisted by personal care workers and detainees, while he stated that assistance had only been provided by inmates as the facilities had not employed staff to assist him with his daily needs. 83. The Court has previously held that in certain instances the respondent Government alone have access to information capable of firmly corroborating or refuting allegations under Article 3 of the Convention and that failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see, for example, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).", "84. In this respect, the Court considers that it was for the Government in the present case to demonstrate that the detention authorities had arranged the necessary general care and assistance for the applicant, who had been clearly unable to care for himself independently owing to serious leg impairment. The Government however failed to submit any evidence, such as staff registration logs or employment certificates, statements by attending doctors, by the medical staff who had allegedly cared for him or, at least, by the applicant’s inmates, confirming that the detention facilities accommodating him had employed a sufficient number of personal care workers and that the staff had provided him with the necessary assistance with his daily needs. The applicant, on the other hand, not only gave a detailed and consistent description of the circumstances, but provided the Court with statements by his inmate confirming his allegations (see paragraph 63 above). In these circumstances the Court concludes that the applicant was left received no assistance from trained staff, but was forced to rely entirely on the help of his inmates.", "85. The Court has already found a violation of Article 3 of the Convention in cases in which prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, first aid (see, Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, and, mutatis mutandis, Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). The circumstances of the present case are even more acute because the applicant’s need for bedside assistance was exceptionally high.", "It is evident that his inmates were unable to provide such enhanced assistance, which requires special skills and knowledge. This fact is accentuated by the presence of bedsores, developed outside the hospital, which were recorded by the resident doctor and noted by the independent medical expert as a sign of neglect on the part of the authorities (see paragraphs 30 and 35 above). The Court is prepared to conclude that the developed bedsores indicated that the applicant was not repositioned regularly, was forced to spend much time in bed in one position, and was not regularly bathed or his skin was not kept clean. The situation was further aggravated by the fact that the applicant suffered from bladder and bowel dysfunction (see paragraph 32 above). The absence of proper general care and assistance could have also contributed to development of the bedsores, through the delay in notifying the prison doctors of their appearance, given that the inmates assisting the applicant were not trained to duly recognise the early signs of bedsores or offer treatment to prevent them developing further.", "86. In addition, the Court finds that the applicant’s inevitable dependence on his inmates and the need to ask for their help with intimate hygiene procedures put him in a very uncomfortable position and adversely affected his emotional well-being, impeding his communication with the cellmates who could have been dissatisfied with the burdensome work they had to perform involuntarily. 87. In addition, the conditions of the applicant’s detention were further exacerbated by the failure to provide him with, as is apparent from the documents submitted by the parties, a hospital bed or any other equipment, such as a special pressure-relieving mattress, which could have afforded him at the very least a minimum level of comfort during more than a year of detention. 88.", "To conclude, the Court finds that the conditions of the applicant’s detention in the remand prisons were such as to qualify as inhuman and degrading treatment. There has thus been a violation of Article 3 of the Convention on that account. (c) Conditions of transfer 89. The Court reiterates that the applicant complained about the conditions of his transfer to the correctional colony from the first train station to the final destination. He gave a sufficiently detailed and consistent description of the conditions in which he was transferred.", "The respondent Government provided the Court with an itinerary of the trip. They also contended that the conditions of the transfer corresponded to the needs of bedridden patients. They did not however submit any information as to the special adjustments made or equipment installed on the trains or prison van in which the applicant travelled. The only items of evidence lodged by the Government which could have shed at least some light on the conditions of the applicant’s transfer were the written statements by two escort officers. They noted that the applicant had spent about two hours lying on a thin blanket on the hard floor of the prison van while being taken to and from the remand prison in Yaroslavl the only reason being for, it appears, a change in the escort crew (see paragraph 40 above).", "The Court notes that the escort officers’ statements supported the applicant’s statements that in Yaroslavl he had been transported lying on the floor of a prison vehicle. 90. In these circumstances, the Court accepts the veracity of the applicant’s description of the conditions of his transfer and will base on it the examination of his complaint in this respect (see Yevgeniy Bogdanov v. Russia, no. 22405/04, § 103, 26 February 2015, and Igor Ivanov v. Russia, no. 34000/02, §§ 34‑35, 7 June 2007).", "91. The Court observes that the applicant was transported to the correctional colony in standard train carriages and prison vans with no special equipment installed to meet the needs of a bedridden person suffering from a serious back condition and bladder problems. The first part of the trip took nine hours, during which he was confined to a bunk in the train carriage. The trip, which could have presented no serious issues for a healthy inmate, had an evident detrimental effect on the applicant. 92.", "The Court has established that during the following part of the trip he spent at least two hours being driven in a prison van to and from a detention facility in Yaroslavl. The Court is concerned that the authorities failed to take any corrective measures to meet the applicant’s needs during the transfer, treating with indifference his complaints of acute pain when he was lying on the hard floor of the prison van or being carried around on a blanket used as a stretcher. His being placed directly on the floor of the van exposed him to vibrations from the road during the journey and resulted in him suffering additional pain. Given his fragile condition, the Court is mindful of the possible negative impact such treatment could have had for his back and legs. 93.", "The applicant’s trip to the correctional colony was completed after a further five hours on a train and a journey in a prison van. The Court does not find any evidence that the conditions on the train or in the van were in any way different from those during the first part of his trip. 94. In these circumstances, the Court takes the view that the cumulative effect of the material conditions of the applicant’s transfer, and the duration of the trip, were serious enough to qualify as inhuman and degrading treatment within the meaning of Article 3 of the Convention (see Tarariyeva v. Russia, no. 4353/03, §§ 112-117, ECHR 2006‑XV (extracts)).", "95. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 96. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons.", "He relied on 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.” A. The parties’ submissions 97. The Government argued that the Russian courts had authorised the applicant’s arrest because they had had sufficient reasons to believe that he had committed a serious criminal offence. When authorising or extending his detention, they had taken into account the seriousness of the charges, the nature of the criminal offences in question, and the risk of him absconding if released.", "Given that the applicant had been on the run from January to July 2013, and a forged passport had been discovered in his flat during a search, the courts had correctly considered this to be a real risk. Moreover, they had duly considered the applicant’s state of health and examined the possibility of applying other, less strict preventive measures, but had found them insufficient to offset the above-mentioned risks. 98. The applicant argued that the authorities had known of his serious illness, and that his state of health had warranted his release. His diagnosis had diminished the risk of him absconding or reoffending.", "However, the courts had continued extending his detention on far-fetched grounds. The detention orders had been issued as a mere formality. B. The Court’s assessment 1. Admissibility 99.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible. 2. Merits (a) General principles 100. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist.", "In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable.", "A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8).", "Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). 101. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention.", "Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention.", "It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012, and Suslov v. Russia, no. 2366/07, § 86, 29 May 2012, with further references).", "(b) Application to the present case 102. The applicant was arrested on 16 July 2013 and convicted on 13 January 2014. The period to be taken into consideration is therefore slightly less than six months. 103. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion that he had committed large‑scale fraud and presented a flight risk.", "It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings. 104. The seriousness of the charges was one of the factors for assessing the applicant’s potential to abscond, reoffend or obstruct the course of justice (see paragraphs 9, 12, 16 and 17 above). However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Panchenko v. Russia, no.", "45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov, cited above, § 81; and Letellier v. France, 26 June 1991, § 51, Series A no. 207). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention. 105.", "The Court observes that while extending the applicant’s detention, the Russian court attached particular weight to the risk of him absconding. The evaluation of that risk was based on his previous behaviour, namely his attempt to abscond and his being on the run from January to July 2013; his being unemployed and thus having no ties with his place of residence in Moscow, and the discovery by the police of a forged passport (see paragraphs 9, 12, 16 and 17 above). 106. The Court accepts the reasonableness of the Russian courts’ concerns that the applicant was likely to abscond. The evidence before them convincingly demonstrated that such a risk existed.", "The applicant had previously attempted to escape (see paragraph 8 above) and had again demonstrated to the authorities his determination to go on the run when they discovered the false passport (see paragraph 15 above). His unemployment could not, on its own, warrant his detention, but was capable of adding weight to the Russian courts’ finding that he posed a flight risk. 107. The Court also finds it significant that when deciding whether it was necessary to continue the applicant’s detention, the Russian courts took into account his condition after hearing from the attending doctors or examining other medical evidence. The Court does not lose sight of the fact that the applicant’s state of health drastically changed in October 2013 when he lost the ability to move unaided.", "In November 2013 it appears he entirely lost the use of his legs. While the Court accepts that those developments decreased the risk of him absconding, the risk was not entirely eliminated given his resourcefulness both when it came to his financial situation and his ability to organise his escape, including through the forgery of official documents. The Court therefore accepts that the Russian courts thoroughly evaluated and balanced the risk in question (see Amirov v. Russia, no. 51857/13, § 108, 27 November 2014, in which no violation of Article 5 § 3 of the Convention was found on account of the continued detention on remand of a wheelchair-bound inmate with a need for constant medical supervision). 108.", "The Court concludes that there were relevant and sufficient grounds for the applicant’s detention pending investigation and trial. The assessment of these reasons, however, cannot be detached from the actual length of detention on remand. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 109. In the present case, the applicant was held in detention on remand for less than six months.", "The domestic courts assessed the diligence of the investigative authorities and concluded that the length of the investigation was justified by the complex nature of the case. The Court notes that there is nothing in the material submitted to show any significant period of inactivity on the part of the prosecution or the court (see, for similar reasoning, Amirov, cited above; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Sopin v. Russia, no. 57319/10, 18 December 2012; Arutyunyan v. Russia, no. 48977/09, 10 January 2012; and Buldashev v. Russia, no.", "46793/06, 18 October 2011). In such circumstances, the competent domestic authorities cannot be said to have not displayed special diligence in handling the applicant’s case. 110. There has accordingly been no violation of Article 5 § 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 111. The applicant complained that his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. He relied on Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Submissions by the parties 112. The Government acknowledged that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, since his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. 113.", "The applicant maintained his complaint and took note of the Government’s admission. B. The Court’s assessment 1. Admissibility 114. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 115. The Court takes note of the Government’s acknowledgment of the violation of Article 5 § 4 of the Convention.", "It notes that the applicant’s appeals against the detention orders dated 16 July and 13 September 2013 were examined by the domestic courts in thirty-four and sixty days respectively (see paragraphs 11 and 14 above). In these circumstances, and having regard to its case-law (see, for example, Idalov, cited above, §§ 154‑158), the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of that provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117. The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. 118. The Government argued that the amount claimed was excessive.", "119. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 19,500 in compensation for non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 120. The applicant also claimed EUR 500 for legal services.", "121. The Government argued that the applicant had not provided any evidence in support of his claim to show that those expenses had indeed been incurred. 122. 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 lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses.", "C. Default interest 123. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 3 of the Convention on account of the quality of medical treatment provided to the applicant in detention; 3.", "Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand prisons; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony; 5. Holds that there has been no violation of Article 5 § 3 of the Convention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention; 7. Holds (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 amount, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: EUR 19,500 (nineteen 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; 8.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "FOURTH SECTION CASE OF RUPA AND ŢOMPI v. ROMANIA (Application no. 60272/09) JUDGMENT STRASBOURG 2 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Rupa and Ţompi v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 4 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60272/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Iosif Gabriel Rupa (“the first applicant”) and Mrs Rita Țompi (“the second applicant”), on 4 November 2009.", "2. The applicants were represented by Mr I. Lazăr, a lawyer practising in Alba‑Iulia. The Romanian Government (“the Government”) were represented by their co-agent, Ms I. Cambrea, and their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. On 23 January 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1992 and is currently serving a prison sentence in Aiud Prison, while the second applicant is his mother and lives in Aiud. 5. The first applicant was arrested on 24 October 2008 on suspicion of multiple thefts, together with several other accused.", "He was 15 years old at the time. The prosecutor ordered that he be remanded in custody for ten hours and applied for him to be placed in pre-trial detention for fifteen days. 6. The Alba-Iulia District Court (“the District Court”) allowed the prosecutor’s office’s application the same day. The reasons adduced by the court to justify the first applicant’s detention were the strong suspicion that the offences had been committed, as well as the repeated nature and the gravity of the offences.", "7. In assessing the impact on the public the first applicant’s release from detention would have, the court stressed that the acts had allegedly been committed by a significant number of perpetrators over a long period of time. It noted that prior measures against the first applicant, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts. 8. In an indictment dated 18 November 2008 the prosecutor’s office attached to the District Court charged the first applicant and six other defendants with thirteen counts of theft allegedly committed between 25 April and 9 September 2008.", "9. The first applicant’s pre-trial detention was regularly extended by interlocutory judgments of the District Court. 10. The reasons adduced by the court were that, although he was a minor, there was a reasonable suspicion that he was guilty of the thefts and would pose a danger to public order, given that he had developed a habit of stealing. His age was not considered to be an argument in favour of his release pending trial.", "Furthermore, in one of the interlocutory judgments it was mentioned that he did not have an occupation or place of work and thus would be unable to support himself by honest means – there was therefore a risk that he would continue to commit theft. 11. The first applicant lodged appeals on points of law against the extension of his detention. He claimed, inter alia, that he was a minor, that he had committed the offences under the influence of his co‑defendants, who were adults with a criminal record, and that his detention among adults without access to education had had a negative impact on him. He also stated that, under national law and the Court’s case-law, detention of a minor should be a preventive measure of last resort.", "12. The Alba County Court consistently dismissed the first applicant’s appeals, endorsing the reasoning of the lower court for keeping him in detention. 13. The first applicant lodged a request for his pre-trial detention to be replaced with alternative measures, such as a ban on him leaving town. He said that he had already been detained for 180 days and therefore the initial reasons for extending his detention no longer applied.", "He also submitted that he had had time to understand the consequences of his criminal behaviour and had changed. The second applicant and the first applicant’s uncle made written statements promising to take responsibility for supervising him if released, and presented to the court a job offer that he could take up if released. 14. On 15 June 2009 the District Court dismissed the first applicant’s request. It had regard to the gravity of the offences allegedly committed by him, the severity of the sentence that could be applied to him and the risk of him reoffending.", "The judgment was upheld by the Alba County Court, which dismissed the first applicant’s appeal on points of law for the same reasons. 15. On 23 November 2009 the first applicant was eventually convicted of theft and sentenced to five years’ imprisonment by the District Court. On 17 May 2010 an appeal on points of law by him against this judgment was dismissed by the Alba Court of Appeal. 16.", "According to information submitted by the Government, the first applicant was detained in prisons for adults between 24 October 2008 and 9 March 2010, but did not share his cells with adult prisoners. Moreover, between 24 October and 24 November 2008 he occupied an individual cell. His contact with adult prisoners was very limited. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 17.", "Article 160h of the Romanian Code of Criminal Procedure, as in force at the time of the events, provided that for minors between 14 and 16 years of age pre-trial detention could only be extended on an exceptional basis. 18. Relevant international materials concerning the deprivation of liberty of juveniles are set out in the cases of Nart v. Turkey (no. 20817/04, §§ 17‑19, 6 May 2008) and Blokhin v. Russia ([GC], no. 47152/06, §§ 79, 82, 86 and 87, ECHR 2016).", "THE LAW I. PRELIMINARY ISSUE 19. The Government noted that the application had been lodged by the first applicant, a minor at the time, and his mother, the second applicant. The first applicant had since reached the age of majority and had been represented before the Court by a lawyer of his choice. They submitted that since the second applicant had not claimed to be victim of a violation of her rights set forth in the Convention, the part of the application concerning her should be dismissed as inadmissible ratione personae with the provisions of the Convention.", "20. The applicants did not file any submissions in this connection. 21. The Court notes that the application form was lodged jointly by the first and second applicants, at a time when the first applicant was still a minor. The second applicant was his legal representative in the domestic proceedings, but did not bring any complaints of her own before the Court.", "22. That being so, the Court considers that the second applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that the application, in so far as it concerns her, must be declared inadmissible as being incompatible ratione personae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 23. The first applicant complained that his pre-trial detention had been unreasonably long and that the domestic courts had provided stereotyped reasoning for keeping him in detention, without taking into account the fact that he was a minor.", "He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 24. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The Government’s submissions 25. The Government submitted that the first applicant’s pre‑trial detention had been justified by the evidence against him and the gravity of the offences. The District Court had only ordered the first applicant’s pre‑trial detention after noting that other more lenient measures, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts.", "It had also noted that he had been a minor at the time. The domestic courts’ decisions extending the first applicant’s pre‑trial detention had been duly reasoned, providing replies to all the arguments raised by the first applicant and his lawyer. 26. The Government also contended that the domestic authorities had handled the case with diligence. A bill of indictment had been issued four months after the first applicant had been remanded in custody, and the criminal proceedings against him had lasted less than two years.", "2. The Court’s assessment 27. The Court will examine the first applicant’s complaint in the light of the general principles emerging from its case-law concerning the reasonableness of detention within the meaning of Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, ECHR 2016). 28.", "The Court notes from the outset that the applicant was taken into custody on 24 October 2008 (see paragraph 5 above) and sentenced by the first‑instance court on 23 November 2009 (see paragraph 15 above). Consequently, the total duration of his pre-trial detention amounted to one year and one month. 29. The Court also notes that under the important international texts referred to above (see paragraph 18 above) the pre-trial detention of minors should only be used as a measure of last resort; it should be as short as possible and, where detention is strictly necessary, minors should be kept apart from adults (see Nart v. Turkey no. 20817/04, § 31, 6 May 2008).", "30. Moreover, under the Romanian Code of Criminal Procedure, in force at the relevant time, minors should only be remanded in pre-trial detention on an exceptional basis (see paragraph 17 above). 31. The Court has already found violations of Article 5 § 3 of the Convention where children have been held in pre-trial detention for considerably shorter periods than that spent by the applicant in the present case (see Selçuk v. Turkey, no. 21768/02, §§ 30-37, 10 January 2006; and Nart, cited above, §§ 29-35).", "For example, in Selçuk the applicant spent four months in pre-trial detention when he was 16 years old and in Nart the applicant spent forty-eight days in detention when he was 17 years old. In the present case, the first applicant was detained from the age of 15 and kept in pre‑trial detention for a period of one year and one month. 32. Furthermore, the case file reveals that, during his detention, the first applicant was kept in a prison together with adults (paragraph 16 above). However, the Court notes that he did not raise any complaint about this in his initial application and therefore this issue is not within the scope of the present case before the Court.", "33. The Court notes that, although the domestic courts repeatedly relied on the validity of the initial grounds justifying the first applicant’s detention – the fact that he posed a danger to public order, the severity of the sentence if convicted, the fact that he was a repeat offender and the risk of him committing further offences – they failed, with the passage of time, to give specific reasons why terminating his pre-trial detention would have a negative impact on society or on the investigation (see paragraphs 10 and 14 above). 34. The Court accepts that the first applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed serious repeated offences. However, with the passage of time, those grounds inevitably became less and less relevant.", "Accordingly, the domestic authorities were under an obligation to examine his personal situation in greater detail and give specific reasons for holding him in custody (see Tiron v. Romania, no. 17689/03, § 40, 7 April 2009, and Leontiuc v. Romania, no. 44302/10, § 77, 4 December 2012). 35. In the light of the foregoing, the Court considers that in the circumstances of the present case the domestic authorities failed to give comprehensive reasoning for applying a custodial measure to a 15 years old applicant for almost a year and one month which, under both international and domestic law, should have only been used as a measure of last resort.", "36. There has therefore been a violation of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 38. The first applicant claimed 1,664 euros (EUR) in respect of pecuniary damage for loss of the salary that he could have earned from the company which had offered him a job between 1 October 2009 and 17 June 2010 (when his conviction was upheld by the appellate court). He also claimed EUR 71,336 in respect of non-pecuniary damage. 39. The Government argued that there was no causal link between the alleged violation and the loss of salary claimed by the first applicant.", "Moreover, they considered the sum claimed in respect of non‑pecuniary damage excessive and argued that a finding of a violation would constitute sufficient just satisfaction. 40. The Court shares the Government’s view that there is no causal link between the violation found and the pecuniary damage claimed (see, mutatis mutandis, Khudoyorov v. Russia, no. 6847/02, § 221, ECHR 2005‑X (extracts)), and therefore rejects this claim. On the other hand, it considers that the first applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis, the Court awards the first applicant EUR 660 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 41. The first applicant did not ask for a reimbursement of any costs and expenses. The Court therefore makes no award under this head.", "C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 5 § 3 of the Convention in respect of the first applicant admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the first applicant, within three months, EUR 660 (six hundred sixty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF DİRİ v. TURKEY (Application no. 68351/01) JUDGMENT STRASBOURG 31 July 2007 FINAL 31/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Diri v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsA. Mularoni,MrD.", "Popović, judges,and Mrs F. Elens-passos, Deputy Section Registrar, Having deliberated in private on 10 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68351/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sabri Diri (“the applicant”), on 2 March 2001. 2. The applicant, who had been granted legal aid, was represented by Mr Elban and Mr Kırdök, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant alleged in particular that he had been ill-treated during his detention in the Tekirdağ F-Type Prison and that the authorities had failed to conduct an effective investigation into his allegations. He invoked Articles 3 and 13 of the Convention. 4.", "On 15 April 2001 the applicant asked the Court to request the Turkish Government, under Rule 39 of the Rules of Court, to order a medical examination of the applicant, with a view to establishing the traces of falaka. 5. On 31 May 2001 the President of the Third Section of the Court decided to apply Rule 39 of the Rules of Court and informed the respondent Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to conduct a medical examination of the applicant, in particular a Magnetic Resonance Imaging (MRI) scan and/or a bone scintigraphy. 6. On 20 January 2006 the Court decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1969 and currently lives in Switzerland. Background to the case 8.", "The applicant, convicted of membership of an illegal organisation, was serving his prison sentence in the Ümraniye E-Type Prison in Istanbul at the time of the events. 9. In December 2000 a large number of prisoners, including the applicant, started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. In the course of these operations, numerous prisoners and members of the security forces were wounded and 32 persons died.", "Following these events, on 22 December 2000 the applicant was transferred from Ümraniye E-Type Prison to the Kocaeli Kandıra F-Type Prison, together with several other prisoners. The Government stated that the applicant showed resistance to the security forces during the operation in the Ümraniye E-Type Prison. In a medical report issued by the Kocaeli Kandıra F-Type Prison doctors on 22 December 2000, it was noted that the applicant had scars on the right side of his jaw and nose; bruises on his eye lids, a round hyperaemic oedema on his head measuring 3 cm and sensitivity on his abdomen. The report concluded that the applicant was unfit to work for one week. The applicant maintained that he was beaten on admission to the Kandıra F-Type Prison.", "The applicant's detention in the Tekirdağ F-Type Prison 10. On 23 February 2001 the applicant was transferred to the Tekirdağ F‑Type Prison. On admission to the prison, he was allegedly strip searched and beaten and his hair and moustache forcibly cut. He also stated that he was put in a cell alone and was forced to listen to loud music. According to the applicant, as he refused to stand up and shout his name during the daily headcounts, he was subjected to ill-treatment by the prison guards, in particular falaka (beating on the soles of the feet).", "11. On 24 February 2001 and 3 March 2001, respectively, the applicant was examined by the prison doctor, who did not find any signs of ill-treatment on the applicant's body. 12. On 4 March 2001 the applicant's lawyer filed a petition with the Tekirdağ public prosecutor's office and complained about the ill-treatment which the applicant had suffered in the Tekirdağ prison. He also requested that the applicant be examined by a forensic doctor.", "13. The Tekirdağ public prosecutor initiated an investigation into the applicant's allegations. Upon the order of the public prosecutor, on 8 March 2001 the applicant was examined once again by the prison doctor, who reported that there were no signs of ill-treatment on his body. On the same day, the Tekirdağ public prosecutor took a statement from the applicant. Before the prosecutor, the applicant explained that, on admission to the Tekirdağ Prison, the prison personnel had shaved his hair and moustache by force and that he had been stripped naked.", "He further maintained that he had been placed in a single cell and subjected to falaka twice. 14. On 14 March 2001 the public prosecutor issued a decision of non‑prosecution relying on the medical reports dated 24 February, 3 March and 8 March 2001, according to which there was no sign of ill-treatment on the applicant's body. 15. On 6 April 2001 the applicant filed an appeal against the decision of the public prosecutor.", "16. On 19 April 2001 the Kırklareli Assize Court rejected the applicant's appeal. 17. Following the introduction of the present application, on 31 May 2001 the Court requested the Government to conduct further medical examinations on the applicant, namely a bone scintigraphy and a Magnetic Resonance Imaging scan (MRI). 18.", "On 26 June 2001 the Government submitted two medical reports dated 13 and 14 June 2001 which had been drawn up as a result of the MRI scan and the bone scintigraphy respectively. The MRI report dated 13 June 2001 stated the following: “Bone signal intensity was normal. Bone contours were regular. Achilles tendon signal characteristics and thickness were normal. No pathology in the soft tissues was detected.", "Result: Normal Note: An increased intensity observed in the fat suppression sequences in the medial regions of both feet is attributed to the coil artefact.” The bone scintigraphy report dated 14 June 2001 read as follows: “Examination of dynamic, blood flow and blood pool images of both feet taken following intravenous injection of 20mCi Tc-99m MDP and of delayed static and anterior/posterior images of the whole body taken four hours later revealed the following: In both feet, blood flow was normal; increased activity uptake was observed in the blood pool phase in the areas of the lower extremity of the left tibia and the ankle. The delayed static images revealed increased radiopharmaceutical uptake in the lower extremities of both tibias and in the bones of the big toe (more noticeable in the right foot). Increased radiopharmaceutical uptake was also observed in the left-tibia joint and the upper fibula. Apart from in the regions indicated above, radiopharmaceutical distribution and uptake in the skeletal system fell within normal limits. Both kidneys were visualised slightly.", "Conclusion: The increased radiopharmaceutical uptake in the regions described above is indicative of traumatism.” 19. On 19 July 2001, taking into account the applicant's poor health due to the hunger strike, the authorities released him from prison for six months. 20. On 25 September 2001 the Tekirdağ public prosecutor requested the Forensic Medicine Institute to make an assessment of the applicant's bone scintigraphy result, in particular to indicate the cause of the findings mentioned in the report. 21.", "In the meantime, on 16 October 2001 having regard to the findings indicated in the bone scintigraphy, the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus (yazılı emir) should be issued to restart the investigation into the applicant's allegations of ill-treatment. On 17 October 2001 the General Directorate of Criminal Law Issues wrote to the Tekirdağ public prosecutor, requesting his opinion on the matter. In his reply dated 28 December 2001, the public prosecutor argued that, as the bone scintigraphy test did not reveal the exact cause or the timing of the injuries, a writ of mandamus to quash the decision of the Kırklareli Assize Court could not be issued in the circumstances of the present case. 22. On 30 November 2001 the Forensic Medicine Institute replied that the findings mentioned in the bone scintigraphy report could not have resulted from rheumatism or the hunger strike, but were caused by a trauma.", "23. On 7 December 2001 the Tekirdağ public prosecutor asked the Forensic Medicine Institute to clarify whether it was possible to determine the date when these injuries had been sustained. 24. On 12 December 2001 the Forensic Medicine Institute replied that it was not possible to make such an assessment. 25.", "The applicant returned to the Tekirdağ F-Type Prison on 5 April 2002, but was released once again on 12 April 2002 for another six months. 26. On 2 September 2006 the applicant's lawyer requested an additional expert report from Dr Şebnem Korur Fincancı, a forensic expert. Dr Fincancı was asked to evaluate the findings of the bone scintigraphy test dated 14 June 2001 and to assess whether the findings indicated in the report matched the applicant's allegation of falaka. In this connection, Dr Fincancı was provided with a written statement by the applicant, in which he gave a detailed description of the ill-treatment to which he had been subjected in the Tekirdağ F-Type Prison.", "In this statement, the applicant explained that, as a protest against the F-Type prison system, he had refused to stand up and shout his name out during the daily headcounts. When he did not obey the warnings of the prison guards, a large group of guards entered his cell and started beating him, while two guards held his arms and another two secured his feet. Then one guard sat on the applicant's abdomen and another placed his hand over the applicant's mouth. After they had tied his feet with a belt, several guards struck his feet with their belts. 27.", "In her report dated 11 September 2006, Dr Fincancı concluded that when the static and dynamic images of the bone scintigraphy test were examined together, the findings in the report corresponded to the applicant's allegation of falaka. She further opined that the trauma complained of was inflicted on the applicant about three months prior to the test. While drafting her report, Dr Fincancı had regard to the applicant's previous medical reports dated 22 December 2000, 24 February 2001, 3 March 2001 and 8 March 2001. 28. In response to the report of Dr Fincancı, the Government submitted another report issued by the Forensic Medicine Institute dated 9 January 2007 which contradicted Dr Fincancı, stating that the findings in the bone scintigraphy test did not reveal the cause of the injuries on the applicant's feet and that it was not possible to make an evaluation as to when these injuries could have been sustained.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained in the first place that the prison conditions in the Tekirdağ F-Type Prison breached Article 3. He maintained in particular that on admission to the prison he had been strip searched and his hair and moustache forcibly cut. He also maintained that he had been kept alone in a cell and forced to listen to loud music.", "Secondly, the applicant complained that he had been beaten and subjected twice to falaka, when he refused to participate in the daily headcounts. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 30. The Government contested those arguments. A. Concerning the conditions of detention 31.", "The applicant complained under Article 3 that, on admission to the Tekirdağ F-Type Prison, he had been strip searched and his hair and moustache forcibly shaved; he had been kept in a cell alone and subjected to loud music. 32. The Court recalls that it has in the past examined similar complaints and declared them inadmissible (see, Gündoğan v. Turkey (dec.), no. 29/02, 13 December 2005; Yılmaz Karakaş v. Turkey (dec.), no. 68909/01, 9 November 2004).", "It finds no particular circumstances in the instant case, nor any elements apt to disclose treatment of the prohibited severity, which would require it to depart from this jurisprudence. 33. In view of the above, the Court concludes that the applicant has not laid the basis of an arguable claim and that this part of the application should therefore be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. B. Concerning the alleged ill-treatment 1.", "Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits a) The alleged ill-treatment i. General principles 35. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no.", "25657/94, § 390, ECHR 2001-VII (extracts)). 36. Furthermore, the Court reiterates that, in respect of a person deprived of liberty, recourse to physical force which has not been made strictly necessary by the individual's own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 38; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).", "37. Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties. 38. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no.", "25656/94, § 264, 18 June 2002; Avşar, cited above, § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142). 39. Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000-VII). ii. Submissions of the parties 40. In the present case, the applicant complained that he had been subjected to falaka twice, when he resisted standing up and shouting his name out during the daily headcounts. 41.", "The Government denied that the applicant had been ill-treated. They stated that the applicant must have sustained these injuries in the course of the incidents that took place in December 2000 in the Ümraniye E-Type Prison. They also stated that the applicant's allegation that he had been subjected to falaka in the Tekirdag F-Type Prison was unsubstantiated since there was twenty-four hour video surveillance in that prison. The Government further explained that the applicant had been examined three times by the prison doctor who had found no traces of ill-treatment on his body. They argued that, since there were no traces on his body, the doctor was not required to transfer the applicant to a hospital for further tests.", "Any such obligation in that regard would, in the Government's opinion, impose an excessive burden on the authorities. They also maintained that, although the bone scintigraphy results revealed that the applicant's feet had been exposed to trauma, in their view this did not necessarily mean that the applicant had been subjected to falaka as alleged. A trauma could have been caused by stress or insufficiency fractures. In this connection, the Government referred to the fact that the applicant had been on a hunger strike for a long time and that his bones had been weakened due to improper nourishment and a lack of physical exercise. In the absence of any concrete evidence proving the origin and the timing of the injuries, the Government maintained that the applicant's ill-treatment allegations should be considered as unsubstantiated.", "iii. The assessment of the Court 42. In line with the above-mentioned case-law, the Court remains free to make its own assessment in the light of all the material before it (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 86, ECHR 1999‑V). 43.", "The Court notes that the findings indicated in the bone scintigraphy report dated 14 June 2001 and the medical report issued by the Forensic Medicine Institute on 30 November 2001 are consistent with the applicant's allegation that he had been subjected to falaka in the Tekirdağ F-Type Prison. As clearly indicated in these reports, the injuries to the applicant's feet could not have been caused by rheumatism or the result of his hunger strike. They could only have been sustained by trauma. The Court takes note of the Government's observations that these injuries must have been caused during the incidents which took place in the Ümraniye E-Type Prison in December 2000. In this connection, it refers to the medical report dated 22 December 2000, which noted several injuries on the applicant's body.", "The Court does not see any reason why the doctors who examined the applicant on 22 December 2000 would not have reported the injuries to the applicant's feet if they had been sustained on that occasion. It further notes that the Government maintained that the trauma could have been caused by stress fractures or insufficiency fractures; however these submissions are not supported by any convincing evidence. As a result, the Court concludes that the injuries to the applicant's feet must be attributable to a form of ill-treatment for which the authorities at Tekirdağ bore responsibility. 44. As to the seriousness of the treatment in question, the Court reiterates that, under its case-law in this sphere (see, among other authorities, Selmouni, cited above, §§ 96-97), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.", "It appears that it was 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. 45. In this connection, the Court considers that the treatment complained of was inflicted on the applicant intentionally by the prison guards with the purpose of punishing him and of breaking his physical and moral resistance to the prison administration. In these circumstances, the Court finds that this act was particularly serious and cruel and capable of causing severe pain and suffering. It is therefore concludes that this sort of ill-treatment amounted to torture within the meaning of Article 3 of the Convention.", "46. There has consequently been a violation of Article 3 on that account. b) The alleged inadequacy of the investigation 47. The applicant further maintained, under Article 3, that the authorities had not conducted an adequate investigation into his complaints of ill-treatment. 48.", "The Government denied this allegation. They stated that the domestic authorities had conducted a serious investigation into the applicant's allegations. 49. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible.", "Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 50. Turning to the facts of the present case, the Court observes that the applicant brought his complaints of ill-treatment to the attention of the authorities by filing a complaint with the Tekirdağ public prosecutor on 4 March 2001 (paragraph 12 above). In his petition, the applicant also requested to be examined by a forensic doctor.", "On 8 March 2001, upon the order of the public prosecutor, the applicant was once again examined by the same prison doctor, who did not report any signs of ill-treatment on the applicant's body. The same day, a short statement was taken from the applicant, who repeated his allegations of ill-treatment. At this point, the Court notes with regret that the public prosecutor omitted to request any further medical examination, to take statements from the accused prison guards or to question witnesses and the prison doctor who had drafted the three medical reports dated 24 February 2001, 3 March 2001 and 8 March 2001, before delivering his decision of non-prosecution. In delivering his decision, the prosecutor limited himself to the three medical reports which merely stated that there was no sign of ill-treatment on the applicant's body. The Court recalls in this connection that proper medical examinations are an essential safeguard against ill-treatment.", "The forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope (see, Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 55 and § 118, ECHR 2000‑X). In the instant case, the medical reports dated 3 and 8 March 2001, which were drafted by the prison's own doctor, provided limited medical information and did not include any explanation by the applicant as regards his complaints. 51. The Court also finds it noteworthy that, after the bone scintigraphy results dated 14 June 2001 and the subsequent report of the Forensic Medicine Institute dated 30 November 2001, which confirmed that the injuries to the applicant's feet could only have been sustained by a trauma, the public prosecutor, who had the authority under Article 167 of the Criminal Code to restart the domestic investigation into the applicant's allegations of ill-treatment, took no further action.", "It is further noted that, although the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus should be issued to restart the investigation into the applicant's allegations of ill-treatment, the public prosecutor gave a negative opinion on this proposal, stating that the bone scintigraphy results did not indicate the cause or the timing of these injuries. The Court considers that, had the public prosecutor restarted the domestic investigation on the basis of this new evidence, he could have collected valuable information as to how and when these injuries might have been sustained. 52. In the light of the above, the Court concludes that the applicant's claim that he was subjected to falaka during his detention in the Tekirdağ F-Type Prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention. 53.", "There has therefore been a procedural violation of Article 3 in this regard. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54The applicant alleged under Article 13 that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment. 55. The Government contested that argument.", "56. The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible. 57. However, having regard to the finding relating to Article 3 (see paragraphs 49-53 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13. III.", "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 30,000 euros (EUR) in respect of non-pecuniary damage. 60.", "The Government contested the claim. 61. The Court finds that the applicant must have suffered pain and distress which cannot be compensated solely by the Court's finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non-pecuniary damage. B.", "Costs and expenses 62. The applicant also claimed a total of EUR 9,826.18 for the costs and expenses incurred before the domestic courts and for those incurred before the Strasbourg Court. 63. The Government contested this claim. 64.", "The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, and ruling on an equitable basis, the Court awards the applicant a global sum of EUR 2,500 in respect of costs and expenses less the sum of EUR 850 received in legal aid from the Council of Europe. 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 complaint concerning the prison conditions inadmissible and the remainder of the application admissible; 2. Holds that there has been a substantive violation of Article 3 of the Convention on account of the applicant's torture in the Tekirdağ F-Type Prison; 3. Holds that there has been a procedural violation of Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant's allegations that he was tortured in the Tekirdağ F-Type Prison; 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 amounts 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: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) received in legal aid; (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 31 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. F. Elens-passosF. TulkensDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ERDŐS v. HUNGARY (Application no. 38937/97) JUDGMENT STRASBOURG 9 April 2002 FINAL 09/07/2002 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 Erdős v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrL.", "Loucaides,MrC. Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 May 2001 and 12 March 2002, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "38937/97) against the Republic of Hungary 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 Hungarian national, Mr Zoltán Erdős, on 16 August 1993. Following Mr Erdős’s death, on 15 February 1999 his son and successor in the domestic proceedings, Mr Zoltán Erdős (“the applicant”) stated that he wished to pursue the application. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary of the Ministry of Justice. 3.", "The applicant alleged, in particular, that the civil proceedings, which began in 1984 before the Buda Central District Court were excessively 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 3 May 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 Second Section. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS 9. In October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. He claimed some outstanding royalty fees on account of the workshop’s manufacture and sale of a series of foldable beds based on his invention. 10. In September 1986 the Buda Central District Court informed the plaintiff that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants.", "11. On 28 April 1987 the District Court, for reasons of competence, discontinued the proceedings and transferred the case to the Budapest Regional Court. On 4 February 1988 the Regional Court held that it had no competence in the case either, and requested the Supreme Court to designate the competent court. 12. On 5 May 1988 the Supreme Court designated the Buda Central District Court to hear the case.", "On 10 November 1988, 16 February, 26 April, 21 June and 20 October 1989, 20 March and 29 June 1990, the District Court held hearings. Meanwhile, on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. 13. In its judgment of 6 July 1990 the District Court awarded the plaintiff 714,070 Hungarian forints (HUF), plus accrued interest. 14.", "On appeal, on 22 May 1991 the Budapest Regional Court held a hearing, quashed the first-instance judgment and instructed its own competent bench to re-hear the case. It pointed out that, due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence. 15. On 20 December 1991, 17 June, 15 July and 4 November 1992 the Regional Court held hearings. On the latter date it ordered the plaintiff to elaborate his claims within thirty days.", "16. On 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims. 17. On 17 February and 28 April 1993 the Regional Court held hearings. The hearings scheduled for 1 September and 10 December 1993 and 9 March 1994 were adjourned.", "18. On 4 May 1994 the Regional Court decided to obtain a technical expert opinion. On 28 September 1994 it put concrete questions to an expert institution, which on 27 October 1994 renounced the request. On 7 November 1994 another expert was appointed who presented his opinion on 19 December 1994. 19.", "On 1 March 1995 the Regional Court held a hearing. On this occasion the plaintiff again modified his claims. A hearing scheduled for 17 May 1995 was adjourned. On 16 June 1995 the plaintiff further extended his claims. 20.", "On 27 September 1995, 26 January and 3 July 1996 the Regional Court held further hearings. On the latter date the plaintiff was granted a 15-day time-limit to elaborate further the quantification of claims. His memorandum on that subject was returned for supplementation on 1 August 1996. The revised memorandum reached the Regional Court on 9 September 1996. 21.", "On 20 November 1996 the Regional Court held a further hearing and appointed an expert accountant. On 24 January 1997 the Regional Court ordered the plaintiff to advance payment for the expert. 22. On 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. On 12 December 1997 the proceedings were resumed and a hearing was held.", "23. On 13 February 1998 the Regional Court discontinued, on account of the plaintiff’s partial waiver, the proceedings in respect of some of the defendants. 24. On 25 February 1998 the Regional Court gave a partial judgment and awarded the plaintiff HUF 858,200 plus accrued interest. On 18 March 1998 the plaintiff appealed to the Supreme Court.", "25. On 27 December 1998 the plaintiff died. On 20 October 1999 the applicant and his late father’s widow entered the domestic proceedings as the plaintiff’s successors. 26. On 10 November 1999 the Supreme Court held a hearing.", "27. On 22 February 2000 the Supreme Court gave a second instance judgment, partly amending the decision of 25 February 1998. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant submitted that the civil action brought by his late father was not heard within a “reasonable time” as required by Article 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 ... .” The Government rejected this submission.", "A. Period to be considered 29. The period to be considered began in October 1984, when the applicant’s father brought an action before the Buda Central District Court, and ended on 22 February 2000 when the Supreme Court gave its judgment. They therefore lasted about fifteen years and four months before three levels of jurisdiction. The Court observes that, when examining the length of the proceedings, the period to be considered only begins on 5 November 1992, the date of the Convention’s entry into force in respect of Hungary.", "However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see the Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). After this date, the proceedings were pending for another seven years and four months during which period two court instances dealt with the case. B. Reasonableness of the length of the proceedings 30. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, as a recent authority, Humen v. Poland, [GC], no.", "26614/95, § 60, 15 October 1999). 1. Complexity of the case 31. In the Government’s submission, the case, although simple in nature, became rather complicated on account of the plaintiff’s repeated extensions and modifications of his claims and an increase in the number of defendants. 32.", "Like the applicant, the Court considers that in fact the case was not very complex. 2. Conduct of the parties 33. The Government argued that the delays were largely imputable to the plaintiff’s conduct – in particular, he was repeatedly ordered to supplement his claims – which contributed decisively to the slowing down of the proceedings. The applicant maintained, on the contrary, that his father had shown due diligence.", "34. The Court points out that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). In the instant case, the Court observes that the plaintiff extended or modified his claims three times, which clearly caused some delay.", "The time required for him to supplement his claims (a 30-day period following 4 November 1992 and a further period between 3 July and 9 September 1996) amounted to some three months altogether. Moreover, some ten months elapsed before the applicant resumed the proceedings after his father’s death (27 December 1998 - 20 October 1999). These delays cannot, therefore, be imputed to the State. 3. Conduct of the judicial authorities 35.", "The Government submitted that the Hungarian courts had acted without procrastination. The applicant contested this. 36. In requiring cases to be heard within a “reasonable time”, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see, among other authorities, the H. v. France judgment previously cited, § 58). 37.", "At least two periods of unexplained delay are apparent in the instant case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 – periods amounting to some 28 months altogether – the Regional Court’s activity being mostly limited to obtaining expert opinions. 38. Having regard to all the circumstances of the case and, more particularly its overall length, the Court considers that the total duration of the proceedings was excessive. The Court concludes therefore that the case of the applicant’s father was not heard within a “reasonable time”. Consequently, there has been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant claimed 9 million Hungarian forints (HUF) (approximately EUR 37,043) for non-pecuniary damage.", "41. The Government found the applicant’s claim excessive. 42. Having regard to the overall length of the proceedings and ruling on an equitable basis, the Court awards the sum of EUR 5,500 in respect of non-pecuniary damage. B.", "Costs and expenses 43. The applicant claimed HUF 161,749 (approximately EUR 666) for costs and expenses incurred in the domestic proceedings and before the Convention institutions. 44. The Government noted that the applicant was not represented by a lawyer before the Court and submitted that the costs and expenses claimed were mainly incurred in the domestic proceedings. 45.", "Although it is true that only those costs incurred in domestic proceedings in an attempt to prevent or redress the violation found by the Court may be reimbursed, nevertheless unreasonable delays in proceedings necessarily involve an increase in an applicant’s costs (see Bouilly v. France, no. 38952/97, § 33, 7 December 1999). Therefore the Court, making an assessment on an equitable basis, awards the applicant EUR 500. C. Default interest 46. According to the information available to the Court, the statutory rate of interest applicable in Hungary at the date of adoption of the present judgment is 11% per annum.", "FOR THESE REASONS, THE COURT 1. Holds by 6 votes to 1 that there has been a violation of Article 6 § 1 of the Convention; 2. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, (i) EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage, and (ii) EUR 500 (five hundred euros) for costs and expenses; (b) that simple interest at an annual rate of 11% shall be payable from the expiry of the above-mentioned three months until settlement; 3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 April 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. DolléJ.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) Concurring opinion of Judge Loucaides; (b) Dissenting opinion of Judge Mularoni. J.-P.C.S.D.CONCURRING OPINION OF JUDGE LOUCAIDES I agree with the finding that there has been a violation of Article 6 in this case because of unexplained delays in the proceedings attributable to the judicial authorities of the respondent State. However, my approach differs from that of the majority in two respects: a) On the basis of the material before the Court, I confine my finding only to the periods 28 April 1993 until 28 September 1994 and 20 November 1996 until 6 June 1997, amounting to some 23 months altogether, which, I believe, are excessive. I do not find any other unexplained delays in this case attributable to the State. The nature of the proceedings and, in particular, the conduct of the applicant were basically responsible for the duration of the proceedings.", "b) The majority took into account expressly the “overall length” of the proceedings. In my opinion it is wrong to rely on the “overall length” of any proceedings as being by itself a ground or factor for finding a breach of the obligation under Article 6 of the Convention for a hearing “within a reasonable time”. Such a breach can only be established if there are unreasonable delays in the proceedings attributable to the State. Proceedings may be protracted by the conduct of the applicant or by the complexity and general nature of the case. In such cases, even if the “overall length” of the proceedings is excessive, no responsibility should be borne by any State organ so long as the latter did not contribute in any way to the prolongation of the duration of the proceedings.", "I reiterate here what I have said in the case of Maczynski v. Poland (application no. 43779/98, judgment, 15 January 2002). “It is true that according to the case-law of the Court, the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. But there is no absolute or objective limit to the length of time that can be taken. The question whether there has been a delay contrary to the requirements of Article 6 § 1 cannot be decided in abstracto with reference only to the total length of the proceedings.", "Whether there has been an unreasonable delay is a matter that must be assessed in the light of the particular facts of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).” A breach of Article 6 § 1 can only be found where it is established that there have been delays attributable to the State regardless of the total length of proceedings. Thus, in the case of Ciricosta and Viola v. Italy (judgment of 4 December 1995, Series A no. 337-A), in which the period in issue was more than 15 years for civil proceedings that were still pending at the time of the judgment, the Court held: “even though a period of more than fifteen years for civil proceedings that are still pending may, on the face of it, seem unreasonable, the conduct of the applicants ... leads the Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded” (p. 11, § 32). In the same case the Court stated the following: “The Court reiterates in the first place that only delays attributable to the State may justify a finding of failure to comply with the ‘reasonable time’ requirement” (p. 10, § 28).", "DISSENTING OPINION OF JUDGE MULARONI I disagree with the majority that the length of the proceedings was unreasonable. It is true that the proceedings lasted 15 years and 4 months, but apart from the fact that only about 7 years and 3 months are covered by the Convention (since Hungary ratified it on 5 November 1992), I emphasise that “only delays attributable to the State may justify a finding of a failure to comply with the ‘reasonable time’ requirement” (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). Even if, according to the Court case-law, “in assessing the reasonableness of the time elapsed after this date, account must be taken of the then state of the proceedings” (see, among other authorities, Foti and others v. Italy judgment of 10 December 1982, Series A no.", "56, p. 18, § 53), it seems to me that the delays were largely attributable to the plaintiff’s conduct. We know from the facts that: 1) in October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. In September 1986 the Buda Central District Court informed him that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants (hence, as far as I understand, about two years were lost due to the plaintiff’s mistake); 2) on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. On 22 May 1991 the Budapest Regional Court, quashing the first-instance judgment, pointed out that “due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence” (hence, as far as I understand, more than two years were again lost due to the plaintiff’s fault); 3) on 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims; 4) on 1 March 1995 the plaintiff again modified his claims; 5) on 16 June 1995 the plaintiff further extended his claims; we know from the Government’s observations that, at the hearing of 3 July 1996, the applicant again extended his claims; as a consequence the plaintiff was granted a term to elaborate further quantification of his claims; his memorandum was returned for supplementation on 1 August 1996 and the revised memorandum reached the Regional Court on 9 September 1996; 6) on 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. The proceedings were resumed as early as 12 December 1997 (as far as I understand, the plaintiff waited about 6 months before resuming the proceedings and the judicial authorities cannot be held responsible for this delay); 7) due to the plaintiff’s partial waiver, on 13 February 1998 the Regional Court discontinued the proceedings in respect of some of the defendants; 8) after the plaintiff’s death (27 December 1998), the applicant and his late father’s widow entered the proceedings as the plaintiff’s successors on 20 October 1999 (i.e., about 10 months later).", "We also know from the Government’s observations that: 1) on 28 April 1993 the court granted the plaintiff a respite till 1 June to enable him to elaborate his legal opinion on the defendant’s submissions lodged in the meantime; 2) on 1 September 1993 the plaintiff requested the court for a respite as a new legal representative had entered the suit. Therefore the court adjourned the hearing till 10 December, pointing out the claims the plaintiff was expected to specify within 45 days. On 10 December 1993 some of the defendants requested the court to adjourn the hearing on account of the new claims raised; 3) the new hearing was held on 9 March 1994; the court had to adjourn it again due to new documents submitted at the hearing; 4) on 4 May 1994 the Budapest Regional Court appointed a technical expert from the Institute of Forensic Technical Expertise. On 28 September 1994 the court specified the questions to be answered by the expert and it fixed 60 days from the delivery of its decision for the presentation of the expert opinion. On 27 October 1994 the Institute indicated to the court that owing to lack of competence it was not able to present the expert opinion.", "Therefore, on 7 November, the Budapest Regional Court appointed another expert, who presented his opinion on 17 December 1994; 5) at the hearing of 26 January 1996 the plaintiff requested the court to transfer the case to the Prosecutor’s Office concerning his allegations of abuses by the defendants. The court adjourned the hearing, transferred the case-file to the Prosecutor’s Office (which found that the documents did not contain anything in particular which might call for the institution of criminal proceedings) and, after receiving the file back, fixed the date of the next hearing; 6) on 20 November 1997 the plaintiff again extended his claims. In consideration of the above, I disagree that “at least two periods of unexplained delay are apparent in this case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 - periods amounting to some 28 months altogether - the Regional Court’s activity being mostly limited to obtaining expert opinions” (§ 37 of the judgment). Even if the proceedings could have been dealt with faster at times, I believe that these delays did not exceed a reasonable time and that the length of the proceedings was mostly due to the plaintiff’s conduct. For all these reasons, I conclude that the length of the proceedings did not exceed the “reasonable time” requirement and that the applicant’s rights under Article 6 § 1 of the Convention have not been violated." ]

[ "FIRST SECTION CASE OF EMMER-REISSIG v. AUSTRIA (Application no. 11032/04) JUDGMENT STRASBOURG 10 May 2007 FINAL 10/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Emmer-Reissig v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11032/04) 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 Herwig C. Emmer-Reissig (“the applicant”), on 11 March 2004. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Mr F. Trauttmannsdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.", "3. The applicant alleged, in particular, that the Administrative Court failed to hold an oral hearing, which was in breach of Article 6. 4. On 30 November 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 THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1921 and lives in Klosterneuburg. 6. He is a lawyer practising in Klosterneuburg and the owner of a parcel of land in the municipality of Königstetten, which is designated as “forest” land in the zoning plan. On parts of this parcel – approximately 1,500 square meters – he runs an organic farm on a part-time basis, breeding sheep and goats.", "Besides that, he keeps bees and grows herbs. 7. On 18 August 1998 the applicant applied to the mayor of Königstetten for a building permit for a shed, to be used as a shelter for sheep and goats in summer and beehives in winter. It is also designed as a refuge for farm workers. He therefore submitted construction plans for the planned shed and a map of the land in question.", "8. The mayor rejected the applicant's request on 16 February 2000. Relying on a report by an agricultural expert at the Lower Austria Regional Government, he stated that, in view of its shape, size and design, it would not qualify as a farm building and that even if it was an agricultural construction, it could not be erected on the land in question, as the latter had been designated as forest and grassland. 9. The applicant lodged an appeal with the municipality of Königstetten on 10 April 2000.", "On 3 July 2000 the municipality dismissed his appeal on the same grounds. 10. Subsequently, on 13 September 2000, the applicant filed an objection (Vorstellung) with the Lower Austria Regional Government and requested it to hear representatives of the District Farmer's Association (DFA, Bezirksbauernkammer) and the Austrian beekeeper association (ABA, Österreichischer Imkerbund) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise. 11. The Regional Government quashed the municipality's decision on 10 January 2001 and referred the case back to the municipal council.", "It stated that the municipality had failed to address all the points of appeal. 12. The applicant lodged further grounds in support of his appeal on 19 March, 4 and 24 April 2001. In addition to his comments on the decision of 3 July 2000, he filed requests for the taking of evidence. He also submitted a statement by the Tulln Administrative District Authority and a document he referred to as a business plan.", "13. On 23 November 2001 the Königstetten Municipality requested the applicant to comment on an expert opinion it had obtained from the Planning Office at the Lower Austria Regional Government (Gebiets-bauamt) on 31 October 2001. It stated that by far the largest part of the land was covered by forest, which would impede serious agricultural activities. With reference to the earlier decisions, it repeated that, judging by its design and shape, the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities, but rather to use it for different purposes. 14.", "The applicant commented on the expert opinion on 10 December 2001. Claiming that the authorities had incorrectly established the relevant facts, he contended that the expert opinion was in breach of Austrian law and European Community law. Besides that, the applicant repeated his request to obtain opinions from the DFA, the ABA and a certain organic farming association (Biobauernverband Ernte) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria. He also filed an application for an on-site inspection of the land at issue. 15.", "On 29 January 2002 the municipal council also rejected the applicant's appeal. It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use. 16. The applicant filed an objection (Vorstellung) with the Lower Austria Regional Government again on 11 February 2002, submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own. In addition, he claimed that the decision was in breach of European Community law.", "17. Subsequently, on 12 March 2002, the applicant lodged a complaint with the Administrative Court and requested an oral hearing. 18. On 30 July 2002, without holding an oral hearing, the Administrative Court rejected the complaint as inadmissible for non-exhaustion of administrative remedies, as the applicant had failed to file an objection against the decision of 29 January 2002. 19.", "The applicant's objection of 12 March 2002 was dismissed by the Lower Austria Regional Government on 22 July 2002. 20. The applicant lodged a further complaint with the Administrative Court on 22 August 2002 and repeated his request for an oral hearing. 21. On 16 September 2003 the Administrative Court dismissed the applicant's complaint and rejected his request for an oral hearing.", "It found that, despite its request for a detailed business plan, the applicant had failed to provide one. Accordingly, the alleged need for a shed for the so-called agricultural enterprise had not been made out. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LACK OF AN ORAL HEARING BEFORE THE ADMINISTRATIVE COURT 22. The applicant complained under Article 6 § 1 of the Convention about the Administrative Court's refusal to hold an oral hearing.", "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 applicant submitted that the Administrative Court had unlawfully dismissed his request to hold an oral hearing, thereby depriving him of the opportunity to discuss the expert opinions in the context of a public hearing. Since an oral hearing could have elucidated the facts of the case, the Court's refusal to hold one was in breach of Article 6 of the Convention. 25. The Government, referring to the Court's case-law, argued that under exceptional circumstances the domestic courts, for reasons of efficiency, could refrain from holding a public and oral hearing where only questions of law or highly-technical questions were to be determined or where questions of fact or law raised by the applicant did not require such a hearing.", "Since both the facts and the question of law had been determined in the light of the Administrative Court's constant case-law, it could abstain from holding a public hearing, thus avoiding further procedural delays. Furthermore, the applicant had failed to indicate why he considered a public hearing necessary. 26. The Court notes that the applicant's case was heard by the mayor, the municipal council and the Regional Government, that is, purely administrative authorities, and then by the Administrative Court, which dismissed the applicant's complaint. Although the applicant argued that the Administrative Court did not qualify as a tribunal, there is no indication in the file that the Administrative Court's scope of review was insufficient in the circumstances of the case (see, for instance, Fischer v. Austria, judgment of 26 April 1995, Series A no.", "312, pp. 17-18, §§ 30-34, with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant's case. 27. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public has been found to be invalid (see Eisenstecken v. Austria, no.", "29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing (see, for instance, Stojakovic v. Austria, no. 30003/02, § 53, 9 November 2006, with further references). 28. The Court has accepted such exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp.", "19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court has had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case file and the parties' written observations (see, among other authorities, Döry v. Sweden, no. 28394/95, 12 November 2002, and Pitkänen v. Sweden (dec.), no.", "52793/99, 26 August 2003). 29. Turning to the circumstances of the present case, the Court notes that the dispute, as presented by the applicant to the Administrative Court, concerned the issue whether the plot of land in question could be used as an agricultural estate. 30. The Court cannot find that the subject matter of the dispute was of such a nature – namely, highly technical or exclusively legal – as to dispense the national authorities from their obligation to hold a hearing.", "31. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 32. The applicant further complained about the authorities' refusal to hear evidence from certain experts on agriculture and organic farming.", "33. The Court notes that this complaint is closely linked to the complaint examined above. It must therefore be declared admissible as well. However, in view of its findings in paragraph 31 above the Court does not find it necessary to examine these complaints separately under Article 6 § 1 of the Convention. 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.” 35. The applicant did not submit any claim for just satisfaction. Accordingly, the Court considers it unnecessary to award him a sum under that head. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the application admissible; 2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention as regards the lack of an oral hearing before the Administrative Court; 3. Holds by four votes against three that it is unnecessary to examine the applicant's further complaint under Article 6 § 1 of the Convention. Done in English, and notified in writing on 10 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following is annexed to this judgment: - dissenting opinion of Mr Loucaides joined by Mr. Spielmann, and Mr. Malinverni.", "C.L.R.S.N. DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES SPIELMAN AND MALINVERNI I am unable to agree with the view of the majority according to which having found a violation of Article 6 § 1of the Convention because of the lack of an oral hearing before the Administrative Court it is unnecessary to examine the applicant's further complaint under the same Article about unfairness of the proceedings in this case. This additional complaint, relates, in my view, to a separate and autonomous breach which if it is established needs a different remedy than the one relating to the oral hearing. And, conversely, if the oral hearing breach is remedied that does not automatically give a solution to the other complaint.The two complaints being completely unconnected a separate examination of them was necessary." ]

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